ENROLLED
H. B. 2005
(By Delegates Amores, Mahan, Linch, Faircloth and Trump)
[Passed March 13, 1999; in effect ninety days from passage.]
AN ACT to amend and reenact sections one, two, three, four, five,
six and seven, article nine-a, chapter six of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; to further amend said article by adding thereto
five new sections, designated sections eight, nine, ten,
eleven and twelve; to amend and reenact section two, article
five-g, chapter sixteen of said code; and to further amend
said article by adding thereto five new sections, designated
sections three, four, five, six and seven, all relating
generally to open governmental and nonprofit hospital
meetings; declaring legislative policy; providing
definitions; providing that proceedings be open; requiring
public notice of meetings; providing for exceptions;
establishing requirements for minutes and providing for
exceptions; providing for enforcement by injunction;
providing that actions taken in violation of this article
are voidable; providing for voidability of bond issues; establishing criminal penalties; providing for payment of
attorney fees and expenses; prohibiting action by reference,
secret or written ballot; providing for broadcasting or
recording of meetings; creating an open governmental
meetings committee within the West Virginia ethics
commission; providing for advisory opinions; establishing
for immunity; establishing duty of attorney general,
secretary of state, clerks of county commissions, city
clerks and recorders to provide information; providing
definitions for open hospital proceedings; requiring
proceedings to be open; requiring public notice of meetings;
providing exceptions; establishing requirements for minutes;
providing for enforcement by injunctions; providing that
actions in violation are voidable; providing for violations;
and penalties.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, six and seven,
article nine-a, chapter six of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; that said article be further amended by adding thereto
five new sections, designated sections eight, nine, ten, eleven
and twelve; that section two, article five-g, chapter sixteen of
said code be amended and reenacted; and that said article be
further amended by adding thereto five new sections, designated
sections three, four, five, six and seven, all to read as
follows:
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-1. Declaration of legislative policy.
The Legislature hereby finds and declares that public
agencies 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 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 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.
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.
Public access to information promotes attendance at
meetings, improves planning of meetings, and encourages more
thorough preparation and complete discussion of issues by
participating officials. The government also benefits from
openness because better preparation and public input allow government agencies to gauge public preferences accurately and
thereby tailor their actions and policies more closely to public
needs. Public confidence and understanding ease potential
resistance to government programs.
Accordingly, the benefits of openness inure to both the
public affected by governmental decision making and the decision
makers themselves. The Legislature finds that openness, public
access to information and a desire to improve the operation of
government do not require nor permit every meeting to be a public
meeting. The Legislature finds that it would be unrealistic, if
not impossible, to carry on the business of government should
every meeting, every contact and every discussion seeking advise
and counsel in order to acquire the necessary information, data
or intelligence needed by a governing body were required to be a
public meeting. It is the intent of the Legislature to balance
these interests in order to allow government to function and the
public to participate in a meaningful manner.
§6-9A-2. Definitions.
As used in this article:
(1) "Decision" means any determination, action, vote or
final disposition of a motion, proposal, resolution, order,
ordinance or measure on which a vote of the governing body is
required at any meeting at which a quorum is present.
(2) "Executive session" means any meeting or part of a
meeting of a governing body which is closed to the public.
(3) "Governing body" means the members of any public agency having the authority to make decisions for or recommendations to
a 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 is
any standing, select or special committee, except the commission
on special investigations, as determined by the rules of the
respective houses of the Legislature.
(4)"Meeting" means the convening of a governing body of a
public agency for which a quorum is required in order to make a
decision or to deliberate toward a decision on any matter which
results in an official action. Meetings may be held by telephone
conference or other electronic means. The term meeting 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;
(C) Any political party caucus;
(D) General discussions among members of a governing body on
issues of interest to the public when held in a planned or
unplanned social, educational, training, informal, ceremonial or
similar setting, without intent to conduct public business even
if a quorum present and public business is discussed and not
intended to lead to an official action; or
(E) Discussions by members of a governing body on logistical
and procedural methods to schedule and regulate meeting.
(5) "Official action" means action which is taken by virtue
of power granted by law, ordnance, policy, rule, or by virtue of
the office held.
(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 the gathering of a simple majority of the
constituent membership of a governing body, unless applicable law
provides for varying the required ratio.
§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 for attendance and
presentation at any meeting where there is not room enough for
all members of the public who wish to attend. This article does
not prohibit the removal from a meeting of any member of the
public who is disrupting the meeting to the extent that orderly conduct of the meeting is compromised: Provided, That persons
who desire to address the governing body may not be required to
register to address the body more than fifteen minutes prior to
time the scheduled meeting is to commence.
