H. B. 4597
(By Deleages Amores, Mahan, Tillis, Linch
Faircloth, Riggs and Trump)
[Introduced February 27, 1998; 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 to
open governmental meetings generally; and recodifying the open
governmental meetings law.
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 bet
ter 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 decisionmaking 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 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;
(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. 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.
(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
(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 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 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,
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 public agency from
holding may hold an executive session during a regular, special or
emergency meeting,
in accordance with the provisions of this
section. after 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 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
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 prospective public officer or
employee or other personnel matters, 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 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 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 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 herein shall be
construed to permit 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 shall be 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;
(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 such
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 public
agency regularly meets shall have 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 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. 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 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.
§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 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.
(c) 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 shall be 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 shall be
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 herein below provided, 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 must 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, should determine 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 committee
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 shall have
an absolute defense to any criminal prosecution for any action
taken in good faith reliance on such opinion unless the committee
was willfully and intentionally misinformed as to the facts by such
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. Secretary of state; clerks of the county commissions;
city clerks or recorders.
It shall be the duty of the attorney general to compile the
statutory and case law pertaining to this act and to prepare
appropriate summaries and interpretations for the purpose of
informing all public officials subject to this act of the
requirements of this act. It shall be 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 shall be 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.
Open proceedings Definitions.
Every board of directors or other governing body of any
hospital owned or operated by a nonprofit corporation, nonprofit
association or local governmental unit shall be open to the public
in the same manner and to the same extent as required of public
bodies in article nine-a, chapter six of this code.
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;
(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, and this article shall not be construed to 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 not be required to register to
address said 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.
No provision of this article shall be construed to 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.
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 such 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
herein shall be construed to permit 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 such
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.
Each governing body shall provide for the preparation of
written minutes of all of its meetings. All such 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.
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
shall have 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 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.
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.
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.
§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 shall be 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 in the
county jail not more than ten days, or both fined and imprisoned.
NOTE: The purpose of this bill is to recodify and clarify the
open government proceedings act.
§§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.