By: Lydia Crawley
The Parsons Advocate
Parsons City Attorney Tim Stranko spoke to the Parsons City Council May 5th on issues related to the West Virginia Open Governmental Proceedings Act.
“I did want to draw your attention to an Ethics Commission Opinion that Mike (Simmons) has a copy of, if you want to read the opinion, about the Sunshine Act, the Open Meetings Act,” Stranko said.
In the opinion from the Ethics Commission, Stranko said that even though committees with less than a council quorum of members were meeting, they were still held to the same standards as a regular council meeting when it came to public participation and posting of agendas. Because the Parsons City Council’s Committees were designed to provide recommendations to the entirety of the Council, they were required to advertise and post the agenda for public knowledge and participation.
“The thing that is noticeable about this particular opinion is that, even less than a quorum council meets in a committee meeting and that committee meeting is designed to provide recommendation to the whole council, which I understand is what all our committees do, that committee meeting, even though its not a quorum of the councilors, has to be advertised and the agenda posted so the public can attend and participate,” Stranko said.
However, in the case of one Council Member meeting with staff or an applicant, the Open Meetings Act would not apply, Stranko said. It is only in cases of group meetings.
Council Member Seth Rosenau asked about the Personnel Committee in cases of meetings for the purpose of disciplinary action. Stranko said that the Personnel Committee was a public meeting, however under the circumstances of disciplinary action, the Committee would be entitled to enter into executive session for personnel issues, which would excuse the public. However, it only applies during discussion directly relating to the personnel issue, after which the Committee would be required to enter back into public session.
“You can talk about salaries and assignments, those are open meeting issues,” Stranko said. “Discipline, we’re not going to embarrass anyone. We will go into executive session to handle that.”
Rosenau even asked about meetings held involving the interview process. Stranko said that even those meetings would be considered open meetings under the Act, which would open them to public scrutiny.
The subject became of importance following a Committee Work Session the previous Friday in which the Parsons Advocate was invited to attend by Mayor Bruce Kolsun. Upon arrival, the paper was informed that the meeting was closed to the public and turned away by several members of the Council. Stranko clarified that Work Sessions under the Act, was classified as a meeting and therefore were open to the public.
“It is a meeting,” Stranko said. “If you meet and you are talking about City business, which I’m sure you were doing, a Work Session is a meeting.”
The only way a meeting or work session could be closed to the public would be through an executive session for one of the legally outlined exemptions set forth in the Act.
“So last Friday we had a Work Session and the public wasn’t invited or nothing, so in other words what you are saying is if we were to have another work session this Friday night and the public is invited, when we all get in here, I make a motion we go into executive session, everybody’s out and we don’t have to let them back in until we’re done,” Council Member Sam Humphrey said.
Attorney Stranko reiterated that it would only apply if the meeting was held for one of the exemptions set forth in the Open Meetings Act.
City Manager Mike Simmons also pointed out that the opinion clarified about Council Members talking on the sidewalk. If Council Members are talking outside after a meeting, they cannot discuss City business. Council members are free to congress and discuss anything they like, so long as it does not include City business.
“Several of you can be together so long as you are not discussing work towards a definitive decision on City business, say after a meeting,” Simmons said.
Council Member Kathy DiBacco said that several Council Members talking on the sidewalk after a meeting did not necessarily mean they were discussing City business because they were all residents of Parsons who knew each other. Rosenau said that so long as Council Members were talking about issues such as pets or the weather, they were abiding by the law. Stranko added that members did not forfeit their First Amendment rights when they joined the City Council.
The West Virginia Code outlines the following under Chapter 6: General Provisions Respecting Officers, Article 9A: Open Governmental Proceedings, 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.