Each governing body shall promulgate rules by which the
time, 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) The governing body of a public agency may hold an
executive session during a regular, special or emergency meeting,
in accordance with the provisions of this section. During the
open portion of the meeting, prior to convening an executive
session, the presiding officer of the governing body shall
identify the authorization under this section for holding the
executive session and present it to the governing body and to the
general public, but no decision may be made in the executive
session.
(b) An executive session may be held only upon a majority
affirmative vote of the members present of the governing body of
a public 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) To consider acts of war, threatened attack from a
foreign power, civil insurrection or riot;
(2) To consider:
(A) Matters arising from the appointment, employment,
retirement, promotion, transfer, demotion, disciplining,
resignation, discharge, dismissal or compensation of a public
officer or employee, or prospective public officer or employee
unless the public officer or employee or prospective public
officer or employee requests an open meeting; or
(B) For the purpose of conducting a hearing on a complaint,
charge or grievance against a public officer or employee, unless
the public officer or employee requests an open meeting. General personnel policy issues may not be discussed or considered in a
closed 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) To decide upon disciplining, suspension or expulsion of
any student in any public school or public college or university,
unless the student requests an open meeting;
(4) 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 the license,
certificate or registration or whose license, certificate or
registration was denied, suspended or revoked requests an open
meeting;
(5) To consider the physical or mental health of any person,
unless the person requests an open meeting;
(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) To plan or consider an official investigation or matter relating to crime prevention or law enforcement;
(8) To develop security personnel or devices;
(9) 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 information relied on during the
course of deliberations on matters involving commercial
competition are exempt from disclosure under the open meetings
requirements of this article only until the commercial
competition has been finalized and completed. Provided, However,
that information not subject to release pursuant to the West
Virginia freedom of information act does not become subject to
disclosure as a result of executive session;
(10) To avoid the premature disclosure of an honorary
degree, scholarship, prize or similar award;
(11) Nothing in this article permits a public agency to
close a meeting that otherwise would be open, merely because an
agency attorney is a participant. If the public agency has
approved or considered a settlement in closed session, and the
terms of the settlement allow disclosure, the terms of that
settlement shall be reported by the public agency and entered
into its minutes within a reasonable time after the settlement is
concluded;
(12) To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered
confidential, or which is not considered a public record within
the meaning of the freedom of information act as set forth in
article one, chapter twenty-nine-b of this code;
§6-9A-5. Minutes.
Each governing body shall provide for the preparation of
written minutes of all of its meetings. Subject to the
exceptions set forth in section four of this article, minutes of
all meetings except minutes of executive sessions, if any are
taken, 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, pursuant to the rules, policies or procedures of the
governing board for recording roll call votes, the vote of each
member, by name.
§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 agency
regularly meets has jurisdiction to enforce this article upon civil action commenced by any citizen of this state within one
hundred twenty days after the action complained of was taken or
the decision complained of was made. Where the action seeks
injunctive relief, no bond may be required unless the petition
appears to be without merit or made with the sole intent of
harassing or delaying or avoiding return by the governing body.
The court is empowered to compel compliance or enjoin
noncompliance with the provisions of this article and to annul a
decision made in violation this article. An injunction may also
order that subsequent actions be taken or decisions be made in
conformity with the provisions of this article: Provided, That
no bond issue that has been passed or approved by any governing
body in this state may be annulled under this section if notice
of the meeting at which the bond issue was finally considered was
given at least ten days prior to 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.
In addition to or in conjunction with any other acts or
omissions which may be determined to violate this Act, it is a
violation of this Act for a governing body to hold a private
meeting with the intention of transacting public business,
thwarting public scrutiny and making decisions that eventually
become official action.
Any order which compels compliance or enjoins noncompliance with the provisions of this article, or which annuls a decision
made in violation of this article shall include findings of fact
and conclusions of law and shall be recorded in the minutes of
the governing body.
§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 is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than five 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 one
thousand dollars.
(b) A public agency whose governing body is adjudged in a
civil action to have conducted a meeting in violation of the
provisions of this article may 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.
(c) Where the court, upon denying the relief sought by the complaining person in the action, finds that the action was
frivolous or commenced with the primary intent of harassing the
governing body or any member thereof or, in the absence of good
faith, of delaying any meetings or decisions of the governing
body, the court may require the complaining person to pay the
governing body's necessary attorney fees and expenses.
§6-9A-8. Acting by reference; written ballots.
(a) Except as otherwise expressly provided by law, the
members of a public agency may not deliberate, vote, or otherwise
take official 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.
§6-9A-9. Broadcasting or recording meetings.
(a) Except as otherwise provided in this section, any radio
or television station is entitled to broadcast all or any part of
a meeting required to be open.
