No. 14-1118 - Hardy County Comm’n v. Elmore FILED
June 3, 2016
LOUGHRY, J., concurring, in part, and dissenting, in part: released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
When the Hardy County Commission (“Commission”) adhered to the law and
gave the public the notice required of its intention to consider the purchase of the Baker
building and the imposition of a special emergency ambulance service fee (“ambulance fee”)
at the forthcoming June 24, 2013, and July 15, 2013, public meetings, the citizens of Hardy
County appeared and voiced their strong opposition to these matters. As a result, the
Commission’s initial vote on July 16, 2013, was against the purchase of the Baker building
and imposition of an ambulance fee. Just a few weeks later, however, the matter was
reconsidered on August 2, 2013, without proper notice, and the Commission’s vote changed
in favor of purchasing the Baker building and imposing the ambulance fee. Not only do
these actions reek of “back-door” politics, but they ineluctably offend the very objectives the
Open Governmental Meetings Act (hereinafter sometimes referred to as the “Act”)1 was
designed to further and protect. Accordingly, I dissent to the majority’s conclusion that the
Commission’s actions concerning the Baker building purchase and the ambulance fee are
exempt from the Act.2 Not only did the decision to impose the ambulance fee transpire
1
See W.Va. Code §§ 6-9A-1 to -12 (2015).
2
While I agree with the circuit court on the applicability of the Act, I disagree with the
circuit court’s decision to enjoin the Commission from taking any future action in regard to
this matter, its decision to impose personal liability on the individual Commissioners, and its
directive to disgorge attorney’s fees.
1
during a meeting held in defiance of the Act’s notice provisions, but it is my considered
opinion that the imposition of the ambulance fee itself was equally unlawful.
It is irrefutable that a lack of transparency in government fuels an attendant
lack of trust in government. As the annals of this state’s history demonstrate, West Virginia
has a sordid political history which understandably informs the current distrust by this state’s
citizenry and related civic disengagement. See generally Allen H. Loughry II, Don’t Buy
Another Vote, I Won’t Pay for a Landslide, The Sordid and Continuing History of Political
Corruption in West Virginia (McClain Printing Co., 2006). With the enactment of the Open
Governmental Proceedings Act in 1975, our state legislature sought to increase public
awareness, promote citizen involvement in governmental actions, and retain public control
over governmental bodies. See W.Va. Code § 6-9A-1 (2015). The intended byproduct of
sunshine laws is to “promote public confidence in . . . government, to enable substantive
public discussion on important issues, to promote more accurate reporting of meetings, and
to decreases corruption in government.” Brian J. Caveney, More Sunshine in the Mountain
State: The 1999 Amendments to the West Virginia Open Governmental Proceedings Act and
Open Hospital Proceedings Act, 102 W.Va. L. Rev. 131, 134 (1999). Given the numerous
public benefits that result from open proceedings, this Court should necessarily be reluctant
to validate governmental acts that glaringly signal the absence of such desired transparency.
Moreover, any judicial approval of non-compliant actions constitutes a violation of the
2
framework of the Open Governmental Proceedings Act–the recognition that public bodies
“exist for the singular purpose of representing citizens of this State in governmental affairs,
. . . [and] it is, therefore, in the best interests of the people of this state for the proceedings
of public agencies [to] be conducted openly, with only a few clearly defined exceptions.”
W.Va. Code § 6-9A-1 (emphasis added).
In specifying the exceptions to the general rule of open proceedings, the
Legislature has enumerated just twelve types of governmental actions where the public may
be excluded and a closed session held. See W.Va. Code § 6-9A-4(b) (2015). Because
matters pertaining to the Emergency Ambulance Service Act of 1975 (“EASA”)3 are not
included within the Act’s list of expressly-excepted subjects, the Act’s provisions apply,
barring a separate legislative enactment that “expressly and specifically” provides otherwise.
See W.Va. Code § 6-9A-3(a) (2015) (stating that Act’s provisions shall apply except “as
expressly and specifically otherwise provided by law”). I submit that EASA does not contain
the language necessary to provide an “express[] and specific[]” exemption from the Open
Governmental Proceedings Act. Id.
In deciding that the imposition of a special emergency ambulance service fee
was exempt from the Act, the majority looks to the final section of “EASA,” which provides
3
See W.Va. Code §§ 7-15-1 to -18 (2015).
3
that “no procedure or proceedings, notices, consents of approvals shall be required in
connection therewith except as may be prescribed by this article.” W.Va. Code § 7-15-18.
From this generalized language, the majority concludes that any act of the Commission
related to EASA is wholly exempt from the typically inclusive reach of the Act. See W.Va.
Code § 6-9A-3(a). In reliance on this non-specific language, the majority concludes that,
despite the lack of notice provided to the Hardy County citizens, the imposition of an
ambulance fee to facilitate the purchase of a building to house emergency ambulance service
vehicles was proper. I recognize how tempting it was for the majority to simply decide that
unless EASA requires notice for imposition of an ambulance fee, none is required. This
conclusion, however, does not survive scrutiny when viewed against the trenchant language
and overarching objectives of the Open Governmental Proceedings Act. The clear mandate
of the Act cannot be defeated by such an overly broad attempt to provide unchecked authority
with regard to the provision of emergency ambulance services. Rather than a wholesale
circumvention of the Act, a more likely scenario is that the “exemption” from notice
provision was intended to address the ministerial day-to-day functions of the emergency
ambulance authority but not its creation or funding. Under the reasoning propounded by the
majority, the Legislature decided to provide a statutorily-created, governmental entity with
carte blanche authority to act clandestinely. I have serious doubts that this is what the
Legislature intended.
