HD Media Company, LLC d/b/a Charleston Gazette-Mail v. West Virginia University Board of Governors

No. 23-ICA-248 - HD Media Company, LLC d/b/a Charleston Gazette-Mail v. West
Virginia University Board of Governors FILED
July 23, 2024
released at 3:00 p.m.
SCARR, C. J., concurring, in part, and dissenting, in part: ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

I write separately from the majority to concur in part and dissent in part. I

concur with the majority opinion’s analysis and conclusion that the circuit court was

correct in reading the WVOGPA’s nonpublic matter exception, West Virginia Code § 6-

9A-4(b)(12), consistently with the WVFOIA’s internal memoranda exception, West

Virginia Code § 29B-1-4(a)(8).1 I concur with the majority in concluding that the Peters

cases2 do not expressly require an in-camera evidentiary hearing with in-person

testimony whenever or in all circumstances that a governing body asserts attorney-client

privilege as a basis to avoid the open meetings mandate, and that the circuit court had a

sufficient basis for its decision that the attorney-client privilege was applicable. I concur

with the majority opinion’s conclusion that the circuit court did not abuse its discretion

nor did it commit reversible error in refusing to award attorney fees pursuant to West

Virginia Code § 6-9A-7(b) (1999) due to the Board’s notice violations. Finally, I dissent

to the majority’s holding related to the scope of the commercial competition exception to

1
Throughout this separate opinion, I will attempt to continue to use the defined
terms used in the majority opinion.
2
For purposes of this separate opinion, Peters v. Cnty Comm’n of Wood Cnty, 205
W. Va. 481, 519 S.E.2d 179 (1999) will be referred to as Peters I. Peters v. Cnty Comm’n
of Wood Cnty, 209 W. Va. 94, 543 S.E.2d 651 (2000) (per curiam) will be referred to as
Peters II. Reference to Peters without a specific citation shall refer to both cases
collectively.

1
the WVOGPA and its conclusion that the Board met its burden to establish the

applicability of the exception.

In terms of the notice violations, like the majority, I agree with the circuit

court, and I concur with the majority’s affirmation of the circuit court’s ruling, that a

violation of the meeting notice requirements occurred. I also agree with the majority that

there is absolutely no such thing as a merely “technical” violation of the notice

requirements. To describe a violation as technical, as did the circuit court, minimizes the

importance and potential impact of a violation, particularly given the mandatory nature

and fundamental purpose and goals of the WVOGPA and the clear intent of the

Legislature. For this reason, I write separately to emphasize this issue and the Court’s

holding.

After providing as clear and strong a pronouncement of its legislative intent

as it ever has, see W. Va. Code § 6-9A-1 (Declaration of legislative policy), the

Legislature made it abundantly clear that “all meetings of any governing body shall be

open to the public.” W. Va. Code § 6-9A-3(a) (emphasis added). Next, demonstrating the

importance of the open meetings mandate and consistent with the declared legislative

intent, and to encourage members of the public to attend and participate in such meetings,

the Legislature set forth in detail specific notice requirements with which every governing

body must comply in advance of its meetings. See W. Va. Code § 6-9A-3. Included among

2
them, governing bodies must provide notice of the date, time, place, and purpose of the

meeting, with the meeting agenda, sufficiently in advance of the meeting to provide a

meaningful opportunity for interested members of the public to know the purpose of the

meeting and what will be discussed. Id. at §§(d)-(h). By doing so, members of the public

can make an informed decision about whether they want to attend the meeting, observe,

and participate in the discussion.

The circuit court found that the Board violated the WVOGPA by publishing

an inadequate meeting agenda with only generic descriptions, insufficient to provide

enough information to adequately place the public on notice that any of the six topics at

issue would be discussed at the June 19, 2020, meeting. Nevertheless, the circuit court

concluded that the violation was “technical,” essentially concluding as a result that the

violation did not warrant an award of attorney fees or invalidate any of the actions taken

at the June 19, 2020, meeting.3 In fact, in McComas v. Bd. of Educ. of Fayette Cnty., the

Supreme Court of Appeals noted that neither the statute nor its rationale allows a blanket

good faith defense; there is no intent requirement for there to be a violation. 197 W. Va.

188, 196, 475 S.E.2d 280, 288 (1996). Relying in part upon a 2015 unpublished

memorandum decision of the Supreme Court of Appeals of West Virginia (“Supreme

Court of Appeals”) directly on point, the circuit court found the generic language used in

3
In Peters II, 209 W. Va. 94, 543 S.E.2d 651 (2000) (per curiam), the Supreme
Court of Appeals of West Virginia also found the circuit court’s description of the
violation as “technical” insufficient to justify either the violation or the circuit court’s
failure to take appropriate action in response to it.

