CHARLESTON — Should West Virginia public employees or elected officials use official government email accounts to send political campaign emails to other state employees? The answer may be clear to some, but state rules are murky on the subject.

Last Wednesday, an employee of the West Virginia Department of Transportation and Division of Highways used their state government email account to send an invitation for Gov. Jim Justice’s Thursday U.S. Senate announcement at the Justice-owned Greenbrier Resort in White Sulphur Springs to 41 wv.gov email addresses, including most of the top leaders of DOT/DOH.

“Just so you know, you are cordially invited to attend the event according to the invitation herewith,” wrote Charlene Chandler, a highway division manager for DOT. “Please note that attendance will be on your own accord and travel expenses will not be reimbursable.”

One of the individuals on the email chain was Jimmy Wriston, DOT Secretary and DOH Commissioner. In an emailed statement Monday afternoon, Wriston said he had first received the invitation to the Justice event – which did not include the subject of the event but was clearly marked “Paid for by Jim Justice” – on April 21 and directed DOT’s Central Correspondence office to send the invitation to all DOT employees last Tuesday.

“After further review and consultation on this matter, and in hindsight, I probably would not have shared the invitation in the manner that I did,” Wriston said. “I apologize for any appearance of impropriety.”

The West Virginia Ethics Act includes a prohibition against public officials or public employees “knowingly and intentionally” using their office or the perceived prestige of their office for their own private gain or the private gain of another person. However, the Ethics Act makes an exception for what it calls “de minimis,” or trivial, private gain.

“Incidental use of equipment or resources available to a public official or public employee by virtue of his or her position for personal or business purposes resulting in de minimis private gain does not constitute use of public office for private gain under this subsection,” according to State Code 6B-2-5(b)(1).

According to the West Virginia Ethics Commission, a previous advisory opinion from 1995 sought to answer a question from an unnamed public official about whether it was acceptable to use “office space, stationary, phones, and other items provided to him for use in the performance of his official responsibilities including his public title, to solicit campaign contributions on behalf of candidates for public office.”

“While a significant use of public resources to endorse a candidate would be a violation of the Ethics Act, the use of secretarial assistance, letterhead stationery and office equipment to produce an occasional letter of endorsement would not,” according to the advisory opinion. “Such limited use of resources is de minimus, and is not a material violation.”

But as for using government emails to send political messages, Ethics Commission Executive Director Kimberly Weber said it’s not clear whether that would go beyond the “de minimis” standard.

“The Ethics Commission has not issued an opinion directly answering your question,” Weber said. “The general rule is that state resources should not be used for political purposes, but the de minimis exception must also be analyzed and applied based upon the specific facts.”

The West Virginia Division of Personnel issued updated guidance in April 2022 about what kinds of political activities are allowed or not allowed for classified employees within state agencies. According to the DOP, state employees may not “post or distribute campaign literature in a state office building or during work hours. This includes employee organization bulletin boards.”

The DOP also states that public employees cannot “use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, for the purpose of influencing the vote or political action of any person.” With the Justice invitation not stating his announcement was for his U.S. Senate candidacy, it is unclear whether these rules would apply.