H. B. 3010


(By Mr. Speaker, Mr. Kiss, and Delegates Varner,

Amores, Browning, Kominar, Palumbo and Swartzmiller)


[Introduced February 13, 2003; referred to the

Committee on Veterans Affairs and Homeland Security then the Judiciary.]



A BILL to amend and reenact section four, article nine-a, chapter six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to establishing an exemption from the open governmental meetings act for discussions by a governmental body of certain activities associated with the protection of public safety or public health as it relates to terrorist activity or the threat of terrorist activity.

Be it enacted by the Legislature of West Virginia:
That section four, article nine-a, chapter six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-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, or in the interest of homeland security and the protection of public safety or public health as it relates to terrorist activity or the threat of terrorist activity or to conduct discussions or receive briefings in the interest of homeland security and the protection of public safety or public health as it relates to terrorist activity or the threat of terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity or a related threat to public safety or public health;
(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.


NOTE: The purpose of the bill is to exempt from the open governmental meetings act discussions by a governmental body of certain activities relating to homeland security terrorist threats .

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