If a regional airport authority sits on the line between two states under an interstate compact, which state's open-meetings law governs its meetings?

Official title

Opinion of the Attorney General's Office Regarding the Application of Open Meetings Laws for a Regional Airport Authority

Plain-English summary

The Potomac Highlands Airport Authority was created in 1998 by an interstate compact between West Virginia and Maryland and approved by Congress (Pub. L. No. 105-348). It serves Mineral County, West Virginia and Allegany County, Maryland, but the airport itself sits in West Virginia. Since its creation, the Authority had operated under Maryland's open-meetings law. The Mineral County prosecutor asked which state's law actually governed.

The AG worked through three layers of analysis. The first was the framework: under the federal Compact Clause, an interstate compact approved by Congress is "both a contract and a statute" and is interpreted under federal common-law contract principles, not state contract law (Petty v. Tennessee-Missouri Bridge Commission). The compact itself did not designate a governing state law for meetings.

The second was the text. Two provisions in the compact specifically referenced West Virginia law (the State Tax Commissioner's records examination under Article nine, Chapter six of the West Virginia Code; the Workmen's Compensation Act of West Virginia for eligible employees), and zero referenced Maryland law. The AG read those references, plus the absence of any Maryland-specific provisions, as a strong textual signal that the compact was meant to operate under West Virginia law.

The third was contra proferentem and choice-of-law. The compact's drafting style, calling Maryland "this state" without naming it but specifically naming "Mineral County, West Virginia," suggested it was drafted by Maryland's agents. Under federal contract law, ambiguities are construed against the drafter, so against Maryland here. A Restatement (Second) of Conflict of Laws analysis also favored West Virginia: the airport is physically there, the meetings occur there, the FAA classifies it as a West Virginia airport, and the relevant tax and workers' compensation provisions are West Virginia's.

The bottom line for the Authority: it had to comply with West Virginia's Open Meetings Law going forward.

Currency note

This opinion was issued in 2014. 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: What is an interstate compact?

A: An interstate compact is a binding agreement between two or more states. The U.S. Constitution's Compact Clause (Article I, § 10, cl. 3) requires congressional consent for compacts on most substantive subjects. Once Congress approves, the compact becomes federal law. States use compacts to manage shared resources, transportation networks, regional planning, water rights, prisoner exchanges, and similar issues that cross state lines.

Q: Why does federal contract law govern the interpretation of a compact rather than state law?

A: The Supreme Court has explained that congressional approval makes a compact "a law of the United States" (Cuyler v. Adams), and the Court must have "final power to pass upon the meaning and validity of compacts" (State ex rel. Dyer v. Sims). If state contract law applied, each state could effectively rewrite the compact through its own jurisprudence. Federal common law keeps interpretation uniform.

Q: What is contra proferentem?

A: A latin term meaning "against the offeror." The doctrine resolves contractual ambiguities against the party that drafted the contract. Federal contract law incorporates the doctrine. Here, the AG identified textual clues suggesting the compact was drafted by Maryland (referring to Maryland as "this state" without naming it, while specifying "Mineral County, West Virginia") and applied the rule to favor West Virginia.

Q: Why did the AG run a conflict-of-laws analysis even after concluding the compact's text favored West Virginia?

A: A belt-and-suspenders move. The AG noted that the U.S. Supreme Court has been "especially reluctant to read absent terms into an interstate compact" (Alabama v. North Carolina), so when the compact is silent on a question, courts look to other interpretive tools. The Restatement (Second) of Conflict of Laws § 188 factors (place of contracting, place of negotiating, place of performance, location of the subject matter, location of the parties) all pointed to West Virginia. The redundancy strengthens the conclusion.

Q: Could the parties have written the compact to designate Maryland law?

A: Yes. The AG noted that Congress could, "through the compact," adopt a state's law as controlling. The drafters here did not. They specified West Virginia law in two places and left the rest of the compact silent on choice-of-law. That silence forced the AG to apply default rules.

Q: Did the Authority's long history of using Maryland law affect the analysis?

A: The AG considered "the parties' course of dealing" as a Tarrant Regional Water District factor and noted that the Authority had "long operated under Maryland's meetings law." The opinion called the course of dealing "indeterminate," however, because the meetings actually took place in West Virginia. So a long practice of using Maryland law did not override the textual signals pointing to West Virginia.

