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.