(b) A public agency may regulate the placement and use of equipment necessary for broadcasting, photographing, filming or
recording a meeting, so as to prevent undue interference with the
meeting. The public agency shall allow the equipment to be
placed within the meeting room in such a way as to permit its
intended use, and the ordinary use of the equipment may not be
declared to constitute undue interference: Provided, That if the
public agency, in good faith, determines that the size of the
meeting room is such that all the members of the public present
and the equipment and personnel necessary for broadcasting,
photographing, filming and tape-recording the meeting cannot be
accommodated in the meeting room without unduly interfering with
the meeting and an adequate alternative meeting room is not
readily available, then the public agency, acting in good faith
and consistent with the purposes of this article, may require the
pooling of the equipment and the personnel operating it.
§6-9A-10. Open governmental meetings committee.
The West Virginia ethics commission, pursuant to subsection
(j), section one, article two, chapter six-b of this code, 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 governing body or member thereof subject to the
provisions of this article may seek advise and information from
the executive director of the West Virginia ethics commission or
request in writing an advisory opinion from the West Virginia
ethics commission committee on open governmental meetings as to
whether an action or proposed action violates the provisions of
this article. The executive director may render oral advise and
information upon request. The committee shall respond in writing
and in an expeditious manner to a request for an advisory
opinion. The opinion shall be binding on the parties requesting
the opinion.
(b) Any governing body or member thereof that seeks an
advisory opinion and acts in good faith reliance on the opinion
has an absolute defense to any civil suit or criminal prosecution
for any action taken in good faith reliance on the opinion unless
the committee was willfully and intentionally misinformed as to
the facts by the body or its representative.
(c) The committee and commission may take appropriate action
to protect from disclosure information which is properly shielded
by an exception provided for in section four of this article.
§6-9A-12. Duty of attorney general, secretary of state, clerks
of the county commissions and city clerks or
recorders.
It is the duty of the attorney general to compile the
statutory and case law pertaining to this article and to prepare
appropriate summaries and interpretations for the purpose of
informing all public officials subject to this article of the
requirements of this article. It is the duty of the secretary of
state, the clerks of the county commissions, joint clerks of the
county commissions and circuit courts, if any, and the city
clerks or recorders of the municipalities of the state to provide
a copy of the material compiled by the attorney general to all
elected public officials within their respective jurisdictions.
The clerks or recorders will make the material available to
appointed public officials. Likewise, it is their respective
duties to provide a copy or summary to any newly appointed or
elected person within thirty days of the elected or appointed
official taking the oath of office or an appointed person's start
of term.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5G. OPEN HOSPITAL PROCEEDINGS.
§16-5G-2. Definitions.
As used in this article:
(1) "Decision" means any determination, action, vote or
final disposition of a motion, proposal, resolution, order or
measure on which a vote of the governing body is required at any meeting at which a quorum is present;
(2) "Executive session" means any meeting or part of a
meeting of a governing body of a hospital that is closed to the
public;
(3) "Governing body" means the board of directors or other
group of persons having the authority to make decisions for or
recommendations on policy or administration to a hospital owned
or operated by a nonprofit corporation, nonprofit association or
local governmental unit, the membership of which governing body
consists of two or more members;
(4) "Hospital" means any hospital owned or operated by a
nonprofit corporation, nonprofit association or local
governmental unit;
(5) "Meeting" means the convening of a governing body of a
hospital for which a quorum is required in order to make a
decision or to deliberate toward a decision on any matter:
Provided, That a medical staff conference is not a meeting; and
(6) "Quorum" means, unless otherwise defined by applicable
law, a simple majority of the constituent membership of a
governing body.
§16-5G-3. Proceedings to be open; public notice of meetings.
Except as expressly and specifically otherwise provided by
law, and except as provided in section four of this article, all
meetings of a governing body of a hospital shall be open to the
public. Any governing body may make and enforce reasonable rules
and regulations for attendance and presentation at any meeting where there is not room enough for all members of the public who
wish to attend. This article does not prohibit the removal from
a meeting of any member of the public who is disrupting the
meeting to the extent that orderly conduct of the meeting is
compromised: Provided,
That persons who desire to address the
governing body may not be required to register to address the
body more than fifteen minutes prior to time the scheduled
meeting is to commence.
Each governing body shall promulgate rules by which the time
and place of all regularly scheduled meetings and the time, place
and purpose of all special meetings are made available, in
advance, to the public and news media, except in the event of an
emergency requiring immediate official action.
Each governing body shall file a notice of any meeting by
causing a notice of the meeting to be printed in a local
newspaper: Provided, That the governing body may otherwise
provide by rule or regulation an alternative procedure that will
reasonably provide the public with notice. Each notice shall
state the time, place and purpose of the meeting.
