The Ethics Commission has no authority or power
to enforce the Open Governmental Meetings Act.
Complaints must be filed in Circuit Court.
Coronavirus and other Public Health Risks
The following is the opinion of Ethics Commission staff concerning public health risks and the Open Meetings Act:
If a governing body needs to meet to discuss or vote on an issue relating to the coronavirus, the governing body may call an emergency meeting if immediate attention is required to address an issue relating to the same. (W. Va. Code § 6-9A-2(2)(A)).
A governing body must post an emergency meeting notice as soon as practicable prior to the meeting, and an emergency meeting agenda and minutes must include the facts and circumstances of the emergency. State agencies must electronically file a notice of the emergency meeting with the Secretary of State.
The governing body may only call an emergency meeting if it meets the emergency meeting test, not because it is merely more convenient to hold an emergency meeting in lieu of a special or regular meeting.
Meeting telephonically or via live audio or visual stream
For emergency, special, or regular meetings, a governing body may meet telephonically or via live audio or visual stream if members of the public may also have access to the meeting. Open Meetings Act Opinion 1999-08.
It is the opinion of Ethics Commission staff that allowing citizens to attend a meeting in person is not required if the governing body determines, based upon guidance issued by the federal government, the state of West Virginia, the Centers for Disease Control and Prevention or other government agencies authorized to make these types of decisions, that it constitutes a public health risk to allow citizens to attend in person. The governing body may instead provide citizens with a call-in number for a telephonic meeting or provide access via web link to a livestream of the meeting. For example, governing bodies may meet via Skype or Webex or may stream a meeting on Facebook or other platforms. [This advice is based upon staff’s interpretation of Open Meetings Act Opinion 2010-02.]
Note: If a governing body is holding a meeting via telephone or video streaming, steps should be taken to ensure that members of the public and press are able to hear meeting participants.
The governing body may allow members of the public to attend by providing them access to a public meeting room in which they may hear the telephonic or video meeting. For example, a governing body may have a speaker phone or a computer with audio or video feed in a city council meeting room and invite the public there.
OVERVIEW OF OMA
OTHER OMA RESOURCES
COVERED AGENCIES AND MEETINGS
What agencies are covered?
The Act covers any administrative or legislative unit of state, county or municipal government including any subunit (e.g. committees) authorized by law to exercise some portion of executive or legislative power. The Act does not apply to courts or private organizations that receive government funding.
What is a governing body?
Two or more members of a public agency who have the authority to make decisions for, or recommendations to, the public agency on policy or administration is considered a governing body.
What is a meeting for purposes of the Open Meetings Act?
A “meeting” covered by the Act is a convening of a quorum of a governing body or subcommittee in order to make a decision or to deliberate towards a decision. Meetings may be held by telephone conference or other electronic means, such as video conference. In these instances, governing bodies must ensure that all their members can hear, and be heard by, each other and any media or member of the public present at the meeting.
When a quorum of a governing body discusses matters that would require official action by the governing body, then this is a meeting. If this discussion takes place outside the confines of a public meeting—whether in person, by telephone, email or other telecommunication means — it is an illegal meeting.
What gatherings are not meetings subject to the Open Meetings Act?
General discussions among members of a governing body or committee on issues of interest to the public in a social, educational, training, informal, ceremonial or similar setting, so long as there is no intent to conduct public business or for the discussion to lead to official action, are not gatherings subject to the Open Meetings Act.
Adjudicatory proceedings, on-site inspections, political party caucuses, and discussions on logistical and procedural methods to schedule and regulate a meeting are also not matters covered by the Open Meetings Act.
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NOTICE and AGENDA
How much advance notice of a meeting is necessary?
Public notice of the meeting and the agenda must be made available in advance of a meeting to the public.
Every public agency should establish rules for giving advance notice of all regularly scheduled and special meetings. W.Va. Code § 6-9A-3. In addition, the Open Meetings Committee of the West Virginia Ethics Commission, through the issuance of Advisory Opinions, has established rules which establish how much advance notice is required.