3
the agenda with the notice was simply not sufficient to advise the public, in advance of

the meeting, about the specific topics and issues that were scheduled to be discussed. See

Capriotti v. Jefferson Cnty. Plan. Comm’n., No. 13-1243, 2015 WL 869318 (W. Va. Feb.

26, 2015) (memorandum decision).4

In Capriotti, the plaintiff challenged the adequacy of the notice of a

Commission meeting based on a reference in the meeting agenda which simply stated,

“Reports from Legal Counsel and legal advice to P[lanning] C[omission].” During the

meeting, when the Commission came to this agenda item, a motion to go into closed

executive session was made and approved. In deciding whether the agenda notice was

adequate under the WVOGPA, the Supreme Court of Appeals explained the purpose

behind publishing an agenda before any public meeting:

The plain language of W. Va. Code § 6-9A-3 expressly
requires a public body to make available to the public, in
advance of a scheduled meeting, the agenda for said meeting.
The purpose of this notice requirement is to fulfill the

4
The Supreme Court of Appeals has authorized citing and relying on unpublished
memorandum decisions, especially when there is no published opinion that would serve
as well. See W. Va. R. App. P. 21(e) (“Memorandum decisions may be cited in any court
or administrative tribunal in this state….”); Syl. Pt. 5, State v. McKinley 234 W. Va. 143,
764 S.E.2d 303 (2014) (“While memorandum decisions may be cited as legal authority,
and are legal precedent, their value as precedent is necessarily more limited; where a
conflict exists between a published opinion and a memorandum decision, the published
opinion controls.”); cf. State v. Myers, 216 W. Va. 120, 126 n.10, 602 S.E.2d 796, 802
n.10 (2004) (citing an unpublished decision from Iowa and noting that although the court
“normally does not cite unpublished decisions…. [G]iven the dearth of published
decisions dealing with the issue before us, we necessarily rely on several unpublished
decisions.”).

4
Legislature’s stated policy of maintaining an “[o]pen
government” and providing “public access to
information.” W. Va. Code § 6-9A-1 (1999)(Repl. Vol.
2010). Such openness is intended to “allow[] the public to
educate itself about government decisionmaking through
individuals’ attendance and participation at government
functions … and public debate on issues deliberated within
the government.” Id. By the same token,

[p]ublic access to information promotes
attendance at meetings … and encourages
more … complete discussion of issues by
participating officials. The government also
benefits from openness because … public input
allow[s] government agencies to gauge public
preferences accurately and thereby tailor their
actions and policies more closely to public
needs….

Id.

Capriotti, 2015 WL 869318, at *5-6. (emphasis added).

After reviewing the purposes behind publishing a notice before a public

meeting, the Supreme Court of Appeals concluded that the particular notice at issue was

in violation of the WVOGPA, explaining:

Despite these statutory directives aimed at providing
notice to interested individuals of the topics to be
discussed at the meetings of public bodies, the agenda
notice provided by the Planning Commission …was not
adequate to inform the Petitioners, and other members of
the public, that it planned to discuss the FAF litigation or
a proposed settlement thereof. Rather, the agenda’s
generic reference to “legal advice” provided no indication

5
whatsoever that the ongoing FAF proceedings would be a
topic of discussion at [the meeting]. Because the agenda
notice did not adequately inform the public of the specific
items to be considered at the …meeting, we find that the
Planning Commission violated W. Va. Code § 6-9A-3….

Capriotti 2015 WL 869318 at *6. (emphasis added). Capriotti makes clear that under the

WVOGPA, using generic language and descriptions in an agenda notice is simply not

sufficient to effectively advise the public about the specific topics that are going to be

discussed.

Obviously, if the notice does not include a specific and adequately detailed

description of the topics and issues to be discussed at the meeting, it is impossible for

members of the public to discern if something will be discussed at the meeting about

which they have an interest, and possibly have something to contribute to the discussion.

Without adequate notice, they are prevented, in the first instance, from making an

informed decision whether to attend the meeting, thereby undermining the fundamental

purpose and goals of the WVOGPA. It is not a technical violation of the WVOGPA notice

requirements when it relates to providing information to the public about the purpose of

the meeting and the specific topics that will be considered and discussed.5

5
In addition to Capriotti, the Gazette has cited several Advisory Opinions from
the Ethics Commission requiring that the notice employ “language that will reasonably
place the public and the media on notice of the particular items that will be considered
during each meeting. Generic descriptions are insufficient to satisfy this requirement.”

