H. B. 2005
(By Delegates Amores, Mahan, Linch, Faircloth and Trump)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, two, three, four, five,
six and seven, article nine-a, chapter six of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; to further amend said article by adding thereto
five new sections, designated sections eight, nine, ten,
eleven and twelve; to amend and reenact section two, article
five-g, chapter sixteen of said code; and to further amend
said article by adding thereto five new sections, designated
sections three, four, five, six and seven, all relating
generally to open governmental and nonprofit hospital
meetings; and providing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, six and seven,
article nine-a, chapter six of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; that said article be further amended by adding thereto
five new sections, designated sections eight, nine, ten, eleven and twelve; that section two, article five-g, chapter sixteen of
said code be amended and reenacted; and that said article be
further amended by adding thereto five new sections, designated
sections three, four, five, six and seven, all to read as
follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-1. Declaration of legislative policy.
The Legislature hereby finds and declares that public
agencies
boards, commissions, governing bodies, councils and all
other public bodies in this state exist for the singular purpose
of representing citizens of this state in governmental affairs,
and it is, therefore, in the best interests of the people of this
state
for all proceedings of all public bodies to be conducted in
an open and public manner that the proceedings of public agencies
be conducted openly, with only a few clearly defined exceptions.
The Legislature hereby further finds and declares that the
citizens of this state do not yield their sovereignty to the
governmental agencies
which that serve them. The people in
delegating authority do not give their public servants the right
to decide what is good for them to know and what is not good for
them to know. The people insist on remaining informed so that
they may retain control over the instruments of government
created by them.
The constitution of this state provides that the powers of
government reside in all the citizens of the state and can be rightfully exercised only in accordance with their will and
judgment. Officers and employees of the body politic of this
state are the trustees and servants of the people and are at all
times amenable and accountable to the people.
Because all power is vested in and consequently derived from
the people, it is axiomatic that for representative government to
succeed, the citizens must have the requisite knowledge for
responsible self-government.
Open government allows the public to educate itself about
government decision-making through individuals' attendance and
participation at government functions, distribution of government
information by the press or interested citizens, and public
debate on issues deliberated within the government.
Openness increases government responsiveness to the needs of
the public by allowing the public to compete with special
interest groups for attention and ultimately, beneficial action.
Increased accountability tempers the insensitivity of officials
to the needs of the public and provides a check for abuses that
are likely to occur when hidden from public scrutiny. Openness
discourages bureaucratic red tape and malaise.
Public access to information promotes attendance at
meetings, improves planning of meetings, and encourages more
thorough preparation and complete discussion of issues by
participating officials. The government also benefits from
openness because better preparation and public input allow
government agencies to gauge public preferences accurately and thereby tailor their actions and policies more closely to public
needs. Public confidence and understanding ease potential
resistance to government programs.
Accordingly, the benefits of openness inure to both the
public affected by governmental decision making and the decision
makers themselves. It is in the best interest of the people and
the government that the proceedings of public agencies be
conducted openly, with only a few clearly defined exceptions.
The people, being the repository of democratic power, must
have knowledge so that they may retain control over the
instruments of government created by them.
§6-9A-2. Definitions.
As used in this article:
(1) "Agency attorney" means an attorney employed or
retained by a public agency or governing board or employed or
retained by another public officer or agency to protect or
represent the interests of the agency.
(1)(2) "Decision" means any determination, action, vote or
final disposition of a motion, proposal, resolution, order,
ordinance or measure on which a vote of the governing body is
required at any meeting at which a quorum is present.
(2) (3) "Executive session" means any meeting or part of a
meeting of a governing body which is closed to the public.
(3) (4) "Governing body" means the members of any
public
body public agency having the authority to make decisions for or
recommendations to a
public body public agency on policy or administration, the membership of which governing body consists
of two or more members; for the purposes of this article, a
governing body of the Legislature
shall be is any standing,
select or special committee as determined by the rules of the
respective houses
thereof of the Legislature.