Calculating days for purposes of the Open Meetings Act
In calculating days of notice, do not count the day of the meeting, weekend days or legal holidays. Half-day holidays are not legal holidays for the purpose of calculating days. State agencies, however, have additional obligations for posting a meeting notice with the Secretary of State's office.
Time requirements for posting a meeting notice
· State agencies - State agencies must file a notice of any meeting with the Secretary of State at least five business days prior to the date of the meeting.
· Other governing bodies - Notice must be given in a reasonable manner. When a governing body meets in accordance with a fixed schedule, such as the second and fourth Monday of each month, it may comply with the meeting notice requirement in the Act by annually posting notice of the date, time, and place of these regular meetings or regular committee meetings for the coming year, and keeping this notice posted throughout the year.
· Regular meetings – For governing bodies which do not have a fixed schedule for meetings, these bodies may comply with the Open Meetings Act by posting a notice three business days in advance of the meeting.
· Special meetings - When a governing body meets on an irregular schedule, or needs to meet before the next regularly scheduled meeting to address matters that do not involve an emergency, these are considered special meetings. Notice must be posted two business days in advance of the meeting.
Although state agencies may conduct a special meeting, i.e., a meeting held between regularly scheduled meetings, due to the more restrictive language in the Open Meetings Act the agency must provide the meeting notice to the Secretary of State at least five business days prior to the date of the special meeting. State agencies may not call an emergency meeting for a subject that is not a true emergency. Failure to file a timely notice of meeting with the Secretary of State’s Office does not constitute an emergency.
What must a notice include?
Notice must include the date, time, and place of the meeting. For special meetings or emergency meetings, the notice must state the purpose of the meeting.
Time requirements for posting an agenda
· Regular meeting - three business days before the meeting.
· Special meeting - two business days before the meeting.
· Emergency meeting - as soon as practicable prior to the meeting.
Where/how to post an agenda?
A governing body complies with the Act by posting its meeting agenda for each regularly scheduled meeting in a public place at its central office and by having copies of the agenda available there during regular business hours.
In addition, it may distribute agendas to the news media by mail or email. The agenda also may be posted on the governing body’s website if it has one. While additional dissemination to the public and the media is encouraged, failure to provide an agenda by such additional means will not invalidate an otherwise proper public meeting.
What about governing bodies which meet weekly?
For governing bodies which meet weekly, the agenda may be made available two business days before the meeting.
May an agenda be amended?
Yes. The agenda may be amended up to two business days before the meeting. If an agenda is amended, it must be reposted in the same manner as the original agenda was posted. The only circumstance under which a governing body may amend an agenda during a meeting is if a true emergency arises.
How specific must an agenda be?
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Agendas must give reasonable notice to the public of what issues will be discussed. A matter requiring the governing body to take official action must be listed on the agenda. For example, “filling position of office manager” would be sufficient. Using vague headings such as “old business,” “new business” and "personnel matters" is clearly insufficient. The public should also be given notice of significant additions or changes to the agenda. Each governing body should have rules on how such notice will be given.
Governing bodies should exercise caution when calling an emergency meeting. Ordinarily, an “emergency” involves an unexpected situation or sudden occurrence of a serious nature, such as an event that threatens public health and safety.
Every unexpected or sudden event does not constitute an emergency. For example, employing an attorney to assist the governing body does not constitute an emergency. Likewise, acting on a questionable bill for legal services does not constitute an emergency.
Is immediate action required?
When in doubt as to what constitutes an emergency, consider what consequences could occur if the governing body does not act immediately. If it can wait days without significant adverse consequences, then a special meeting should be called instead. Or, call the Ethics Commission to discuss the situation with staff. To satisfy the terms of an emergency meeting exemption, not only must a matter involve an emergency, the governing body also must be required to take immediate official action in response to the situation.
For example, if a flood were to contaminate a town’s water supply, the council may be required to approve various actions to protect public health and restore the system to safe operation.
Must a notice or an agenda be posted?
