By: Kelley M. Goes
The West Virginia Open Meetings Act (the “Act”)1 continues to apply to all public agencies. Because of the mandated social distancing, meetings may be required to be conducted telephonically, via live audio, or visual streaming. This is permissible under the Act, provided the public may also attend. This applies to a governing body’s emergency, special, and regular meetings.
Requirements for Noticing a Meeting:
- Special and regular meetings must be noticed in accordance with the Act and the rules promulgated by the governing body in compliance with the Act.
- In person attendance is not required if state or federal government agencies tasked with public health determine that such a gathering would be a public health risk. A best practice would be to include this guidance in the notice and minutes. The public may be provided a call-in number for a telephonic meeting or a web link to livestream. There must always be an audio option because, at a minimum, the public should be able to hear all of the proceedings.
- The notice should clearly state the time, date, purpose, and location of the meeting as well as the instructions for remote participation. The notice should also either include the agenda or information as to how the agenda can be accessed in accordance with the governing body’s rules.
- The notice should be filed with the West Virginia Secretary of State.
If an Emergency Meeting is Required
If the meeting relates to actions to address an issue caused by COVID-19, the governing body may call an emergency meeting, provided that it meets the emergency meeting test that the action required addresses: (1) an imminent threat to public health; (2) an imminent threat of damage to public or private property; or (3) an imminent material financial loss or other imminent substantial harm to a public agency, its employees or members of the public which it serves.
How to do it:
- The emergency meeting notice must be posted as soon as practicable prior to the meeting and include the date, time, and place of the meeting
- The emergency meeting agenda and minutes must include the facts and circumstances of the meeting.
- The governing body must electronically file a notice of the emergency meeting with the West Virginia Secretary of State.
Executive Session
A governing body may still go into executive session during a regular, special, or emergency meeting, provided that all requirements of the Act are observed. The executive session is part of the meeting that is closed to the public and held only upon the majority affirmative vote of members present for enumerated reasons, including: (1) to consider acts of war, threatened attack from a foreign power, civil insurrection or riot; (2) 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; (3) to conduct a hearing on a complaint, charge or grievance against a public officer or employee; (4) to decide the disciplining, suspension or expulsion of any student in a public educational institution; (5) to issue, deny, suspend, or revoke a license, certificate or registration under the laws of the state or political subdivision; (6) to consider the physical and mental health of a person; (7) to discuss material the disclosure of which would constitute an unwarranted invasion of an individual’s privacy; (8) to plan or consider an official investigation or matter relating to crime prevention or law enforcement; (9) to develop security or personal devices; (10) 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 political subdivision; (11) to avoid premature disclosure of an honorary degree, scholarship, or prize; or (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 under FOIA.
Entering Into Executive Session Remotely
- The presiding officer of the meeting must identify the authorization for the executive session and present it to the governing body and the public prior to the vote to enter into executive session.
- The governing body should pause or mute the meeting, establish a secure means to discuss the topic prompting the executive session, and following the discussion leave executive session and rejoin or un-mute the public portion of the meeting. Best practice here may be to establish a second line for the governing body to call into so that there will be no technical malfunction that might inadvertently open the executive session to the public.
- No action may be taken during the executive session.
1 W.Va. Code § 6-9A-1, et seq.