(4) "Meeting" means the convening of a governing body of a
public body for which a quorum is required in order to make a
decision or to deliberate toward a decision on any matter, but
such term does not include (a) any meeting for the purpose of
making an adjudicatory decision in any quasi-judicial,
administrative or court of claims proceeding, (b) any on-site
inspection of any project or program, or (c) any political party
caucus;
(5) "Political subdivision" means any county, county board
of education or municipality in or any other political
subdivision of this state;
(6) "Public body" means any executive, legislative or
administrative body or agency of this state or any political
subdivision, or any commission, board, council, bureau, committee
or subcommittee or any other agency of any of the foregoing, and
such term shall not be construed to include the judicial branch
of government, state or local; and
(5) "Meeting" means the assembling of at least the
requisite number of members of a governing body that is required
to take action on behalf of a public agency, if the assembled
members carry on deliberations on some matter that is susceptible to disposition by the public agency or its governing body, if it
is reasonably foreseeable that action may be taken on that matter
by the governing body and if it is intended that the
deliberations will influence or determine the action taken by the
governing body. The term "deliberations" includes, but is not
limited to, an evaluation of information, the exchange of views
or opinions, the examination of issues and the weighing of
possible alternatives. On the question of whether or not a
gathering constitutes a meeting, neither a characterization of
the gathering by the public agency or its governing body nor an
expression of intent is controlling, and the issue is to be
determined by what occurs at the gathering, rather than on its
purpose or how it is conducted. A determination in a particular
case as to whether a session or gathering constitutes a meeting
requires an inquiry into the fundamental objectives set forth in
section one of this article and into the functional character of
the gatherings or sessions that the Legislature intended this
article to apply. Among numerous criteria which may be examined
to determine whether a violation of this article has occurred,
none of which may be controlling on its own, the ultimate
examination is of the decision-making process as a whole to
determine if the public has been deprived of a meaningful
opportunity to respond to, or hold officials accountable for,
their private deliberations. The term does not include:
(A) Any meeting for the purpose of making an adjudicatory
decision in any quasi-judicial, administrative or court of claims proceeding;
(B) Any on-site inspection of any project or program; or
(C) Any political party caucus.
(6) "Public agency" means any administrative or legislative
unit of state, county or municipal government, including any
department, division, bureau, office, commission, authority,
board, public corporation, section, committee, subcommittee or
any other agency or subunit of the foregoing, authorized by law
to exercise some portion of executive or legislative power. The
term "public agency" does not include courts created by article
eight of the West Virginia constitution or the system of family
law masters created by article four, chapter forty-eight-a of
this code.
(7) "Quorum" means
unless otherwise defined by applicable
law, the gathering of a simple majority of the constituent
membership of a governing body,
unless applicable law provides
for varying the required ratio. The actual physical presence of
members is not required. The simultaneous communication by
telephone conference or other electronic means of the requisite
number of the members, or a series of two-party contacts by
telephone or other electronic means may constitute a meeting if
the other elements are present. Further, if a governing board
consisting of five or more members is broken into nonquorum-sized
groups that participate in a series of meetings and by
interchanging members reach an agreement on a decision, so as to
splinter a quorum in form but not in substance, then, an actual quorum exists.
(8) "Work product" or "attorney work product" means
material prepared by an agency attorney, or at the agency
attorney's express direction, in anticipation of imminent or
pending civil or criminal litigation or an adversarial
administrative proceeding, which material reflects a mental
impression, conclusion, litigation strategy, opinion or legal
theory of the attorney or the public agency. Work product in the
form of memoranda, notes and other recorded work product, whether
reduced to a document or stored electronically, is a public
record.
§6-9A-3. Proceedings to be open; public notice of meetings.
Except as expressly and specifically otherwise provided by
law, whether heretofore or hereinafter enacted, and except as
provided in section four of this article, all meetings of any
governing body shall be open to the public. Any governing body
may make and enforce reasonable rules
and regulations for
attendance and presentation at any meeting where there is not
room enough for all members of the public who wish to attend.
and
This article
shall not be construed to does not prohibit the
removal from a meeting of any member of the public who is
disrupting the meeting to the extent that orderly conduct of the
meeting is compromised:
Provided, That persons who desire to
address the governing body
shall may not be required to register
to address
said the body more than fifteen minutes prior to time
the scheduled meeting is to commence.
Each governing body shall promulgate rules by which the
time,
and place
and agenda of all regularly scheduled meetings
and the time, place and purpose of all special meetings are made
available, in advance, to the public and news media, except in
the event of an emergency requiring immediate official action.
Each governing body of the executive branch of the state
shall file a notice of any meeting with the secretary of state
for publication in the state register. Each notice shall state
the time, place and purpose of the meeting. Each notice shall be
filed in a manner to allow each notice to appear in the state
register at least five days prior to the date of the meeting.
