H. B. 4367

         (By Delegates Morgan, Stephens and Hatfield)

         [Introduced February 1, 2012; referred to the

         Committee on Government Organization then the Judiciary.]

A BILL to amend and reenact §6-9A-2 and §6-9A-3 of the Code of West Virginia, 1931, as amended, all relating to Open Governmental Proceedings; defining terms; clarifying existing notice requirements; requiring state executive branch agencies to electronically file public meeting notices with the Secretary of State for publication on Secretary of State’s website; eliminating the requirement that state agency meeting notices be filed in the State Register; and providing rule-making authority.

Be it enacted by the Legislature of West Virginia:

    That §6-9A-2 and §6-9A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.

§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) “Emergency meeting” means any meeting called for the purpose of dealing with an unexpected event requiring immediate attention due to a threat to public health or safety, damage to public or personal property, or posing a potential material financial loss or other potential substantial harm to an agency.

    (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 agency having the authority to make decisions for or recommendations to a public agency on policy or administration, the membership of a 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) (5) "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 is present and public business is discussed but there is no intention for the discussion to lead to an official action; or

    (E) Discussions by members of a governing body on logistical and procedural methods to schedule and regulate a meeting.

    (5) (6) "Official action" means action which is taken by virtue of power granted by law, ordinance, policy, rule, or by virtue of the office held.

    (6) (7) "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) (8) "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.

    (9) “Regular meeting” means a meeting at which the regular business of the public body is conducted.

    (10) “Special meeting” means a meeting of a public body other than a regularly scheduled meeting or emergency meeting.

§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 date, time, place and agenda of all regularly scheduled meetings and the date, 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. The rules shall contain provisions which are consistent with the requirements of the Ethics Commission’s Committee on open governmental meetings in accordance with its authority pursuant to section ten of this article to interpret the Open Meetings Act.

    Each governing body of the executive branch of the state shall electronically file a notice of any each meeting with the Secretary of State for publication in the state register on the Secretary of State’s website. Each notice shall state the date, time, place and purpose of the meeting. Each notice of a special or regular meeting shall be filed in a manner to allow each notice to appear in the state register on the Secretary of State’s website at least five calendar days prior to the date of the meeting. When calculating the days, the day of the meeting is not to be counted. If a meeting notice is filed outside of the Secretary of State’s regular business hours, on a state holiday or weekend day, the date of filing will be considered the next business day. The Secretary of State shall retain copies of all notices filed for ten years. The Secretary of State may promulgate procedural rules concerning the electronic filing of meeting notices.

    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. a governing body may call an emergency meeting. The notice for the emergency meeting shall be posted as soon as practicable prior to the meeting and, for executive branch agencies, electronically filed with the Secretary of State. The emergency meeting notice shall state the date, 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.

    NOTE: The purpose of this bill is to define the terms “special”, “regular” and “emergency meetings”. The bill requires state agencies to file meeting notices electronically with the Secretary of State instead of publication in the state register. The bill’s filing change does not materially alter the amount of advance notice given to the public as the meeting notices will be, as they now are, available for review on the Secretary of State’s website. The bill allows agencies more flexibility in scheduling meetings as they will not be required to meet the Secretary of State’s internal filing deadlines. The bill also provides rule-making authority.

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