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Introduced Version House Bill 2233 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 2233


(By Delegates Staton, Pino, Amores, Givens, Tillis,
Riggs and Trump)

[Introduced February 26, 1997; 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; and to further amend said article by adding thereto five new sections, designated sections eight, nine, ten, eleven and twelve, 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; and that said article be further amended by adding thereto five new sections, designated sections eight, nine, ten, eleven and twelve, all to read as follows:
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.
§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.
(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. The term "public agency" includes public hospitals but does not include the medical staff of a public hospital.
(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:
(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 proposed appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of any an individual public officer or employee, or prospective public officer or employee or other personnel matters, unless the 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 an individual 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 actions for the 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 discuss matters that would result in 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, other than a malpractice settlement by or on behalf of a 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;
(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.

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 in the county jail not more than ten days, or both fined and imprisoned.
(a) A person who, as a member of the governing body of a public agency, votes to convene or otherwise acts so as to bring about an executive session of the governing body in violation of the requirement to conduct an open meeting is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars: 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 one hundred dollars nor more than five hundred dollars.
(b) A person who, as a member of the governing body of a public agency, knowingly and willfully votes to convene or otherwise acts so as to bring about an executive session of the governing body in violation of the requirement to conduct an open meeting 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: 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.
(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.
(d) Fees and other expenses awarded under the provisions of this section shall be paid by the public agency over which the party prevails from any funds that were appropriated to the agency for that specific purpose.
§6-9A-8. Electronic meetings; written ballots; acting by reference.

(a) 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.
(b) A public agency may not vote by secret or written ballot.
(c) 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.
§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 agency, 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 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 or summary of the open governmental meetings act 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 official taking the oath of office or an appointed person's start of term.


NOTE: The purpose of this bill is to revise the Open Governmental Meetings Act (or Sunshine Act).

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

Sections eight, nine, ten, eleven and twelve are new; therefore, strike-throughs and underscoring have been omitted in those sections.
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