Q: What does the West Virginia Open Meetings Law actually require?

A: The Open Meetings Law (W. Va. Code § 6-9A-1 et seq.) generally requires public bodies to give advance notice of meetings, post agendas, hold meetings open to the public, keep minutes, and limit closed sessions to specific enumerated purposes. The AG opinion did not walk through the specific differences between the two states' laws; it just decided which one applied.

Background and statutory framework

The Potomac Highlands Airport Authority was created by an interstate compact between West Virginia and Maryland, approved by Congress in Pub. L. No. 105-348, 112 Stat. 3212 (1998). The compact established the Authority and gave it broad powers over an airport serving the Mineral County (WV) and Allegany County (MD) area.

Under U.S. Const. art. I, § 10, cl. 3, two states cannot enter a binding compact without congressional consent. Once Congress approves, the compact becomes federal law (Cuyler v. Adams). It is "both a contract and a statute" (Oklahoma v. New Mexico). Federal contract-law principles govern its interpretation (Petty v. Tennessee-Missouri Bridge Commission), unless Congress has adopted state law as controlling.

Federal contract-law principles in this context include the standard rules of contract interpretation: start with the text (Tarrant Regional Water District), supplement with interpretive tools where text is silent or ambiguous (Tarrant; Montana v. Wyoming), apply contra proferentem to ambiguities, and run a conflict-of-laws analysis under the Restatement (Second) of Conflict of Laws when the contract does not designate a governing law.

Applying these tools to the compact:

• Text: The compact does not designate state law for meetings. Two compact provisions refer specifically to West Virginia law (Section 8, financial-records examination "in the manner required by Article nine, Chapter six of the Code of West Virginia"; Section 11, employees within the Workmen's Compensation Act of West Virginia). No Maryland references appear. Section 6 lets the Authority adopt bylaws "not inconsistent with law," which suggests state open-meetings laws govern but does not say which state.

• Drafting clues: Section 1 lets Mineral County, West Virginia enter the compact with "this state," using "this state" to refer to Maryland without naming it. Section 7 is titled "Participation by West Virginia," with no parallel section for Maryland. Together, these signs point to a Maryland-drafted document, triggering contra proferentem against Maryland.

• Conflict of laws (Restatement § 188): Three factors point to West Virginia: place of performance (the airport sits there), location of the subject matter (the airport facility), and location of the parties. Two are neutral: place of contracting and place of negotiating, since the compact was ratified by both legislatures and approved by Congress. The most important factor for the meetings issue, the AG concluded, was that meetings actually take place at the airport in West Virginia.

The AG's conclusion: West Virginia's Open Meetings Law applied. The Authority's long practice of using Maryland law did not control, because course of dealing was at most indeterminate and could not override the text and the conflicts analysis.

Citations

• W. Va. Code § 5-3-2 (AG advisory authority)
• U.S. Const. art. I, § 10, cl. 3 (Compact Clause)
• Pub. L. No. 105-348, 112 Stat. 3212 (1998)
• Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959)
• Texas v. New Mexico, 482 U.S. 124 (1987); 462 U.S. 554 (1983)
• Tarrant Reg'l Water Dist. v. Herrmann, 569 U.S. 614 (2013)
• Oklahoma v. New Mexico, 501 U.S. 221 (1991)
• Cuyler v. Adams, 449 U.S. 433 (1981)
• State ex rel. Dyer v. Sims, 341 U.S. 22 (1951)
• Alabama v. North Carolina, 560 U.S. 330 (2010)
• Restatement (Second) of Conflict of Laws § 188 (1971)

Source

• Landing page: https://ago.wv.gov/media/18041/download?inline
• Original PDF: https://ago.wv.gov/media/18041/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0140

August 8, 2014

The Honorable James W. Courrier, Jr.
Prosecuting Attorney
Office of the Prosecuting Attorney of Mineral County, West Virginia
P.O. Drawer 458
Keyser, WV 26726

Dear Prosecutor Courrier,

Your office has asked for an Opinion of the Attorney General regarding whether the meetings laws of West Virginia or Maryland should apply to meetings of the Potomac Highlands Airport Authority (the "Authority"). 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 relies solely on the factual assertions set forth in your letter to the Office of Attorney General and relevant follow-on correspondence.