For an emergency meeting, the notice must be posted as soon as practicable prior to the meeting. The notice must set forth the reason for, and purpose of, the emergency meeting. Similarly, governing bodies that wish to add emergency matters to their meeting agenda must post an amended agenda which includes the emergency item. The amended agenda shall further explain the facts and circumstances which warrant adding the emergency item to the agenda.
In the event of an emergency requiring immediate official action, a state agency may file an emergency meeting notice with the Secretary of State at any time prior to the meeting. The emergency meeting notice shall state the date, time, place and purpose of the meeting and the facts and circumstances of the emergency.
Are written minutes required for an Emergency Meeting?
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Yes. The explanation for the emergency must be repeated and set forth in the written minutes of the meeting.
Should minutes be prepared?
The Act requires that written minutes of all open meetings be available to the public within a reasonable time after the meeting.
The minutes must include:
• The date, time and place of the meeting.
• The name of each member of the governing body present and absent.
• All motions, orders, resolutions, ordinances and measures proposed, as well
as the name of the person proposing each action and the disposition of the matter.
• The results of all votes, including roll call votes by member name, if such votes
When must meeting minutes be made available to the public?
Meeting minutes should usually be made available to the public one business day after the public body’s next regular meeting. If, at that meeting, the public body makes material changes to the draft minutes, then, in the absence of compelling circumstances, the approved minutes should be made available no later than three business days following the meeting.
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When may a governing body go into an executive session?
A governing body may go into an executive session for any of the reasons set forth in the Open Meetings Act at W.Va. Code § 6-9A-4. Some common grounds for going into an executive session are to discuss personnel matters or pending litigation; to consider matters involving the purchase, sale or lease of real property, or to plan or consider an official investigation. A governing body must attempt to segregate the non-exempt portions from the exempt portions of its meeting unless segregation would make a coherent discussion impossible.
How do you convene an executive session?
A member of the governing body must make a motion to go into executive session. The motion must state in plain language the grounds for convening an executive session.
For example, a member may state that he or she is moving to go into executive session based upon the personnel exception. It is not necessary to cite the specific code provision. A governing body may go into executive session to discuss only matters that appear on the meeting agenda.
Must the agenda state that the governing body will go into executive session?
No. In fact, a governing body may not decide in advance of a meeting that it will go into executive session. The agenda may indicate that it is anticipated that a matter may be discussed in executive session, but the governing body may only go into executive session by a majority vote of the members present.
The agenda item must be descriptive enough to put the public on notice of the nature of the matter being discussed regardless of whether it will be discussed in an open session or executive session.
For example, an agenda item to discuss pending litigation may read, “Discuss pending lawsuit of Smith v. Jones with legal counsel.” Once again, generic agenda items such as “Discuss pending litigation” are too vague to adequately put the public on notice as to the matter to be discussed.
May a governing body vote on matters in executive session?
No. Votes may not be taken in an executive session. A governing body may only vote after it reconvenes in an open session.
One exception is that a governing body may vote to give its attorney settlement authority in an executive session. The fact that a governing body has authorized its attorney to engage in settlement negotiations and/or has set a settlement range is not required to be disclosed. If a settlement is reached, then the settlement agreement, including the amount, becomes a matter of public record.
Is a governing body required to take minutes for an executive session?
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No. The decision of whether or not to take minutes for an executive session lies within the discretion of the governing body. The governing body may want to seek the advice of legal counsel concerning whether minutes should be taken. If a governing body decides to take minutes in an executive session, the Act does not require the disclosure of such minutes to the public.
ADVICE and ADVISORY OPINIONS
Who may get informal advice?
The Ethics Commission will provide informal advice ONLY to a governing body, or a member of a governing body, who is subject to the Open Governmental Meetings Act and who seeks advice and information as to whether an action or proposed action violates the Act.
How to obtain an Advisory Opinion?
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Any governing body, or a member of a governing body, who is subject to the Open Governmental Meetings Act may request a formal Advisory Opinion as to whether an action or proposed action violates the Act. Requests must be in writing. Written Advisory Opinions are issued by the Ethics Commission’s Committee on Open Governmental Meetings. Any such person or entity who acts in good faith reliance on the Opinion has an absolute defense in any civil suit or criminal prosecution for actions taken on the Opinion unless the Committee was willfully and intentionally misinformed as to the facts. Other governing bodies and members who rely on Advisory Opinions also have an absolute defense in civil and criminal proceedings for actions based upon the Opinions as long as the underlying facts and circumstances surrounding the action were the same or substantially the same as those ruled upon in the Advisory Opinions.
