On January 22, Marlinton Mayor Dennis Driscoll responded to a Freedom of Information Act (FOIA) request submitted by The Pocahontas Times on January 14.

The newspaper had requested information on an executive (closed-door) session of the Marlinton council held on January 13.

Driscoll said the subject matter of the executive session was new water discharge limits for phosphorus imposed by the Department of Environmental Protection. The mayor said the council had discussed the possibility of joining in a legal action with Hillsboro and White Sulphur Springs to repeal the new limits.

The mayor said he thought the secret session was authorized because the council was discussing "legal matters." But state law only allows executive sessions to discuss legal matters when the conversation is with an attorney and falls under attorney-client privilege.

The West Virginia Open Governmental Proceedings Act (WVOGPA) requires all governmental meetings to be open to the public and press. The declaration of legislative policy states:

"The 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. The people insist on remaining informed so that they may retain control over the instruments of government created by them."

Narrowly-defined exceptions allow governmental bodies to conduct closed-door sessions for specific reasons. The exceptions are listed in paragraph 4(b) of the WVOGPA and include discussion of personal employee information; matters involving commercial competition and privileged discussions recognized by statute or case law, such as attorney-client privilege.

Paragraph 4(b)(12) of the WVOGPA allows an executive session, "To discuss any matter which, by expressﾠ 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 freedom of information act as set forth in article one, chapter twenty-nine-b of this code."

In Advisory Opinion 2007-10, the West Virginia Ethics Commission held that attorney-client privilege would satisfy the requirements of section (4(b)(12).

No source of law authorizes a council to secretly "discuss legal matters" with an engineer.

During the January 13 meeting, the council went into executive session after the following exchange.

"I will entertain a motion to go into executive session with Mr. Hannah," said Driscoll.

When asked by this reporter for the purpose of the executive session, the mayor replied,

"The purpose of the executive session is to discuss legal matters, having to do with the Department of Environmental Protection."

"Why would this be confidential?," I asked.

"It is a beginning of possible legal action," replied the mayor. "It is the beginning of possible legal action."

"Honestly, I don't think that sounds like a legal basis for an executive session," I replied.

"Without having an attorney here, I can't tell," said the mayor. "As far as I know, if we are discussing legal matters or the beginning of legal matters, it is allowed under the executive meetings. I'm going to rule and if I'm out of order, then I'm out of order but I'm going to rule that's what we're going to do and they can take me down to wherever - take me away."

"But we will be coming out of executive session and if there are any votes, the votes will be taken at that time and you people will know," he added.

Councilmember Norris Long moved to go into executive session; councilmember Joe Smith seconded and councilmembers David Zorn, Louise Barnisky and Loretta Malcomb voted aye. Town recorder Robin Mutscheller was not present.

The public was ordered out of the chamber while contractor DeWayne Hannah and his executive aide remained in secret conference with the council.

After re-entering open session, Norris Long made the following motion:

"In regards to our executive session dealing with matters relating to the Department of Environmental Protection and legal matters therein, I make a motion that we authorize DeWayne Hannah as our engineer and contact Steve Hunter as an attorney to develop a letter to the DEP and develop a necessary plan as required by their facility."

"I also move that a letter for the mayors' signature, requesting an extension from DEP to the time requirements involved with this activity."

The council unanimously approved the motion and hastily adjourned the meeting.

When contacted by the newspaper, the DEP was unclear what issue the council might have been discussing.

Open government, conducted in public view and under public scrutiny is a pillar of our democracy.ﾠ

After submitting the FOIA request, The Pocahontas Times sought advice from the West Virginia Press Association hotline attorney, who confirmed that "discussing legal matters," by itself, is insufficient reason to justify an executive session.

A knowing violation of the Open Governmental Proceedings Act is a misdemeanor, punishable by a fine up to $1,000, in addition to legal costs incurred by a party seeking public information.