In the event of an emergency requiring immediate official
action, any governing body of the executive branch of the state
may file an emergency meeting notice at any time prior to the
meeting. The emergency meeting notice shall state the time,
place and purpose of the meeting and the facts and circumstances
of the emergency.
Upon petition by any adversely affected party any court of
competent jurisdiction may invalidate any action taken at any
meeting for which notice did not comply with the requirements of
this section.
§6-9A-4. Exceptions.
(a) No provision of this article shall be construed to
prevent the The governing body of a
public body from holding
public agency may hold an executive session during a regular,
special or emergency meeting,
after in accordance with the provisions of this section. During the open portion of the
meeting, prior to convening an executive session, the presiding
officer
has identified of the governing body shall identify the
authorization under this
article section for
the holding
of such
the executive session and
has presented present it to the
governing body and to the general public, but no decision
shall
may be made in
such the executive session.
(b) An executive session may be held only upon a majority
affirmative vote of the members present of the governing body of
a
public body as defined in this article for the following:
public agency. A public agency may hold an executive session and
exclude the public only when a closed session is required for any
of the following actions:
(1)
Matters To consider acts of war, threatened attack from
a foreign power, civil insurrection or riot;
or
(2)
The To consider:
(A) Matters arising from the appointment, employment,
retirement, promotion,
transfer, demotion, disciplining,
resignation, discharge, dismissal or compensation of
any a public
officer or employee,
or other personnel matters, or prospective
public officer or employee unless the public officer or employee
or prospective public officer or employee requests an open
meeting; or
(B) For the purpose of conducting a hearing on a complaint,
charge or grievance against a public officer or employee, unless
such the public officer or employee requests an open meeting.
or General personnel policy issues may not be discussed or
considered in a closed meeting. A governing body may not
consider the qualifications, competence, performance, character,
fitness, appointment or removal of a member of the governing body
or another governing body and may not consider or fill a vacancy
among its own membership except in an open meeting. Final action
by a public agency having authority for the appointment,
employment, retirement, promotion, transfer, demotion,
disciplining, resignation, discharge, dismissal or compensation
of an individual shall be taken in an open meeting;
(3)
The To decide upon disciplining, suspension or expulsion
of any student in any public school or public college or
university, unless
such the student requests an open meeting;
or
(4)
The issuance, effecting, denial, suspension or
revocation of a To issue, effect, deny, suspend or revoke a
license, certificate or registration under the laws of this state
or any political subdivision, unless the person seeking
such the
license, certificate or registration or whose license,
certificate or registration was denied, suspended or revoked
requests an open meeting;
or
(5)
The To consider the physical or mental health of any
person, unless
such the person requests an open meeting;
or
(6) Matters which, if discussed in public, would be likely
to affect adversely the reputation of any person; or
(6) To discuss any material the disclosure of which would
constitute an unwarranted invasion of an individual's privacy such as any records, data, reports, recommendations or other
personal material of any educational, training, social service,
rehabilitation, welfare, housing, relocation, insurance and
similar program or institution operated by a public agency
pertaining to any specific individual admitted to or served by
the institution or program, the individual's personal and family
circumstances;
(7)
Any To plan or consider an official investigation or
matters matter relating to crime prevention or law enforcement;
or
(8)
The development of To develop security personnel or
devices;
or
(9)
Matters To consider matters involving or affecting the
purchase, sale or lease of property, advance construction
planning, the investment of public funds or other matters
involving
commercial competition which, if made public, might
adversely affect the financial or other interest of the state or
any political subdivision:
Provided, That the minutes of the
executive session and the matters discussed in that session are
exempt from disclosure under the open meetings requirements of
this article only until the competition has been decided;
(10) To avoid the premature disclosure of an honorary
degree, scholarship, prize or similar award;
(11) To consider the work product of an agency attorney or
the agency: Provided, That the minutes of the executive session
and the work product discussed in that session are exempt from disclosure under the open meetings requirements of this article
only until the conclusion of the litigation or adversarial
administrative proceeding for which the work product was
prepared. Discussion of legal issues relating to general policy
matters may not be discussed in a closed session and nothing in
this article permits a public agency to close a meeting that
otherwise would be open, merely because an agency attorney is a
participant. If the public agency has approved or considered a
settlement in closed session, the terms of that settlement shall
be reported by the public agency and entered into its minutes
within a reasonable time after the settlement is concluded;
(12) To discuss any matter which, by express provision of
federal law or state statute or rule of court is rendered
confidential, or which is not considered a public record within
the meaning of the freedom of information act as set forth in
article one, chapter twenty-nine-b of this code;
(13) Except for the receipt and introduction of evidence,
which shall be done in an open meeting, to deliberate for the
purposes of weighing the evidence and assessing the applicable
provisions of law during the process of making an adjudicatory
decision in any administrative quasi-judicial proceeding or any
legislative court of claims proceeding: Provided, That when an
adjudicatory decision is finalized, the findings of fact and
conclusions of law relied upon in reaching the decision shall be
reduced to writing and made available to the public;
(14) To carry out an on-site inspection of any project or program; or
(15) To conduct a political party caucus.
