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Secretary of State Warner sends cease and desist to opponent over attack ad

Secretary of State Mac Warner (right) sent a cease and desist to candidate Natalie Tennant (left) Thursday.
Secretary of State Mac Warner (right) sent a cease and desist to candidate Natalie Tennant (left) Thursday.(WDTV, Natalie Warner for WVSOS)
Published: Oct. 16, 2020 at 6:50 PM EDT
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BRIDGEPORT, W.Va (WDTV) - Just 18 days until election day and candidates are making their final case to voters.

One of the races that is getting heated is for the Secretary of State position between incumbent Secretary of State Mac Warner (R) and Natalie Tennant (D). The race took a turn this week as Secretary Mac Warner sent a cease and desist to his opponent Natalie Tennant over a new ad.

The ad, which has aired since Wednesday, accuses Secretary Warner of allowing an employee to work on state time as he hosts a morning radio show on WCHS Radio.

In a statement by the Secretary’s council, the WVSOS says that the employee has flexible hours and that he is allowed that time off and that the cease and desist was to clear the language used in the ad that makes it sound like the employee works at the radio station while “on the clock.”

The cease and desist request to the Tennant campaign pertains primarily to a TV ad that claims, in part, a WVSOS employee works a second job “on state time.”

The phrase “on state time” means that a state employee, while on the clock for the state, is being paid by the state while working a second job. This claim is wholly false, and is an accusation that our office is breaking the law by paying a state employee who is not on the clock while at his secondary employment.

After our cease and desist request was sent to the Tennant campaign, the campaign has attempted to clarify that the candidate disagrees from a policy standpoint that any state employee should be allowed to have secondary employment “during regular office hours.” This later clarification is a matter of policy, not fact or law.

Regarding the employee’s position in the office, he is a field representative who has different hours each week depending on the time of year. The employee’s schedule is such that he has flexible hours, so long as he works at least 37.5 hours per week to maintain his full-time status, or otherwise he must use Annual Leave to make up the difference. His bi-weekly pay is based on the number of hours worked, which are recorded daily on his timecard. To be clear, this employee has never been “on state time” while at his secondary employment, which is clearly evident in the employee contract and timecards provided to the Tennant campaign.

Under the law, state employees are permitted to work a second job, even during regular business hours of the agency, so long as certain requirements prescribed by the WV Ethics Commission are met. The Ethics Commission Rule can be viewed at CSR § 153-14-3 (link: (http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=7344&Format=PDF). In sum, a state employee can work at a second job during the regular office hours of the agency if (1) the employee is not paid by the state while at the second job, and (2) the employee keeps a record of his time. Some employees must file their timecards with the Ethics Commission, but our employee in this case falls under one of the exceptions to that requirement. Therefore, both the employee and this office are fully compliant with the law.

To summarize the issue, the cease and desist request was in no manner in response to some claim that an employee is working a second job during business hours of the office. Rather, the cease and desist is directed only with regard to the false claim in the TV ad, which states a WVSOS employee works a second job “on state time.” The ad does not say the employee works a second job “during regular business hours,” it says he works a second job “on state time,” which is simply not true and evident in his employment contract and official time cards.

As stated above, our employee has never been paid by the state while at his secondary employment. Therefore, he is not “on state time” while at his secondary employment as the TV ad falsely claims.

Donald Kersey, General Counsel

In a debate Thursday between the two candidates at Shepherd University, Secretary Warner called it a political attack, dismissing the claim, but Tennant says it is a major issue.

“There are a lot of people who have two jobs and work second jobs. But they do not go to their first job and go ‘oh hey, I need to leave for two hours.’ It is just not right. It is not fair to the people of West Virginia who should be served by the Secretary of State’s office. This is why I am calling him out on it. This is another example of fraud, waste and abuse,” said Tennant.

In a press release, Tennant says that she will continue airing this ad and that the cease and desist violates her first amendment rights.

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