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


                                             1

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


                                              1

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).


                                             2

              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

                                            3

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




                                             4

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

majority opinion.




                                            5

