The Way It was Done:
WVMR Report: Immediately upon opening the meeting, the commissioners voted to go into executive session with only the Community Criminal Justice Board members, and County Prosecutor Eugene Simmons allowed to remain in the room with the Commissioners. Both Arbogast, and his attorney, Josh Hardy were excluded from attending the Executive Session, as well as were the press and other citizens.
The Law:
EXECUTIVE SESSIONS
When may a governing body go into an executive session?
A governing body may go into an executive session for any of the reasons set forth in the Open Meetings Act at W.Va. Code § 6-9A-4. Some common grounds for going into an executive session are to discuss personnel matters or pending litigation; to consider matters involving the purchase, sale or lease of real property, or to plan or consider an official investigation. A governing body must attempt to segregate the non-exempt portions from the exempt portions of its meeting unless segregation would make a coherent discussion impossible.
How do you convene an executive session?
A member of the governing body must make a motion to go into executive session. The motion must state in plain language the grounds for convening an executive session.
For example, a member may state that he or she is moving to go into executive session based upon the personnel exception. It is not necessary to cite the specific code provision. A governing body may go into executive session to discuss only matters that appear on the meeting agenda.
Must the agenda state that the governing body will go into executive session?
No. In fact, a governing body may not decide in advance of a meeting that it will go into executive session. The agenda may indicate that it is anticipated that a matter may be discussed in executive session, but the governing body may only go into executive session by a majority vote of the members present.
The agenda item must be descriptive enough to put the public on notice of the nature of the matter being discussed regardless of whether it will be discussed in an open session or executive session.
For example, an agenda item to discuss pending litigation may read, “Discuss pending lawsuit of Smith v. Jones with legal counsel.” Once again, generic agenda items such as “Discuss pending litigation” are too vague to adequately put the public on notice as to the matter to be discussed.
May a governing body vote on matters in executive session?
No. Votes may not be taken in an executive session. A governing body may only vote after it reconvenes in an open session.
One exception is that a governing body may vote to give its attorney settlement authority in an executive session. The fact that a governing body has authorized its attorney to engage in settlement negotiations and/or has set a settlement range is not required to be disclosed. If a settlement is reached, then the settlement agreement, including the amount, becomes a matter of public record.
Is a governing body required to take minutes for an executive session?
No. The decision of whether or not to take minutes for an executive session lies within the discretion of the governing body. The governing body may want to seek the advice of legal counsel concerning whether minutes should be taken. If a governing body decides to take minutes in an executive session, the Act does not require the disclosure of such minutes to the public.
The Constitution:
Constitution of United States of America 1789 (rev. 1992)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The County Way:
Attorney Hardy spoke on behalf of Director Arbogast/ He challenged the propriety of the proceedings. Hardy said that his client has never been provided with the specifics of any allegations made against him, only generalities. Also, that his understanding is that these allegations were made on behalf of a former participant in the Day Report Program, but were not made by the participant herself, but by a family member. Hardy said the complaining person does not have any legal standing under the procedures to make an allegation on behalf of another person. Hardy further stated that Director Arbogast was not given the required opportunity to present his side of any allegations before the Community Criminal Justice Board, as should have been done before that board made any termination recommendation to the commission.
Problems:
1. Guilt by Anonymous Allegation
2. Guilt by Generalization
3. Failure of Due Process of Law
4. No Opportunity to Defend One's Self.
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