No. 14-1118 – J. Michael Teets, Commissioner; William E. Keplinger, Jr., Commissioner; and The Hardy County Commission v. Wendy J. Miller, John A. Elmore, B. Wayne Thompson, Ovid Need, and Bonnie L. Haggerty FILED June 3, 2016 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS Benjamin, Justice, concurring in part and dissenting in part: OF WEST VIRGINIA
In the more than forty years since the initial 1975 enactment of the Open
Governmental Proceedings Act (the “Act”), we have never exempted an entire field of
government regulation from its purview. No matter how controversial the subject matter
or how politically charged the atmosphere surrounding the decision-making process, we
have always adhered to the Legislature’s admonition that “[t]he people in delegating
authority do not give their public servants the right to decide what is good for them to
know and what is not good for them to know.” W. Va. Code § 6-9A-1 (1999). The
principle that “all meetings of any governing body shall be open to the public,” id. § 6
9A-3 (1999) (emphasis added), has been so well-established that it was seemingly no
longer open to question. Until today, that is.
The Act admits of limited exceptions that authorize a public agency to
convene an executive session. Most of these exceptions are familiar to the public, and
they have been narrowly construed and enforced only insofar as necessary to protect
individual privacy rights, the agency’s sensitive commercial interests, and the agency’s
entitlement to the confidential advice of legal counsel. See generally W. Va. Code § 6
9A-4 (1999). We may presume that such exceptions, incorporated within the statutory
framework itself, reflect the legislative intent expressed in the Act’s very first sentence
that exceptions to the Act be “few” and “clear.” See id. § 6-9A-1 (mandating that “the
proceedings of public agencies be conducted openly, with only a few clearly defined
exceptions”). Outside the presence of the discrete conditions set forth in § 6-9A-4, the
Act applies without limitation “[e]xcept as expressly and specifically otherwise provided
by law.” Id. § 6-9A-3.
According to the majority opinion, the Emergency Ambulance Service Act
of 1975 (“EASA”) constitutes such an express and specific exception by virtue of its
provision that “no procedure or proceedings, notices, consents or approvals shall be
required in connection therewith except as may be prescribed by this article.” W. Va.
Code § 7-15-18 (the “no notices” clause); see ante 20–22, 27–28. I disagree. The reason
for the Legislature’s inclusion of the “no notices” clause within EASA is anything but
express and specific. Absent the requisite specificity, I believe the proper legal
conclusion to be that EASA must be read in conjunction with West Virginia’s long-
established and unambiguous public interest requiring open governmental proceedings,
and not as an exception that frustrates such public interest.
The “no notices” clause appears verbatim in two other West Virginia
enactments, each of which existed prior to EASA. The second of those enactments, the
Urban Mass Transportation Authority Act of 1968, W. Va. Code § 8-27-1 et seq., has
only occasionally been the subject of litigation and does not, by its text and structure,
otherwise illuminate the proper interpretation of its “no notices” clause.* Going back a
few years farther, the 1968 and 1975 enactments repeat—and are evidently derived
directly from—the 1953 statute expanding and regulating the establishment of county
public service districts (the “PSD statute”). There, the Legislature provided exactly as in
EASA, i.e., that “[t]he provisions of this article shall be liberally construed to accomplish
its purpose and no procedure or proceedings, notices, consents or approvals, are required
in connection therewith except as may be prescribed by this article.” W. Va. Code § 16
13A-21 (1994).
If the “no notices” clause in EASA means that county commissions may
propose to create an ambulance service in secret, as the majority says they may, then one
must likewise expect the same to be true with respect to the creation of county public
service districts under the ambit of the PSD statute. But nothing could be farther from
the truth. The PSD statute instead specifically provides that, upon a motion by a county
commission or submission of a voter petition “proposing the creation, enlargement,
reduction, merger, dissolution or consolidation of a public service district,” the
commission must also immediately fix a date for a public hearing,
* The “no notices” clause in the Urban Mass Transportation Authority Act provides, identically to its counterparts in EASA and in the PSD statute, infra, that “no procedure or proceedings, notices, consents or approvals shall be required in connection therewith except as may be prescribed in this article.” W. Va. Code § 8-27-25 (1976).
which date so fixed shall be not more than forty days nor less than twenty days from the date of the action. Within ten days of fixing the date of hearing, the county commission shall provide the Executive Secretary of the Public Service Commission with a copy of the order or petition and notification of the time and place of the hearing.