Click here to view Open Meetings Advisory Opinions
How is the Act enforced?
The Ethics Commission has no role in enforcing the Act and does not investigate complaints of alleged violations.
The circuit court in the county where the public agency regularly meets has jurisdiction to enforce the Act upon civil action commenced by any citizen of this state within 120 days after the action complained of was taken or the decision complained of was made. The circuit court is empowered to compel compliance or enjoin noncompliance with the Act and to annul a decision made in violation of the Act. An injunction may also order that subsequent actions be taken or decisions be made in conformity with the Act.
It is a violation of the 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.
Citizens filing such civil actions should be advised that other requirements of the West Virginia Code, including at least 30 days’ notice of the suit to the state executive branch agency and the Attorney General, may be required. This summary is of the Open Meetings Act’s provisions only.
Penalties for violating the Act
The Open Meetings Act provides that “[a]ny person who is a member of a public or governmental body required to conduct open meetings … and who willfully and knowingly violates the … [Act] is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars … [A] person who is convicted of a second or subsequent offense … is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars.
A public agency whose governing body is adjudged in a civil action to have conducted a meeting in violation of the … [Act] 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.
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.”
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Are committee meetings subject to the Open Meetings Act? Do committee meetings need to be noticed?
Yes. All sub-units of a governing body, regardless of size, must follow the Open Meetings Act. This includes regular, standing and ad hoc committees.
Are work sessions subject to the Open Meetings Act?
Yes. The term “work session” is frequently used by governing bodies to describe a meeting in which the members of the governing body or committee discuss a project or review a budget but do not plan to take official action during the session.
May citizens and the media record meetings?
Yes. Governing bodies may adopt rules governing the placement of recording equipment. Governing bodies may not prohibit citizens or the media from using equipment necessary for recording a meeting unless it is to prevent undue interference with the meeting. Ordinary use of such equipment alone may not be declared to constitute undue interference with a governing body’s meetings.
Does the Open Meetings Act require that meetings be recorded by the governing body?
No. However, governing bodies should check their enabling legislation or local ordinances to determine whether recording is required pursuant to statute or rule.
Are governing bodies required to allow members of the public to speak at a meeting?
No. The purpose of the Open Meetings Act is to allow citizens to observe the governing body for purposes of promoting transparency. Governing bodies are encouraged to have a public comment period. A governing body may adopt rules which impose restrictions upon public comment periods such as the amount of time which will be allocated to each speaker. A governing body may not require members of the public to register to speak more than 15 minutes before the meeting begins.
Do items that will only be discussed, but not voted on, need to be on the agenda?
Yes. This is a common misconception. If a matter is to be discussed at a meeting, the agenda must list and sufficiently describe it, even if it will not be voted on until a later meeting.
May items be added to the agenda during a meeting?
Not usually. If a citizen or a member of the governing body raises a matter during a meeting which is not on the agenda, the item may not be deliberated or voted on at the meeting. OMAOs 2007-12 and 2011-03 explain how to handle issues that may arise during a comment period. For example, members of a governing body may ask questions of the speaker and discuss logistical issues among the board members, such as placing the matter on a later agenda.
The only exception is if the item is an emergency. In that case, the governing body must follow procedures for emergency meetings and agenda items.
When must meeting minutes be made available to the public?
Meeting minutes should usually be made available to the public one business day after the public body’s next regular meeting. If, at that meeting, the public body makes material changes to the draft minutes, then, in the absence of compelling circumstances, the approved minutes should be made available no later than three business days following that meeting.
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For more information on the Open Meetings Act, contact:
West Virginia Ethics Commission
210 Brooks Street, Suite 300
Charleston WV 25301
(304)558-0664; (866)558-0664; fax (304)558-2169