According to your letter, the Authority was created by the Potomac Highlands Airport Authority Compact (the "Compact"). See Pub. L. No. 105-348, 112 Stat. 3212 (1998). Approved by the United States Congress in 1998, the Compact was intended to create an airport to serve the areas surrounding Mineral County, West Virginia and Allegany County, Maryland. You state that the Compact is silent on the question of which state's law is to be followed in conducting Authority meetings. Nonetheless, the Authority has conducted its business under the auspices of the Maryland meetings laws, not the West Virginia Open Meetings Law, and the Authority has even recently stated that it believes Maryland law has governed and should continue to govern the conduct of these meetings.

Your letter raises the following legal question:

Under the Compact, do the meetings laws of West Virginia or Maryland govern meetings of the Authority?

Interstate compacts are contracts and are to be interpreted as such. "[A] Compact is, after all, a contract." Texas v. New Mexico, 482 U.S. 124, 128 (1987) (internal quotations omitted). They are "legal document[s] that must be construed and applied in accordance with [their] terms." Id. Interstate compacts are thus "construed as contracts under the principles of contract law." Tarrant Reg'l Water Dist. v. Herrmann, 133 S. Ct. 2120, 2130 (2013).

At the same time, however, interstate compacts are governed by the Compact Clause of the U.S. Constitution and are considered to be federal law. As the Supreme Court has said, "a congressionally approved compact is both a contract and a statute." Oklahoma v. New Mexico, 501 U.S. 221, 236 n.5 (1991). Under the Compact Clause, "two States may not conclude an [interstate compact] without the consent of the United States Congress." Texas v. New Mexico, 462 U.S. 554, 564 (1983); see also U.S. Const. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State."). Once such consent is given, the compact "becomes a law of the United States." Texas, 482 U.S. at 128; see also Cuyler v. Adams, 449 U.S. 433, 438 (1981) ("congressional consent transforms an interstate compact within this Clause into a law of the United States").

Accordingly, interstate compacts are generally interpreted under federal principles of contract law. In Petty v. Tennessee-Missouri Bridge Commission, the Supreme Court rejected a lower court's reliance on state-law contract principles in interpreting a "sue-and-be-sued provision" in an interstate compact, 359 U.S. 275, 279 (1979). The Court noted that the "Court of Appeals laid emphasis on the law of Missouri" and "likewise cited Tennessee decisions strictly construing statutes permitting suits against the State." Id. The Supreme Court explained that courts interpreting an interstate compact should "turn to federal not state law," unless Congress through the compact has adopted a state's law as controlling. Id. at 280 (emphasis added). Put another way, state law cannot govern because the Supreme Court must have "final power to pass upon the meaning and validity of compacts." State ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951).

Federal principles of contract interpretation include "the standard principles of contract law", that is, "the core principles of the common law of contract that are in force in most states", augmented by "any special characteristics" of the contract being interpreted. United States v. Nat'l Steel Corp., 75 F.3d 1146, 1150 (7th Cir. 1996). The interpretation of any interstate compact begins, therefore, with the text. See Tarrant Regional Water District, 133 S. Ct. at 2130 ("as with any contract, we begin by examining the express terms of the Compact as the best indication of the intent of the parties"). Where the text is silent or "ambiguous," the Supreme Court has turned to "other interpretive tools to shed light on the intent of [a] [c]ompact's drafters." Id. at 2132; see also Montana v. Wyoming, 131 S. Ct. 1765, 1772 n.4 (2011) ("As with all contracts, we interpret the Compact according to the intent of the parties, here the signatory States."). Those tools have included "the well-established principle that States do not easily cede their sovereign powers" and "the parties' course of dealing," Tarrant Reg'l Water Dist., 133 S. Ct. at 2132, as well as principles of statutory interpretation, Oklahoma v. New Mexico, 501 U.S. 221, 236 n.5 (1991). The Supreme Court has been "especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise." Alabama v. North Carolina, 560 U.S. 330, 352 (2010).

