Does the West Virginia Open Meetings Act force a local volunteer fire department to open its meetings to the public?

Plain-English summary

A Mineral County attorney asked the prosecutor whether local volunteer fire departments must open their meetings under the West Virginia Open Meetings Act. The prosecutor passed the question along to the AG: are these departments "public agencies" or "governing bodies" under W. Va. Code § 6-9A-2, given that they receive public funds?

The AG's bottom-line advice was practical, not categorical: ask the Open Governmental Meetings Committee at the Ethics Commission, because their answer carries a safe harbor that an AG opinion cannot.

The Open Meetings Act and its definitions. § 6-9A-3(a) requires meetings of "any governing body" to be open to the public. § 6-9A-2(4) defines "governing body" as two or more members of "any public agency having the authority to make decisions for or recommendations to a public agency on policy or administration." § 6-9A-2(7) defines "public agency" as "any administrative or legislative unit of state, county or municipal government" with "authority by law to exercise some portion of executive or legislative power."

So the question reduces to whether a particular volunteer fire department is a "public agency" or "subunit" of one. That is fact-specific.

The two relevant Committee precedents.

Open Meetings Advisory Opinion No. 99-03 (Whitesville Volunteer Fire Department). Subject to the Act. The Whitesville VFD was "established by town ordinance," operated as a "subunit of [the] city council," received municipal funding, and exercised executive authority "to enforce the fire prevention code, recommend modifications in individual cases and provide firefighting services to the public." All those features pulled it inside the public-agency definition.

Open Meetings Advisory Opinion No. 2007-04 (McClellan District Volunteer Fire Department). Not subject to the Act. The McClellan VFD was a non-profit corporation incorporated before the Act became law, "exists independent of state authorization," and received funds from private contributions plus state and county money. The Committee said the question is whether the entity was "created by state or local authority to carry out a governmental function." McClellan was not. Crucially: "an organization's receipt of state or local funds" is not "a factor in determining whether an organization is a public corporation" subject to the Act.

So the Mineral County answer turns on each individual department's origin story. A department created by town or county ordinance falls under Whitesville (Act applies). A pre-existing or independently-incorporated non-profit that just happens to receive government funding falls under McClellan (Act does not apply).

Why the AG punts to the Committee. § 6-9A-11(a) lets a governing body or its members request a written advisory opinion from the Open Governmental Meetings Committee. Under § 6-9A-11(b)-(c), a governing body or member who "acts in good faith reliance on the opinion" gets "an absolute defense to any civil suit or criminal prosecution." That safe harbor is statutory and binding. An AG opinion has no equivalent statutory effect. So even if the AG could resolve the legal question with the facts in hand, the prudent course for the fire departments is to get a Committee opinion they can lean on.

The opinion does not list the names or histories of the Mineral County departments. The pattern the AG is telling the prosecutor: each department should look at its own founding documents, articles of incorporation, and ordinance history, then decide whether to request its own Committee opinion.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Our volunteer fire department gets county funding. Does that automatically make us a public agency?
A: No. Per the McClellan advisory opinion, "receipt of state or local funds" alone does not make an organization a public agency under the Open Meetings Act. The test is whether the entity was created by state or local authority to carry out a governmental function.

Q: We were created by town ordinance and we get city money. Is the Open Meetings Act on us?
A: Yes, almost certainly. That fact pattern matches the Whitesville advisory opinion. Notice requirements, agendas, public attendance, all apply.

Q: We are a private non-profit that contracts with the county to provide fire services. Are we covered?
A: Probably not, per the McClellan analysis. Contracting to perform a service is different from being created by the government. But it is fact-specific, and you should ask the Ethics Commission Committee in writing to lock in a safe harbor.

Q: What is the practical benefit of a Committee opinion versus just doing what we think is right?
A: § 6-9A-11(b)-(c) gives an "absolute defense to any civil suit or criminal prosecution for any action taken in good faith reliance on the opinion." Without it, a board member who hosts members-only meetings could face a personal defense in court if someone alleges an Open Meetings violation. The Committee opinion is cheap insurance.