W. Va. Code § 16-13A-2 (2005). In addition, the clerk of the county commission “shall
cause notice of the hearing and the time and place thereof, and setting forth a description
of all the territory proposed be included therein to be given by publication as a Class I
legal advertisement,” such notice required to be published “at least ten days prior to the
hearing.” Id. The notice and hearing provisions specifically incorporated within the PSD
statute are substantially similar to those safeguards now afforded generally by operation
of the Act. Consequently, whatever notice the “no notices” clause is intended to dispense
with cannot be the fundamental public notice attendant to the creation of the statutory
subject matter.
The proper application of the “no notices” clause was illustrated in the
course of our decision in Rhodes v. Malden Pub. Serv. Dist., 171 W. Va. 645, 301 S.E.2d
601 (1983). In Rhodes, an original proceeding in mandamus, the county PSD had
imposed sewage charges on the petitioner’s garage apartment, notwithstanding that it was
connected to a septic tank and not the public line. When the charges went unpaid, the
PSD placed a lien on the petitioner’s property. Our decision cited the provision
containing the “no notices” clause in a footnote, implicitly for the proposition that an
exception exists where the notice is “prescribed by this article.” Rhodes, 171 W. Va. at
648 n.3, 301 S.E.2d at 604 n.3. The PSD statute itself required landowners to pay sewer
charges only “after the date of receiving notice that such facilities are available.” Id. at
648, 301 S.E.2d at 604 (citation omitted).
We denied the writ without prejudice, on the ground that an unresolved
issue of fact remained concerning whether the petitioner had received the requisite notice,
such that mandamus was premature. The point to be taken from Rhodes is that the “no
notices” clause was enacted solely to remove external impediments to a PSD’s execution
of its statutory mission, and not in any way to obscure the governmental processes
leading to its creation. There is no reason to believe that the Legislature’s intent was any
different in enacting EASA.
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No. 14-1118 – J. Michael Teets, Commissioner; William E. Keplinger, Jr., Commissioner; and The Hardy County Commission v. Wendy J. Miller, John A. Elmore, B. Wayne Thompson, Ovid Need, and Bonnie L. Haggerty FILED June 3, 2016 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS Benjamin, Justice, concurring in part and dissenting in part: OF WEST VIRGINIA
In the more than forty years since the initial 1975 enactment of the Open
Governmental Proceedings Act (the “Act”), we have never exempted an entire field of
government regulation from its purview. No matter how controversial the subject matter
or how politically charged the atmosphere surrounding the decision-making process, we
have always adhered to the Legislature’s admonition that “[t]he people in delegating
authority do not give their public servants the right to decide what is good for them to
know and what is not good for them to know.” W. Va. Code § 6-9A-1 (1999). The
principle that “all meetings of any governing body shall be open to the public,” id. § 6
9A-3 (1999) (emphasis added), has been so well-established that it was seemingly no
longer open to question. Until today, that is.
The Act admits of limited exceptions that authorize a public agency to
convene an executive session. Most of these exceptions are familiar to the public, and
they have been narrowly construed and enforced only insofar as necessary to protect
individual privacy rights, the agency’s sensitive commercial interests, and the agency’s
entitlement to the confidential advice of legal counsel. See generally W. Va. Code § 6
9A-4 (1999). We may presume that such exceptions, incorporated within the statutory
framework itself, reflect the legislative intent expressed in the Act’s very first sentence
that exceptions to the Act be “few” and “clear.” See id. § 6-9A-1 (mandating that “the
proceedings of public agencies be conducted openly, with only a few clearly defined
exceptions”). Outside the presence of the discrete conditions set forth in § 6-9A-4, the
Act applies without limitation “[e]xcept as expressly and specifically otherwise provided
by law.” Id. § 6-9A-3.
According to the majority opinion, the Emergency Ambulance Service Act
of 1975 (“EASA”) constitutes such an express and specific exception by virtue of its
provision that “no procedure or proceedings, notices, consents or approvals shall be
required in connection therewith except as may be prescribed by this article.” W. Va.
Code § 7-15-18 (the “no notices” clause); see ante 20–22, 27–28. I disagree. The reason
for the Legislature’s inclusion of the “no notices” clause within EASA is anything but
express and specific. Absent the requisite specificity, I believe the proper legal
conclusion to be that EASA must be read in conjunction with West Virginia’s long-
established and unambiguous public interest requiring open governmental proceedings,
and not as an exception that frustrates such public interest.
The “no notices” clause appears verbatim in two other West Virginia
enactments, each of which existed prior to EASA. The second of those enactments, the
Urban Mass Transportation Authority Act of 1968, W. Va. Code § 8-27-1 et seq., has
only occasionally been the subject of litigation and does not, by its text and structure,
otherwise illuminate the proper interpretation of its “no notices” clause.* Going back a
few years farther, the 1968 and 1975 enactments repeat—and are evidently derived
directly from—the 1953 statute expanding and regulating the establishment of county
public service districts (the “PSD statute”). There, the Legislature provided exactly as in
EASA, i.e., that “[t]he provisions of this article shall be liberally construed to accomplish
its purpose and no procedure or proceedings, notices, consents or approvals, are required
in connection therewith except as may be prescribed by this article.” W. Va. Code § 16
13A-21 (1994).