§6-9A-5. Minutes.
(a) Each governing body shall provide for the preparation of
written minutes of all of its meetings.
All such Subject to the
exceptions set forth in section four of this article, minutes
shall be available to the public within a reasonable time after
the meeting and shall include, at least, the following
information:
(1) The date, time and place of the meeting;
(2) The name of each member of the governing body present
and absent;
(3) All motions, proposals, resolutions, orders, ordinances
and measures proposed, the name of the person proposing the same
and their disposition; and
(4) The results of all votes and, upon the request of a
member, the vote of each member, by name.
Minutes of executive sessions may be limited to material the
disclosure of which is not inconsistent with the provisions of
section four of this article.
(b) Executive sessions of a governing body shall be recorded
electronically. A magnetic tape or other electronic recording
medium on which the executive session is recorded shall be
indexed and securely preserved by the governing body's secretary,
clerk or other person who is responsible for preserving the
minutes of the meeting. If the decision to hold an executive session is challenged in a judicial proceeding or through a
request for an advisory opinion from the ethics commission, the
governing board shall provide a duplicate copy of the tape or
other electronic recording medium of the executive session to the
judge of the court or to the ethics commission. For evidentiary
purposes, a duplicate of the electronic recording prepared by the
secretary or clerk shall be a "writing" or "recording" as those
terms are defined in Rule 1001 of the West Virginia rules of
evidence, and unless the duplicate is shown not to reflect the
contents accurately, it shall be treated as an original in the
same manner that data stored in a computer or similar data is
regarded as an "original" under the rule.
§6-9A-6. Enforcement by injunctions; actions in violation of
article voidable; voidability of bond issues.
The circuit court in the county where the public
body agency
regularly meets
shall have has jurisdiction to enforce this
article upon civil action commenced by any citizen of this state
within one hundred twenty days after the action complained of was
taken or the decision complained of was made. Where
such the
action seeks injunctive relief, no bond
shall may be required
unless the petition appears to be without merit or made with the
sole intent of harassing or delaying or avoiding return by the
governing body.
The court is empowered to compel compliance or enjoin
noncompliance with the provisions of this article and to annul a
decision made in violation
thereof this article. An injunction may also order that subsequent actions be taken or decisions be
made in conformity with the provisions of this article:
Provided, That no bond issue that has been passed or approved by
any governing body in this state may be annulled under this
section if notice of the meeting at which
such the bond issue was
finally considered was given at least ten days prior to
such the
meeting by a Class I legal advertisement published in accordance
with the provisions of article three, chapter fifty-nine of this
code in a qualified newspaper having a general circulation in the
geographic area represented by that governing body.
Any order which compels compliance or enjoins noncompliance
with the provisions of this article, or which annuls a decision
made in violation of this article shall include findings of fact
and conclusions of law and shall be recorded in the minutes of
the governing body.
Upon entry of any such order, the court may, where the court
finds that the governing body intentionally violated the
provisions of this article, order such governing body to pay the
complaining person's necessary attorney fees and expenses. Where
the court, upon denying the relief sought by the complaining
person in the action, finds that the action was frivolous or
commenced with the primary intent of harrassing the governing
body or any member thereof or, in the absence of good faith, of
delaying any meetings or decisions of the governing body, the
court may require the complaining person to pay the governing
body's necessary attorney fees and expenses.
Any person who intentionally violates the provisions of this
article shall be liable in such action for compensatory and
punitive damages not to exceed a total of five hundred dollars.
§6-9A-7. Violation of article; criminal penalties; attorney fees
and expenses in civil actions.