Applying these principles, we find that the text of the Compact does not expressly address the question of which state's meetings law governs. There is no provision in the Compact that specifically identifies the state law applicable to meetings of the Authority. Nor does the Compact explicitly entrust that decision to the Authority itself. The Compact grants the Authority the power to "make and adopt all necessary bylaws, rules, and regulations for its organizations and operations," but only to the extent "not inconsistent with law." Compact § 6 (emphasis added). That caveat appears quite plainly to contemplate that the Authority does not have the power to contravene state open-meetings laws, i.e., laws relating to "organizations and operations", though it does not specify whether West Virginia or Maryland law governs.

The text does imply, however, that West Virginia's meetings law should control. The only two sections of the Compact that refer to a specific state law both reference West Virginia law. Section 8 of the Compact calls for the examination of financial records of the Authority by the State Tax Commissioner of West Virginia "in the manner required by Article nine, Chapter six of the Code of West Virginia." Section 11 of the Compact specifies that "[a]ll eligible employees of the Authority are considered to be within the Workmen's Compensation Act of West Virginia." These provisions, together with the fact that there are no references in the Compact to Maryland state law, strongly suggest that the Authority was intended to be governed by West Virginia law.

But recognizing the Supreme Court's "reluctan[ce] to read absent terms into an interstate compact," Alabama, 560 U.S. at 352, we have also looked to other interpretive tools, which we believe on balance support the conclusion that West Virginia's meetings law applies. On the one hand, "[t]he parties' conduct under the Compact" is indeterminate. Tarrant Regional Water Dist., 133 S. Ct. at 2132. The facts we have been given suggest that the Authority meets in West Virginia, though it has long operated under Maryland's meetings law.

On the other hand, the doctrine of contra proferentem, which "requires ambiguities in a document to be resolved against the drafter", favors the application of West Virginia law. HPI/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2012). The Compact is written in such a way as to suggest it was drafted by agents of Maryland. Section 1 of the Compact refers to Mineral County, West Virginia, being permitted to enter into the agreement with "this state," implying Maryland without stating its name. Section 2 similarly refers to Mineral County, West Virginia, contracting with "this state" to create the Authority. Section 7 is titled "Participation by West Virginia" and sets forth West Virginia's ability to act under the terms of this Compact; there is no similar section regarding Maryland's authority to act or participate.

Finally, a conflict of laws analysis also supports the application of West Virginia law. A conflict of laws analysis is appropriate to determine the law that "governs the rights and duties of the parties with respect to an issue in contract in the absence of an effective choice by the parties." Brewer v. Nat'l Indemnity Co., 363 F.3d 333, 338 (4th Cir. 2004). To that end, federal courts applying federal contract principles have followed the Restatement (Second) of Conflict of Laws. See Eli Lilly Do Brasil, Ltda. v. Fed. Express Corp., 502 F.3d 78, 81 (2d Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006); Chan v. Soc'y Expeditions, Inc., 123 F.3d 1287, 1297 (9th Cir. 1997). To decide which state's law should apply, the Restatement considers a number of factors to determine which state has the most significant relationship with the issue. See Restatement (Second) of Conflict of Laws § 188 (1971). Those factors are the place of contracting, the place of negotiating the contract, the place of performance, the location of the subject matter of the contract, and the location of the parties. Id. These factors are to be evaluated according to their relative importance with respect to the particular issue. Id.

Applying the factors, we believe that West Virginia has the most significant relationship with the issue. The last three factors, the place of performance, location of the subject matter of the contract, and the location of the parties, favor West Virginia. The airport is physically located in West Virginia and the Federal Aviation Administration has always classified the airport as a West Virginia airport. In addition, the state tax commissioner of West Virginia is tasked with examining the Authority's records in accordance with West Virginia law, and the Authority's tax-exempt status is under West Virginia law. Perhaps most important, it is the meetings law that is at issue, and the meetings of the Authority take place in West Virginia at the airport. The remaining factors, the place of contracting and the place of negotiating, we believe are neutral. Because this is an interstate compact, it had to be ratified by both state legislatures and consented to by Congress before becoming effective. The place of contracting and the place of negotiating arguably include all three of those locations, and thus favor neither West Virginia nor Maryland.

For all these reasons, we conclude, based on the facts you have provided us, that West Virginia's meetings law governs meetings of the Potomac Highlands Airport Authority.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Jonathan E. Porter
Assistant Attorney General