Q: How do we request an opinion from the Committee?
A: § 6-9A-11(a) lets a governing body, or "any member thereof subject to the provisions of this article," seek the opinion. Practically, you draft a letter to the Open Governmental Meetings Committee at the West Virginia Ethics Commission describing your department's origin, governance, funding, and operations, and ask them whether the Act applies. Keep the letter focused: the Committee will respond to what is asked.

Q: Can a single member of the department request the opinion if the board disagrees?
A: § 6-9A-11(a) reads "[a]ny governing body or member thereof," so yes, an individual member can request. The safe harbor in subsection (b) protects that requesting member's own actions; subsection (c) extends the defense to those acting in good-faith reliance on an opinion someone else requested.

Background and statutory framework

§ 6-9A-3(a) (open meetings rule). "[E]xcept as expressly and specifically otherwise provided by law . . . and except as provided in section four of this article, all meetings of any governing body shall be open to the public."

§ 6-9A-2 (definitions).
- (4) "Governing body" means two or more members of "any public agency having the authority to make decisions for or recommendations to a public agency on policy or administration."
- (7) "Public agency" means "any administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power."

§ 6-9A-10 (Open Governmental Meetings Committee). Created in 1999 within the Ethics Commission. Issues advisory opinions on Open Meetings Act questions.

§ 6-9A-11 (advisory opinions and safe harbor).
- (a) Any governing body or member may request a written advisory opinion.
- (b) A governing body or member who seeks an opinion and acts in good faith reliance has "an absolute defense to any civil suit or criminal prosecution."
- (c) The safe harbor extends to those acting in good faith reliance on an opinion requested by another.

The two governing Committee opinions.
- Whitesville VFD (Op. No. 99-03): VFD created by town ordinance and operating as municipal subunit is a public agency.
- McClellan VFD (Op. No. 2007-04): pre-existing private non-profit VFD is not a public agency, even though it receives public funds; "an organization's receipt of state or local funds" is not the test.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advisory authority for prosecutors)
- W. Va. Code § 6-9A-2(4), (7) (Open Meetings Act definitions)
- W. Va. Code § 6-9A-3(a) (open meetings requirement)
- W. Va. Code § 6-9A-10 (Open Governmental Meetings Committee)
- W. Va. Code § 6-9A-11 (advisory opinions and safe harbor)

Earlier Open Meetings advisory opinions:
- Op. No. 99-03 (Whitesville VFD subject to the Act)
- Op. No. 2007-04 (McClellan VFD not subject to the Act)

Source

• Landing page: https://ago.wv.gov/media/17831/download?inline
• Original PDF: https://ago.wv.gov/media/17831/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

April 27, 2017

(304) 558-2021
Fax (304) 558-0140

Mr. F. Cody Pancake, III
Prosecuting Attorney
Office of the Prosecuting Attorney of Mineral County
P.O. Drawer 458
Keyser, WV 26726

Dear Prosecutor Pancake:

You have asked for an Opinion of the Attorney General regarding whether volunteer fire departments are required to conduct meetings under the Open Meetings Act (the "Act"). This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Attorney General's Office.

In your letter, you explain that Jason R. Sites, Esquire wrote you to request an opinion from this Office as to whether local volunteer fire departments are required to conduct meetings under the Open Meetings Act. You note that the volunteer fire departments receive public funds, and explain that you think that the departments are subject to the Act. In his letter to you, Mr. Sites explains that many of the local volunteer fire departments want their meetings to be open to members only except for a period of public comment designated on the agenda. He explains that he has reviewed the West Virginia Open Meetings Act and is of the opinion that the fire departments are not required to conduct open meetings because they are not public agencies or governing bodies under West Virginia Code § 6-9A-2. Mr. Sites explains that he also reviewed Chapter 29 of the Code relating to fire departments and could not find any guidance on fire department meetings.