(a) Any person who is a member of a public or governmental
body required to conduct open meetings in compliance with the
provisions of this article and who willfully and knowingly
violates the provisions of this article
shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than five hundred dollars, or
imprisoned confined in
the county jail not more than ten days, or
both fined and
imprisoned confined: Provided, That a person who
is convicted of a second or subsequent offense under this
subsection is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than two hundred dollars nor
more than one thousand dollars, or confined in jail not more than
ten days, or both fined and confined.
(b) A public agency whose governing body is adjudged in a
civil action to have conducted a meeting in violation of the
provisions of this article is liable to a prevailing party for
fees and other expenses incurred by that party in connection with
litigating the issue of whether the governing body acted in
violation of this article, unless the court finds that the
position of the public agency was substantially justified or that
special circumstances make an award of fees and other expenses unjust. In a case where a member knowingly and willfully voted
to convene or otherwise acted so as to bring about an executive
session in violation of the provisions of this article, the
member is personally liable to a public agency for attorney fees
and expenses ordered to be paid by the public body to a
prevailing party.
§6-9A-8. Acting by reference; written ballots; electronic
meetings.
(a) Except as otherwise expressly provided by law, the
members of a public agency may not deliberate, vote, or otherwise
take action upon any matter by reference to a letter, number or
other designation or other secret device or method, which may
render it difficult for persons attending a meeting of the public
agency to understand what is being deliberated, voted or acted
upon. However, this subsection does not prohibit a public agency
from deliberating, voting or otherwise taking action by reference
to an agenda, if copies of the agenda, sufficiently worded to
enable the public to understand what is being deliberated, voted
or acted upon, are available for public inspection at the
meeting.
(b) A public agency may not vote by secret or written
ballot.
(c) If a public agency holds a meeting by use of conference
telephone or other electronic means, it shall provide a location
and means whereby members of the public may listen to the meeting
and the notice of the meeting required by this article shall specify that location.
§6-9A-9. Broadcasting or recording meetings.
(a) Except as otherwise provided in this section, any radio
or television station is entitled to broadcast all or any part of
a meeting required to be open. Any person may photograph,
film, tape-record or otherwise reproduce any part of a meeting
required to be open.
(b) A public agency may regulate the placement and use of
equipment necessary for broadcasting, photographing, filming or
recording a meeting, so as to prevent undue interference with the
meeting. The public agency shall allow the equipment to be
placed within the meeting room in such a way as to permit its
intended use, and the ordinary use of the equipment may not be
declared to constitute undue interference:
Provided, That if the
public agency, in good faith, determines that the size of the
meeting room is such that all the members of the public present
and the equipment and personnel necessary for broadcasting,
photographing, filming and tape-recording the meeting cannot be
accommodated in the meeting room without unduly interfering with
the meeting and an adequate alternative meeting room is not
readily available, then the public agency, acting in good faith
and consistent with the purposes of this article, may require the
pooling of the equipment and the personnel operating it.
§6-9A-10. Open governmental meetings committee.
The West Virginia ethics commission, pursuant to subsection
(j), section one, article two of this chapter, shall appoint from the membership of the commission a subcommittee of three persons
designated as the West Virginia ethics commission committee on
open governmental meetings. The chairman shall designate one of
the persons to chair the committee. In addition to the three
members of the committee, two additional members of the
commission shall be designated to serve as alternate members of
the committee.
The chairman of the committee or the executive director
shall call meetings of the committee to act on requests for
advisory opinions interpreting the West Virginia open government
meetings act. Advisory opinions shall be issued in a timely
manner, not to exceed thirty days.
§6-9A-11. Request for advisory opinion; maintaining
confidentiality.
(a) Any person may seek an advisory opinion from the West
Virginia ethics commission committee on open governmental
meetings as to whether an action or proposed action violates the
provisions of this article. The committee shall respond in an
expeditious manner to any inquiry from any person.
(b) Any public agency or governing body that seeks an
advisory opinion and acts in good faith reliance on the opinion
has an absolute defense to any criminal prosecution for any
action taken in good faith reliance on the opinion unless the
committee was willfully and intentionally misinformed as to the
facts by the body or its representative.
(c) Any person and a public agency or its governing body who disagree on the interpretation and application of the open
government meetings act may request an opinion in writing from
the committee. The committee shall issue an opinion and the
opinion shall be binding on the parties requesting the opinion:
Provided, That the opinion may not be binding on third parties
who may pursue all legal remedies otherwise available to them
under the provisions of this article.