If the “no notices” clause in EASA means that county commissions may
propose to create an ambulance service in secret, as the majority says they may, then one
must likewise expect the same to be true with respect to the creation of county public
service districts under the ambit of the PSD statute. But nothing could be farther from
the truth. The PSD statute instead specifically provides that, upon a motion by a county
commission or submission of a voter petition “proposing the creation, enlargement,
reduction, merger, dissolution or consolidation of a public service district,” the
commission must also immediately fix a date for a public hearing,
* The “no notices” clause in the Urban Mass Transportation Authority Act provides, identically to its counterparts in EASA and in the PSD statute, infra, that “no procedure or proceedings, notices, consents or approvals shall be required in connection therewith except as may be prescribed in this article.” W. Va. Code § 8-27-25 (1976).
which date so fixed shall be not more than forty days nor less than twenty days from the date of the action. Within ten days of fixing the date of hearing, the county commission shall provide the Executive Secretary of the Public Service Commission with a copy of the order or petition and notification of the time and place of the hearing.
W. Va. Code § 16-13A-2 (2005). In addition, the clerk of the county commission “shall
cause notice of the hearing and the time and place thereof, and setting forth a description
of all the territory proposed be included therein to be given by publication as a Class I
legal advertisement,” such notice required to be published “at least ten days prior to the
hearing.” Id. The notice and hearing provisions specifically incorporated within the PSD
statute are substantially similar to those safeguards now afforded generally by operation
of the Act. Consequently, whatever notice the “no notices” clause is intended to dispense
with cannot be the fundamental public notice attendant to the creation of the statutory
subject matter.
The proper application of the “no notices” clause was illustrated in the
course of our decision in Rhodes v. Malden Pub. Serv. Dist., 171 W. Va. 645, 301 S.E.2d
601 (1983). In Rhodes, an original proceeding in mandamus, the county PSD had
imposed sewage charges on the petitioner’s garage apartment, notwithstanding that it was
connected to a septic tank and not the public line. When the charges went unpaid, the
PSD placed a lien on the petitioner’s property. Our decision cited the provision
containing the “no notices” clause in a footnote, implicitly for the proposition that an
exception exists where the notice is “prescribed by this article.” Rhodes, 171 W. Va. at
648 n.3, 301 S.E.2d at 604 n.3. The PSD statute itself required landowners to pay sewer
charges only “after the date of receiving notice that such facilities are available.” Id. at
648, 301 S.E.2d at 604 (citation omitted).
We denied the writ without prejudice, on the ground that an unresolved
issue of fact remained concerning whether the petitioner had received the requisite notice,
such that mandamus was premature. The point to be taken from Rhodes is that the “no
notices” clause was enacted solely to remove external impediments to a PSD’s execution
of its statutory mission, and not in any way to obscure the governmental processes
leading to its creation. There is no reason to believe that the Legislature’s intent was any
different in enacting EASA.
The upshot is that the “conflict” imagined by the majority opinion between
the Act and EASA, see ante at 26-27, simply does not exist. Both statutes can be given
their full force and effect without impinging on the other. The crux of the matter decided
today is whether the public must be afforded the notice and opportunity to comment
before its own county government may provide for and impose upon it a levy to sustain
emergency ambulance service. The majority opinion misses this, instead simply focusing
on a more abstract inquiry, “i.e. the Commission’s provision of emergency ambulance
service.” Ante at 27. Upon proper statement of the issue before this Court, it is plain to
see that the Act is the more specific statute applicable to this case and that the notice
requirements of the Act must be given effect.
In light of the foregoing, it follows that I dissent to that portion of the
majority opinion which exempts the Hardy County Commission from the notice
requirements of the Open Governmental Proceedings Act in creating, outfitting, and
funding an emergency ambulance service. Given the repeated and substantial violations
of the Act, I believe the circuit court acted within its discretion by voiding the
Commission’s un-noticed actions in connection with the service and by awarding
attorney fees to the Hardy County Citizens. The Commission should not have been
enjoined, however, from starting over pursuant to properly noticed meetings, and the
circuit court was without authority to impose personal liability for Commission
expenditures on the individual Commissioners. I also agree with the majority opinion
that the circuit court’s ruling requiring the law firm of Steptoe & Johnson to refund the
fees it received for services rendered should be reversed for the reasons set forth in the
majority opinion.
For these reasons, I respectfully concur in part, and dissent in part, from the