Legalities

January 25, 2019 - Volume 39 Issue 3

Legalities

Rebecca Tinder

By Rebecca Tinder

QUESTION:

Is it permissible for public bodies to conduct “work sessions” which are not announced to the public and/or from which the public is excluded?

RESPONSE:

In some cases, the members of a public body would like to arrange to meet for a period of time immediately before an official public meeting. They would use the time to review the agenda, discuss items with the chief executive and among themselves, and receive answers to questions. Then, being fully prepared for the public session, they would not repeat those steps, but rather could proceed in an abbreviated fashion to move through those items on the agenda.

In other instances, work sessions are desired to be used, usually on days other than regular meeting dates, when members of the public body would like to convene to receive information about a particular subject of some importance, or, perhaps, several subjects. The work session might not relate to business to be conducted at the next public meeting of the body, but it might generate decisions made at a later date, or involve subjects, such as governance, which never came to a vote but, in fact, permeated the public body's activities.

Under the Open Governmental Proceedings Act (the “Sunshine Law”), there is little room for work sessions of either variety. The Act requires that all “meetings” of any governing body be open to the public. It also imposes certain requirements about meetings, regarding advance notice to the public and the news media, the preparation and disposition of minutes, etc.

The key concept is that all of these requirements apply to “meetings.” The word “meeting” is defined in the statute as follows:

“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.

Because, most likely, the activities at a “work session,” as described above, would, at a minimum, consist of deliberating toward a decision, the session would most likely be considered to be a “meeting” subject to all the requirements of the Act. Therefore, if a work session 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.

Violations of the Act are serious matters. Under West Virginia Code §6-9A-7, willful violation of the Act by a member of a public or governmental body is a misdemeanor, punishable, for the first offense, by a fine up to $500. Further, any person who violates the Act may be liable, to a prevailing party in a civil case, for fees and other expenses incurred by that party.

It is quite likely that, in work sessions of the past, public bodies not only deliberated toward decisions, but actually made decisions. In this regard, a good argument can even be made that a public body which, at a work session, decided not to pursue a matter at an official meeting, or not to take action on a particular issue, in fact actually made a decision - a decision not to carry the matter further.

This is not to say that county boards of education cannot meet for the purposes for which work sessions were, in the past, held in private by some public bodies. To the contrary, it is perfectly permissible for school board members to convene to discuss upcoming agenda items, to study issues, to hammer out matters of governance, and even to decide not to decide certain issues. However, if they do so, the work sessions must comply with the strictures of the open meeting requirements of the Act, including proper advance notice to the public and being open to the public, with the invocation of executive sessions only as allowed by West Virginia Code §6-9A-4, etc.