(d) The committee and commission may take appropriate action
to protect from disclosure information which is properly shielded
by an exception provided for in section four of this article.
§6-9A-12. Duty of attorney general, secretary of state, clerks
of the county commissions and city clerks or
recorders.
It is the duty of the attorney general to compile the
statutory and case law pertaining to this article and to prepare
appropriate summaries and interpretations for the purpose of
informing all public officials subject to this article of the
requirements of this article. It is the duty of the secretary of
state, the clerks of the county commissions, joint clerks of the
county commissions and circuit courts, if any, and the city
clerks or recorders of the municipalities of the state to provide
a copy of the material compiled by the attorney general to all
elected or appointed public officials within their respective
jurisdictions. Likewise, it is their respective duties to
provide a copy or summary to any newly appointed or elected
person within thirty days of the elected or appointed official taking the oath of office or an appointed person's start of term.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5G. OPEN HOSPITAL PROCEEDINGS.
§16-5G-2. Definitions.
As used in this article:
(1) "Decision" means any determination, action, vote or
final disposition of a motion, proposal, resolution, order or
measure on which a vote of the governing body is required at any
meeting at which a quorum is present;
(2) "Executive session" means any meeting or part of a
meeting of a governing body of a hospital that is closed to the
public;
(3) "Governing body" means the board of directors or other
group of persons having the authority to make decisions for or
recommendations on policy or administration to a hospital owned
or operated by a nonprofit corporation, nonprofit association or
local governmental unit, the membership of which governing body
consists of two or more members;
(4) "Hospital" means any hospital owned or operated by a
nonprofit corporation, nonprofit association or local
governmental unit;
(5) "Meeting" means the convening of a governing body of a
hospital for which a quorum is required in order to make a
decision or to deliberate toward a decision on any matter:
Provided, That a medical staff conference is not a meeting; and
(6) "Quorum" means, unless otherwise defined by applicable law, a simple majority of the constituent membership of a
governing body.
§16-5G-3. Proceedings to be open; public notice of meetings.
Except as expressly and specifically otherwise provided by
law, and except as provided in section four of this article, all
meetings of a governing body of a hospital shall be open to the
public. Any governing body may make and enforce reasonable rules
and regulations for attendance and presentation at any meeting
where there is not room enough for all members of the public who
wish to attend. This article does not prohibit the removal from
a meeting of any member of the public who is disrupting the
meeting to the extent that orderly conduct of the meeting is
compromised: Provided,
That persons who desire to address the
governing body may not be required to register to address the
body more than fifteen minutes prior to time the scheduled
meeting is to commence.
Each governing body shall promulgate rules by which the time
and place of all regularly scheduled meetings and the time, place
and purpose of all special meetings are made available, in
advance, to the public and news media, except in the event of an
emergency requiring immediate official action.
Each governing body shall file a notice of any meeting by
causing a notice of the meeting to be printed in a local
newspaper: Provided, That the governing body may otherwise
provide by rule or regulation an alternative procedure that will
reasonably provide the public with notice. Each notice shall state the time, place and purpose of the meeting.
In the event of an emergency requiring immediate official
action, any governing body may provide an emergency meeting
notice at any time prior to the meeting. The emergency meeting
notice shall state the time, place and purpose of the meeting and
the facts and circumstances of the emergency.
Upon petition by any adversely affected party, any court of
competent jurisdiction may invalidate any action taken at any
meeting for which notice did not comply with the requirements of
this section.
§16-5G-4. Exceptions.
(a) This article does not prevent the governing body of a
hospital from holding an executive session during a regular,
special or emergency meeting, after the presiding officer has
identified the authorization under this article for the holding
of such executive session and has presented it to the governing
body and to the general public, but no decision shall be made in
such executive session.