In the event of an emergency requiring immediate official
action, any governing body may provide an emergency meeting
notice at any time prior to the meeting. The emergency meeting
notice shall state the time, place and purpose of the meeting and
the facts and circumstances of the emergency.
Upon petition by any adversely affected party, any court of
competent jurisdiction may invalidate any action taken at any meeting for which notice did not comply with the requirements of
this section.
§16-5G-4. Exceptions.
(a) This article does not prevent the governing body of a
hospital from holding an executive session during a regular,
special or emergency meeting, after the presiding officer has
identified the authorization under this article for the holding
of such executive session and has presented it to the governing
body and to the general public, but no official action shall be
made in such executive session.
(b) An executive session may be held only upon a majority
affirmative vote of the members present of the governing body of
a hospital as defined in this article for the following:
(1) The appointment, employment, retirement, promotion,
demotion, disciplining, resignation, discharge, dismissal or
compensation of any officer or employee, or other personnel
matters, or for the purpose of conducting a hearing on a
complaint against an officer or employee, unless the officer or
employee requests an open meeting;
(2) The disciplining, suspension or expulsion of any student
or trainee enrolled in a program conducted by the hospital,
unless the student or trainee requests an open meeting;
(3) Investigations and proceeding involving the issuance,
denial, suspension or revocation of the authority or privilege of
a medical practitioner to use the hospital and to engage in
particular kinds of practice or to perform particular kinds of operations, unless the person seeking the authority or privilege
or whose authority or privilege was denied, suspended or revoked
requests an open meeting;
(4) Matters concerning the failure or refusal of a medical
practitioner to comply with reasonable regulations of a hospital
with respect to the conditions under which operations are
performed and other medical services are delivered;
(5) To consider the work product of the hospital's attorney
or the hospital administration;
(6) The physical or mental health of any person, unless the
person requests an open meeting;
(7) Matters which, if discussed in public, would be likely
to affect adversely the reputation of any person;
(8) Any official investigation or matters relating to crime
prevention or law enforcement;
(9) The development of security personnel or devices; or
(10) Matters involving or affecting the purchase, sale or
lease of property, advance construction planning, the investment
of public funds or other matters involving competition which, if
made public, might adversely affect the financial or other
interest of the state or any political subdivision or the
hospital.
§16-5G-5. Minutes.
Each governing body shall provide for the preparation of
written minutes of all of its meetings. Subject to the
exceptions set forth in section four of this article, minutes of all meetings except minutes of executive sessions, if any are
taken, 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, pursuant to the rules, policies or procedures of the
governing board for recording roll call votes, the vote of each
member, by name.
§16-5G-6. Enforcement by injunctions; actions in violation of
article voidable.
The circuit court in the county where a hospital is located
has jurisdiction to enforce this article upon civil action
commenced by any citizen of this state within one hundred twenty
days after the action complained of was taken or the decision
complained of was made. Where the action seeks injunctive
relief, no bond may be required unless the petition appears to be
without merit or made with the sole intent of harassing or
delaying or avoiding return by the governing body.
The court is empowered to compel compliance or enjoin
noncompliance with the provisions of this article and to annul a decision made in violation of this article. An injunction may
also order that subsequent actions be taken or decisions be made
in conformity with the provisions of this article.
Any order which compels compliance or enjoins noncompliance
with the provisions of this article, or which annuls a decision
made in violation of this article shall include findings of fact
and conclusions of law and shall be recorded in the minutes of
the governing body.
Upon entry of an order, the court may, where the court finds
that the governing body intentionally violated the provisions of
this article, order the governing body to pay the complaining
person's necessary attorney fees and expenses. Where the court,
upon denying the relief sought by the complaining person in the
action, finds that the action was frivolous or commenced with the
primary intent of harassing the governing body or any member
thereof or, in the absence of good faith, of delaying any
meetings or decisions of the governing body, the court may
require the complaining person to pay the governing body's
necessary attorney fees and expenses.
Any person who intentionally violates the provisions of this
article is liable in an action for compensatory and punitive
damages not to exceed a total of five hundred dollars.
§16-5G-7. Violation of article; penalties.
(a) In addition to or in conjunction with any other acts or
omissions which may be determined to violate this Act, it is a
violation of this Act for a governing body to hold a private meeting with the intention of transacting public business,
thwarting public scrutiny and making decisions that eventually
become official action.
(b)Any person who is a member of a governing body of a
hospital required to conduct open meetings in compliance with the
provisions of this article and who willfully and knowingly
violates the provisions of this article is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than five hundred dollars, or
confined in jail not more than ten days, or both fined and
confined.