Wharton reviews Open Meetings Law with commission

PARKERSBURG – Wood County Prosecutor Jason Wharton reviewed the state’s Open Meetings Law and provided copies of West Virginia Ethics Commission advisory opinions to county commissioners Thursday.

The commission has come under criticism recently after acting on items, including funding appropriations, without giving the public prior notice on its meeting agenda. According to the West Virginia Ethics Commission, under the West Virginia Open Meetings Act, “Agendas must give reasonable notice to the public of what issues will be discussed. Specifically, any matter requiring the governing body to take official action must be listed on the agenda.”

“As the chairman or commission president, it is up to you to assure compliance with the Open Meetings Act,” Wharton told commission President Wayne Dunn.

County officials said once they decide on a format for their agendas and other meeting procedures, they will provide the information to the West Virginia Ethics Commission for review.

County officials said some of the issues have arisen because of changes in their meeting schedule. At the first meeting of the new year, the commission voted 2-1, with Commissioner Blair Couch dissenting, to change the commission’s 200-year history of meeting two days a week.

The commission was meeting 9:30 a.m.-noon and afternoons as needed on Mondays and Thursdays. Under the new format, commissioners meet Mondays from 9 a.m.-12:30 p.m. or “until finished.” Commissioners are to meet on the first Thursday of the month for planning and agenda items and on the third Thursdays for probate matters.

The second and fourth Thursday meetings were eliminated, “unless needed.” If a holiday falls on a Monday, the commissioners may meet on Thursday that week, if deemed necessary.

Prior to their meeting with Wharton on Thursday, Gene VanMeter addressed the commission.

“You were meeting two days a week and making $36,000 a year. If you meet fewer days, I think your salary should be reduced,” VanMeter told the commissioners. Dunn told VanMeter the state Legislature sets the commission’s salary. “We welcome your input though; we’ve been told that before.”

Under their former procedures, commissioners scheduled a time at the beginning of the meetings to address administrative duties then scheduled appointments at specific times, but meetings were open to anyone who walked in to address them at any time they were in session, although the commission was not to make decisions without the item being on the agenda.

Agendas now may or may not contain specific appointment times; generally topics or individuals are listed and participants wait to be heard. One of the Thursday sessions, under the new schedule, was to be a “work or planning session,” so there was discussion Thursday about the need to agendize the work session and how that should be handled.

“When you are making decisions on how a meeting is conducted or how an agenda is being prepared, you need to keep these in mind,” Wharton said, referring to the ethics commission opinions and Open Meetings Law.

“It’s sometimes difficult for people from the private sector who are used to running things in a certain manner to understand when they come into government, but there are restraints, and actions cannot take place behind closed doors,” Wharton said.

“There is a balance between the government’s ability to function versus the public’s right to know,” the prosecutor said.

“Through the office of the West Virginia Ethics Commission you can seek an oral opinion and information from the executive director, and seek a written response from the committee on Open Government Proceedings, and they are required to issue that within 30 days. The opinions are binding on the parties asking for the opinion. If the body acts in good faith based on the opinion, it is protected against civil and criminal penalties,” the prosecutor noted.

Wharton said the public may raise issues not on the agenda during a public comment period.

“But the commission cannot take official action on it. If action is needed, you have to put it on a future agenda. You can only deliberate on agendized items,” he said.

“All discussion is deliberation toward a decision,” Dunn noted, asking where the line should be drawn.

“You can only deliberate on agendized items,” the prosecutor said.

Dunn said the commissioners have not yet fully decided or delineated what the “work sessions,” which he suggested, will include. The prosecutor said the commissioners still need to provide an agenda for the topics that will be covered during those sessions to allow the public to sit in if they wish.

“The agendas need to be as robust as possible, agendas used by county commissions around the state are very different, some are very lengthy, including some that list every exoneration, every invoice,” Couch said, noting one 14-page-long document. Couch obtained copies of agendas from other county commissions for comparison.

“We are looking at efficiency and functionality, not wasting a lot of time/effort,” Dunn said. “It’s frustrating.”

“Do you think we did something wrong? I don’t understand why we’re doing this,” Commissioner Steve Gainer said.

“I was contacted by the newspaper about concerns over your previous meeting,” Wharton said, referring to the meeting where the commissioners voted on non-agendized items. “At the time of your meeting I was attending a training session, which included a presentation by the Ethics Commission on the Open Meetings Law.”

Wharton cited the listing of executive sessions on agendas, noting the commission can’t decide in advance to conduct an executive session, and agendas need to be more specific about what is being discussed at a meeting. Wharton also noted if the commission sets specific meeting hours, they need to be in session throughout that entire time, and not adjourn early.

“If you post hours, you have to be in session for those hours,” he said.

“I think we need to develop the procedures in writing, decide what is manageable, then have it reviewed by the Ethics Commission. No one has ever said we were conducting business outside sessions,” Couch said.

The discussion was continued to Monday.

It was noted Wharton’s meeting with the county commission was not listed on Thursday’s agenda. The meeting agenda just noted “planning,” administrative duties and Board of Equalization and Review hearings, which were scheduled at specific times. Wharton said he had considered asking the meeting with the commission be rescheduled so it could be agendized, but upon research noted a section of the code under the definition of a meeting which does not include “logistical and procedural methods related to scheduling or regulating a meeting,” so he felt they could proceed.

The Ethics Commission has no role in enforcing the Open Meetings Act and does not investigate complaints of violations. The act provides that any citizen may file a civil action in circuit court within 120 days after the action or decision complained of occurred.

Only the court has the power to compel compliance with the act or annul a decision made in violation of the act. Anyone who willfully and knowingly violates the provisions of the act is subject to criminal prosecution for a misdemeanor.

In civil actions, in addition to injunctive relief requiring a governing body to rescind an action taken in violation of the act, the prevailing party may obtain attorneys’ fees and costs. If a public official is criminally prosecuted and found guilty, he or she may be fined up to $500 for a first offense.