A Lesson in Public Meetings and Competitive Bidding
03/07/08
This morning's Charleston Gazette reported that Kanawha County Clerk Vera McCormick held an illegal meeting when she went behind closed doors to decide on hiring a printer for election ballots. The determination came down from the West Virginia Ethics Commission upon written request by Ms. McCormick and County Commissioner Kent Carper.
According to the article, McCormick called a meeting of the county's Board of Ballot Commissioners to hire election supply company Casto & Harris to print ballots for the upcoming 2008 elections. Apparently, the meeting was held behind closed doors and was not properly noticed. The order was for $200,000 to $300,000 in election supplies.
The West Virginia Open Governemental Proceedings Act a.k.a. "The Sunshine Law" requires the public be notified of most governmental meetings beforehand.
Although it is not clear from the article whether a request was made to the Ethics Commission for an opinion regarding the Board's failure to obtain competitive bids on the merchandise, it is clear that the printing company, Casto & Harris, had been the only company contacted about the supplies.
For any governemental and quasi-governmental agencies, boards or commissions, it is imperative that meeting be held open to the public, and that advance notice be given. Each governing body must promulgate rules by which the date, time, place and agenda of all regularly scheduled and special meetings are made available to the public and news media. The sole exception is the very rare instance when an emergency event occurs that requires immediate official action.
As a matter of practice, try to avoid executive sessions, unless absolutely necessary. An agency, board or commission may only convene in an executive session if the presiding officer of the governing body identifies the authorization under Section 4 of the Act. Section 4 provides that an executive session may be held only upon a majority affirmative vote of the members present. Section 4 also dileneates the very limited circumstances under which an executive session may be held:
- To consider acts of war, threatened attack from a foreign power, civil insurrection or riot;
- To consider 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, unless the public officer or employee or prospective public officer or employee requests an open meeting;
- For the purpose of conducting a hearing on a complaint, charge or grievance against a public officer or employee, unless the public officer or employee requests an open meeting. General personnel policy issues may not be discussed or considered in a closed meeting. Final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual must be taken in an open meeting;
- To decide upon disciplining, suspension or expulsion of any student in any public school or public college or university, unless the student requests an open meeting;
- To issue, effect, deny, suspend or revoke a license, certificate or registration under the laws of this state or any political subdivision, unless the person requests an open meeting.
- To consider the physical or mental health of any person, unless the person requests an open meeting;
- To discuss any material the disclosure of which would constitute an unwarranted invasion of an individual's privacy such as any records, data, reports, recommendations or other personal material of any educational, training, social service, rehabilitation, welfare, housing, relocation, insurance and similar program or institution operated by a public agency pertaining to any specific individual admitted to or served by the institution or program, the individual's personal and family circumstances;
- To plan or consider an official investigation or matter relating to crime prevention or law enforcement;
- To develop security personnel or devices;
- 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 any political subdivision;
- To avoid the premature disclosure of an honorary degree, scholarship, prize or similar award;
- 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 within the meaning of the West Virginia Freedom of Information Act.
Nothing in the Act permits a public agency, board, or commission to close a meeting that otherwise would be open, merely because its attorney is a participant. If the public agency, board or commission has approved or considered a lawsuit settlement in closed session, and the terms of the settlement allow disclosure, the terms of that settlement must be reported by the body and entered into its minutes within a reasonable time after the settlement is concluded.
Importantly, under no circumstance may a decision be rendered in the executive session.
Also, be mindful that discussions made during an informal gathering of a quorum of agency, commission or board members may violate the Sunshine Law. In McComas v. Board of Education of Fayette County, 475 S.E.2d 280 (W.Va. 1996), the Supreme Court of Appeals of West Virginia discussed that very issue.
Briefly, on February 19, 1995, a quorum of the Board of Education met at the central office and discussed the issue of consolidating Gauley Bridge High School. The issue, which required a quorum vote, was voted upon by the Board the following day.
The Court believed that it was reasonable to conclude that the February 19th meeting was a meeting subject to the Act's requirements and should have been public. Although the Board members gathered with good intentions and without the intent to violate the Act, the Court denied those as a defense.
The Court did note that note every gathering between or among members of a public body will constitute a meeting in violation of statutory mandates. To distinguish between those informal gatherings that do not fit within the Act, and those that do, the Court looked to the legislative purposes for enacting the Act. From the legislative statement of policy and its constitutional underpinnings, the Court believed that an expansive application to the Act's provisions were necessary to achieve its far-reaching goals.
The Court found it significant that four-fifths of the Board---a quorum---and the three highest ranking county administrators gathered with the purpose of addressing a hotly debated and highly topical matter of school business. The meeting was prearranged, although in a very casual manner, and lasted two hours. It took place at the county Board offices, and occurred the day before the crucial vote on the topic of consolidation.
Notwithstanding the fact that the discussion was a more or less a question-and-answer session, the Court believed it still needed to be open to the public. The Court advised that "conveyance of information from the chief county administrator and proponent of a proposal that is of great importance, sensitivity, and controversy to the citizens of Fayette County would seem to be the very kind of program that ought to be before the public."
As for competitive bidding, West Virginia Code § 5A-3-10 requires that the State's Purchasing Division put out for competitive bidding any purchases commodities and printing which are estimated to exceed $25,000. The statute requires reporting of multiple purchases from a bidder that, in total, exceed $25,000. The statute also has specific provisions regarding the manner in which bids are submitted, including the fact that they must be sealed.
Municipalities are empowered and authorized, pursuant to West Virginia Code § 8-12-10, to provide by ordinance whether competitive bidding is required in the purchase of materials, supplies and equipment and, if so, the type or types of purchases that require competitive bidding, as well as the method and manner in which bids are to be obtained.
There are no statutes that directly require counties to solicit competitive bids for purchases, although many have such measures in place by virtue of a written policy or by virtue of custom and practice. Even without the implementation of a competitive bidding policy, a political subdivision can dig itself into a hole if it advertises for competive bids and then fails to see the bidding process through to its conclusion. In any event, it is strongly advised that a written policy be prepared.
If you have any questions concerning open governmental proceedings or competitive bidding, please free to contact one of Bailey & Wyant, PLLC's attorneys at the Charleston office (304.345.4222) or the Wheeling office (304.233.3100), or email Jason Winnell at jwinnell@baileywyant.com.
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