4
As the Legislature wisely recognized, “the citizens of this State do not yield
their sovereignty to the governmental agencies that serve them” and “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. Likewise, this Court has observed that the Act and its
attendant “declaration of legislative policy”
generally, implement grand and fundamental provisions in our
State Constitution. Those provisions, adopted from Virginia’s
Declaration of Rights, proclaim the theory of our form of
government and embrace Article II, § 2 (powers of government
in citizens) and Article III, § 2 (magistrates servants of people)
and § 3 (rights reserved to people). Together they dramatically
call for a political system in which the people are the sovereigns
and those in government are their servants. Naturally, servants
should be loathe to exclude their sovereigns from any
substantive deliberations. As is obvious from the declaration of
policy in W.Va. Code, 6-9A-1, that is precisely the sentiment
inspired by the Sunshine Act.
McComas v. Board of Educ., 197 W.Va. 188, 197, 475 S.E.2d 280, 289 (1996) (footnotes
omitted). Addressing the critical import of the Open Governmental Proceedings Act, this
Court stated: “From the legislative statement of policy and its constitutional underpinnings,
it is clear this Court should accord an expansive reading to the Act’s provisions to achieve
its far-reaching goals. A narrow reading would frustrate the legislative intent and negate the
purpose of the statute.” Id.
In its rush to sanction the Commission’s actions, the majority disregards the
Act’s weighty mandate that “all meetings of any governing body shall be open to the public.”
5
W. Va. Code § 6-9A-3(a). Intentionally cautious in creating exemptions to this mandate, the
Legislature provided: “Except as expressly and specifically otherwise provided by law,
whether heretofore or hereinafter enacted, and except as provided in section four [§ 6-9A-4]
of this article all meetings of any governing body shall be open to the public.” Id. (emphasis
added). By restricting exemptions to the open proceedings mandate to those that are
“expressly and specifically provided by law,” reference to the Act itself appears required to
all legislation enacted in 1975 and thereafter. Noticeably absent from EASA, specifically
section eighteen, is any language that precisely indicates the provisions of the Open
Governmental Proceedings Act are not applicable. This is especially telling in view of the
fact that the Act and EASA were both enacted in the same legislative session. If the
Legislature intended to exempt EASA from the requirements of the Open Governmental
Proceedings Act, it stands to reason that, given the contemporaneous passage of the Act with
EASA, language expressly providing for such an exemption would have been included as a
part of section eighteen. See W.Va. Code § 7-15-18; W.Va. Code § 29A-1-4(b), (c) (2015)
(specifying specific instances when meetings of agency, board or commission of executive
branch of government or of legislative rule-making rule committee “do[ ] not constitute a
meeting within the meaning of article nine, chapter six of this code [Open Governmental
Proceedings Act]”). In finding that West Virginia Code § 7-15-18 constitutes an exemption
to the requirements of the Open Governmental Proceedings Act–a statutory provision that
fails to reference the Act either by title or by statutory citation–the majority has rendered
6
meaningless the Act’s requirement that an exemption must be “express” and “specific.”
W.Va. Code § 6-9A-3(a). See Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 214, 530
S.E.2d 676, 687 (1999) (“In parsing the language of a statute for its meaning, we are mindful
that ‘a cardinal rule of statutory construction is that significance and effect must, if possible,
be given to every section, clause, word or part of the statute.’”) (internal citation omitted).
Without question, West Virginia Code § 7-15-17 provides the necessary
authority for a county commission to impose and collect a “special service fee” for
emergency ambulance services. But before such a fee can be imposed, certain prerequisites
must exist as a necessary legislative backdrop to the creation of an emergency ambulance
service authority. Only where ambulance service is “not otherwise available” does the duty
of a county commission arguably even arise to provide such services. See W.Va. Code § 7
15-4. Under West Virginia Code § 7-15-4, the duty to act pursuant to EASA is further
subject to the county commission’s obligation to “make an affirmative determination that
there are funds available therefor by the inclusion of a projected expenditure for such purpose
in the current levy estimate.” Id. Of critical import is the statutory requirement that a county
commission may not provide emergency ambulance service “beyond a level commensurate
with the amount of funds actually available for such purpose.” Id. Because the record in this
case makes clear that Hardy County lacked the necessary funds for purchase of the Baker
building and because the issue of whether ambulance services were unavailable is disputed,
7
the authorizing legislation was never invoked. In textbook fashion, this case exemplifies the
pivotal need for open government. In seeking to fill the county coffers with the necessary
funds to provide emergency ambulance services (in contravention of EASA’s authority) and
by imposing a fee for such services (without first permitting the citizens of Hardy County
notice and opportunity to comment), the objectives of the Open Governmental Proceedings
Act were inexorably corrupted.
If the Legislature wants emergency ambulance authorities to operate in such
an unfettered and permissibly secretive manner, it need only amend EASA to “expressly and
specifically” exempt it from the Open Governmental Proceedings Act. W.Va. Code § 6-9A
3(a). To the extent such an amendment fails to eventualize, it will conclusively demonstrate
that the Legislature never intended that a county commission could use EASA to block the
sunshine and impose significant financial burdens on a county’s citizenry.
Accordingly, I respectfully concur, in part, and dissent, in part.
8