(b) An executive session may be held only upon a majority
affirmative vote of the members present of the governing body of
a hospital as defined in this article for the following:
(1) The appointment, employment, retirement, promotion,
demotion, disciplining, resignation, discharge, dismissal or
compensation of any officer or employee, or other personnel
matters, or for the purpose of conducting a hearing on a
complaint against an officer or employee, unless the officer or employee requests an open meeting;
(2) The disciplining, suspension or expulsion of any student
or trainee enrolled in a program conducted by the hospital,
unless the student or trainee requests an open meeting;
(3) Investigations and proceeding involving the issuance,
denial, suspension or revocation of the authority or privilege of
a medical practitioner to use the hospital and to engage in
particular kinds of practice or to perform particular kinds of
operations, unless the person seeking the authority or privilege
or whose authority or privilege was denied, suspended or revoked
requests an open meeting;
(4) Matters concerning the failure or refusal of a medical
practitioner to comply with reasonable regulations of a hospital
with respect to the conditions under which operations are
performed and other medical services are delivered;
(5) To consider the work product of the hospital's attorney
or the hospital administration: Provided, That the minutes of
the executive session and the work product discussed in that
session are exempt from disclosure under the open meetings
requirements of this article only until the conclusion of the
litigation or adversarial administrative proceeding for which the
work product was prepared. Discussion of legal issues relating
to general policy matters may not be discussed in a closed
session and nothing in this article permits a hospital to close
a meeting that otherwise would be open, merely because the
hospital's attorney is a participant. If the hospital has approved or considered a settlement, other than a malpractice
settlement by or on behalf of the hospital, in closed session,
the terms of that settlement shall be reported by the public
agency and entered into its minutes within a reasonable time
after the settlement is concluded;
(6) The physical or mental health of any person, unless the
person requests an open meeting;
(7) Matters which, if discussed in public, would be likely
to affect adversely the reputation of any person;
(8) Any official investigation or matters relating to crime
prevention or law enforcement;
(9) The development of security personnel or devices; or
(10) Matters involving or affecting the purchase, sale or
lease of property, advance construction planning, the investment
of public funds or other matters involving competition which, if
made public, might adversely affect the financial or other
interest of the state or any political subdivision or the
hospital.
§16-5G-5. Minutes.
(a) Each governing body shall provide for the preparation of
written minutes of all of its meetings. The minutes shall be
available to the public within a reasonable time after the
meeting and shall include, at least, the following information:
(1) The date, time and place of the meeting;
(2) The name of each member of the governing body present
and absent;
(3) All motions, proposals, resolutions, orders and measures
proposed, the name of the person proposing the same and their
disposition; and
(4) The results of all votes and, upon the request of a
member, the vote of each member, by name.
(b) Minutes of executive sessions may be limited to material
the disclosure of which is not inconsistent with the provisions
of section four of this article.
§16-5G-6. Enforcement by injunctions; actions in violation of
article voidable.
The circuit court in the county where a hospital is located
has jurisdiction to enforce this article upon civil action
commenced by any citizen of this state within one hundred twenty
days after the action complained of was taken or the decision
complained of was made. Where the action seeks injunctive
relief, no bond may be required unless the petition appears to be
without merit or made with the sole intent of harassing or
delaying or avoiding return by the governing body.
The court is empowered to compel compliance or enjoin
noncompliance with the provisions of this article and to annul a
decision made in violation of this article. An injunction may
also order that subsequent actions be taken or decisions be made
in conformity with the provisions of this article.
Any order which compels compliance or enjoins noncompliance
with the provisions of this article, or which annuls a decision
made in violation of this article shall include findings of fact and conclusions of law and shall be recorded in the minutes of
the governing body.
Upon entry of an order, the court may, where the court finds
that the governing body intentionally violated the provisions of
this article, order the governing body to pay the complaining
person's necessary attorney fees and expenses. Where the court,
upon denying the relief sought by the complaining person in the
action, finds that the action was frivolous or commenced with the
primary intent of harassing the governing body or any member
thereof or, in the absence of good faith, of delaying any
meetings or decisions of the governing body, the court may
require the complaining person to pay the governing body's
necessary attorney fees and expenses.
Any person who intentionally violates the provisions of this
article is liable in an action for compensatory and punitive
damages not to exceed a total of five hundred dollars.
§16-5G-7. Violation of article; penalties.
Any person who is a member of a governing body of a hospital
required to conduct open meetings in compliance with the
provisions of this article and who willfully and knowingly
violates the provisions of this article is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than five hundred dollars, or
confined in jail not more than ten days, or both fined and
confined.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language
that would be added.
§§6-9A-8, 9, 10, 11 and 12, and §§16-5G-3, 4, 5, 6 and 7 are
new; therefore, strike-throughs and underscoring have been
omitted.
§16-5G-2 has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
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