HB 2126 Text

COMMITTEE SUBSTITUTE
FOR
H. B. 2126
(By Mr. Speaker, Mr. Chambers, and Delegates
Phillips, Williams, Richards, Douglas and Vest)
(Originating in the House Committee on the Judiciary)

[March 31, 1993]

A BILL to amend and reenact sections two and six, article nine-a, chapter six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to open governmental proceedings; defining governing bodies of the Legislature; providing powers to circuit courts in actions brought to enforce the provisions of the article or to annul decisions of a governing body; requiring that a petition for injunctive relief be filed within one hundred twenty days of actions taken or decisions made by governing bodies; providing for attorney fees and expenses; and providing limited civil liability for compensatory and punitive damages.

Be it enacted by the Legislature of West Virginia:
That sections two and six, article nine-a, chapter six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-2. Definitions.
As used in this article:
(1) "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) "Executive session" means any meeting or part of a meeting of a governing body which is closed to the public;
(3) "Governing body" means the members of any public body having the authority to make decisions for or recommendations to a public body 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 any standing, select or special committee as determined by the rules of the respective houses thereof;
(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, committeeor 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
(7) "Quorum" means, unless otherwise defined by applicable law, a simple majority of the constituent membership of a governing body.

§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 regularly meets ~~or the judge thereof in vacation~~ shall have jurisdiction to enforce this article upon ~~petition~~ 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. ~~who can show good faith and~~ or ~~a valid~~ ~~reason for making the application. No~~ Where such action seeks injunctive relief, no bond shall 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.
~~Any injunction granted pursuant to the provisions of this~~ ~~section may order that actions taken or decisions made in~~ ~~violation of this article may be enjoined or annulled. if the~~ ~~petition therefor was filed within thirty days after the actions~~ ~~were taken or decisions made and~~ The court is empowered to compel compliance or enjoin non-compliance with the provisions of this article and to annul a decision made in violation thereof. 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 orapproved by any governing body in this state may be ~~held void~~ annulled under this section if notice of the meeting at which such bond issue was finally considered was given at least ten days prior to such 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 non-compliance 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.

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