The American Civil Liberties Union of West Virginia (ACLU-WV) today provided notice to West Virginia House of Delegates Speaker Roger Hanshaw and House Clerk Steve Harrison that it intends to pursue litigation against the House for yet another violation of the Open Governmental Proceedings Act.
During a Tuesday, March 23 meeting of the House Government Organization committee, the audio feed that allows for public 'attendance' during the pandemic malfunctioned, and as a result, members of the public were unable to hear substantial portions of the discussion. Despite the committee and legislative staff's awareness that the public could not have meaningful access to the meeting, the committee did not adjourn and instead moved forward with the meeting.
The ACLU-WV sent another such a letter last week after the same situation occurred in the House Technology and Infrastructure Committee.
With COVID-19 pandemic restrictions in place, audio and video access to committee hearings and floor sessions remain essential, as they are the only way the public can meaningfully observe the legislative process at present. Conducting these meetings when the only opportunity for public access is not available is a violation of the Act.
The Act is a “sunshine law” intended to create greater transparency in government. In the letter, ACLU-WV Legal Director Loree Stark noted that in enacting this legislation, the Legislature stated 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.” Stark wrote that a technology failure, intentional or otherwise, does not grant the Legislature authority to decide what is good for the “[public] to know or what is good for them not to know.”
As in the previous case of a violation of the Act, If ACLU-WV proceeds with litigation, it will ask the Circuit Court of Kanawha County to order that any decision made in the committee meeting be set aside. The result is that any law that passes on the basis of action taken in the meeting would be nullified. ACLU-WV will also seek attorneys’ fees and costs.