Your letter raises the following specific legal question:

Does the West Virginia Open Meetings Act require local volunteer fire departments to conduct open meetings?

After a review of the relevant law, we recommend that the Mineral County volunteer fire departments seek one or more written advisory opinions from the Open Governmental Meetings Committee of the West Virginia Ethics Commission about whether they must conduct open meetings pursuant to the Open Meetings Act.

The Open Meetings Act provides that "[e]xcept as expressly and specifically otherwise provided by law, whether heretofore or hereinafter enacted, and except as provided in section four of this article, all meetings of any governing body shall be open to the public." W. Va. Code § 6-9A-3(a). The Code defines a "governing body" as consisting of "two or more members" of "any public agency having the authority to make decisions for or recommendations to a public agency on policy or administration." W. Va. Code § 6-9A-2(4). It further defines "[p]ublic agency' [as] any administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power." W. Va. Code § 6-9A-2(7).

In 1999, the Legislature amended the statute to create the Open Governmental Meetings Committee of the West Virginia Ethics Commission ("the Committee"). W. Va. Code § 6-9A-10. Under the statute, "[a]ny governing body or member thereof subject to the provisions of this article may seek advice and information from the executive director of the West Virginia Ethics Commission or request in writing an advisory opinion from the West Virginia Ethics Commission Committee on Open Governmental Meetings as to whether an action or proposed action violates the provisions of this article." W. Va. Code § 6-9A-11(a). Any governing body or member "that seeks an advisory opinion and acts in good faith reliance on the opinion" or in good faith reliance on an opinion requested by another "has an absolute defense to any civil suit or criminal prosecution for any action taken in good faith reliance on the opinion." Id. § 6-9A-11(b)-(c).

We have identified two of the Committee's advisory opinions that are relevant to your question. In the first opinion, the Committee concluded that the Whitesville Volunteer Fire Department was subject to the Act. The Committee reasoned that the department was "established by town ordinance," is a "subunit of [the] city council" that receives funds from the municipality, and exercises the executive authority to "enforce[] the fire prevention code, recommend[] modifications in individual cases and provide] firefighting services to the public." Open Meetings Advisory Opinion No. 99-03.

In the second opinion, the Committee determined that the McClellan District Volunteer Fire Department was not subject to the Act. That department was incorporated as a non-profit private organization that received funds from private contributions, as well as the State and Doddridge County. The Committee reasoned that the McClellan fire department was not a public agency subject to the Act because it had not been created as a public entity, unlike the Whitesville fire department, which had been established by town ordinance. Rather, the McClellan fire department "was initially formed as a not-for-profit corporation years before the [Open Meetings] Act became law" and thus "exists independent of state authorization." Open Meetings Advisory Opinion No. 2007-04 at 1-2. The advisory opinion further explained that "an organization's receipt of state or local funds" is not "a factor in determining whether an organization is a public corporation" subject to the Act. Id. at 2.

The answer to your question thus depends on facts specific to each volunteer fire department and which we have not been provided. Specifically, the Committee opinions appear to establish that volunteer fire departments are subject to the Open Meetings Act if they been "created by state or local authority to carry out a governmental function." Id. But where a volunteer fire department "exists independent of state authorization," it is not subject to the Act. Id. The receipt of governmental funding does not appear to be relevant to the applicability of the Act.

Even if we had the relevant facts, we would recommend that the Mineral County volunteer fire departments seek one or more written advisory opinion from the Committee about whether they must conduct open meetings pursuant to the Open Meetings Act. The Act provides for an "absolute defense to any civil suit or criminal prosecution for any action taken in good faith reliance on" an opinion issued by the Committee. W. Va. Code § 6-9A-11. An Opinion from this Office interpreting and applying the Committee's opinions does not have the same effect.

Sincerely,

Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Erica N. Peterson
Assistant Attorney General