6
In this case, Respondent’s June 19, 2020, Meeting Agenda did not mention

that it was going to discuss: the business college, emergency pay policy, federal Title IX

regulations, tuition and fees, capital projects, or a talk with the athletic director

concerning the outlook for the upcoming season. Even if these topics had been listed in

the Meeting Agenda in this fashion, the descriptions would have been inadequate to

provide the public the notice required under the WVOGPA.

It should be absolutely clear that all of the notice requirements of the

WVOGPA are essential to the purpose and goals of the WVOGPA and are to be strictly

applied and followed in all instances. This conclusion is completely consistent and

congruous with the commonsense approach and expansive reading of the WVOGPA

mandated by the Supreme Court of Appeals in Peters I, 205 W. Va. at 488, 519 S.E.2d at

186.

I also agree with the majority in concluding that the Peters cases do not

expressly require an in-camera evidentiary hearing with in-person testimony whenever

or in all circumstances that a governing body asserts attorney-client privilege as a basis

to avoid the open meetings requirements of the WVOGPA. That said, I believe it is

https://ethics.wv.gov/SiteCollectionDocuments/PDF%/20Open%20Meeting%20Opinio
ns/OMAO%202009-04.pdf.

7
important to review in more detail the circumstances in the Peters cases and what the

court actually said and did.

In Peters I, the circuit court, relying on the Commission’s assertion of

attorney-client privilege and its representation as to the subject matter of the

communications, granted the Commission summary judgment and dismissed the action.

Upon review, the Supreme Court of Appeals pointed out that the circuit court did not

know the nature and actual substance of the communications and, therefore, could not

make an informed decision whether the communications were covered by the attorney-

client privilege. See Peters I. The Court noted that based on “these factual inadequacies,”

it did not know either, and accordingly, remanded the case with direction to the circuit

court to conduct an in-camera hearing to determine whether the communications did

indeed fall within the privilege. Id. at 484-90, 519 S.E.2d at 182-88. The in-camera

hearing was necessary so the circuit court could learn, without disclosure to the opposing

party, the actual substance of the communications and the privileged information.

Without that information, there was no basis for either the trial court or the appellate court

reviewing its decision to evaluate and determine if the privilege applies.

Upon remand, despite the Commission’s suggestion to the circuit court that

it conduct an in-camera evidentiary hearing, the circuit court merely engaged in an in-

camera review of the written meeting minutes, concluding that was all that Peters I

8
required. Upon a second appeal, the Supreme Court of Appeals again remanded the case

since, not surprisingly, all the written minutes provided was the subject matter of the

communications, not their substance. The Court instructed the circuit court:

to hold an in camera hearing to determine whether or not the
communications that occurred during the three closed
meetings fell within the limited attorney-client privilege as
enunciated in Peters. In this regard, the circuit court must
examine the substance of the communications that occurred
between the Commissioners and their attorney during the
three meetings in order to determine if the meetings fell
within the attorney-client privilege.

Peters II, 209 W. Va. at 97-98, 543 S.E.2d at 654-55.

Peters can reasonably be interpreted to require an in-camera evidentiary

hearing with in-person testimony when the attorney-client privilege is asserted. It can

also be read and interpreted simply to indicate that under the circumstances in that case

it was necessary, but the Court did not intend to mandate such a procedure in all such

instances, which would interfere with the judgment and discretion of the circuit court

handling the case. Speaking for myself, I certainly hesitate, and do not believe it is the

role of the Intermediate Court of Appeals of West Virginia, to impose such a mandatory

procedure and restrict the discretion of circuit courts solely on the basis of a possible

alternative interpretation of the Peters cases.

9
Nevertheless, it is important to again note that in Peters, the Supreme Court

of Appeals twice remanded the case for an in-camera evidentiary hearing, and the second

remand made it clear that, in that case, witness testimony was required at the hearing.

The court held that a bare assertion of attorney-client privilege is insufficient to justify

closure of a meeting. Peters I, 205 W. Va. at 490, 519 S.E.2d at 188. A bare assertion of

privilege does not provide information necessary to determine the nature and substance

of the specific communications at issue. There was no recording of the meeting for the

court to consider in evaluating the assertion and the substance of the specific

communications. Also, the court at least implied a preference for first-hand, primary

evidence involving meeting participants, rather than secondary, filtered evidence when

attempting to determine the nature and substance of the communications and whether

they fall within the limited attorney-client privilege.

While an in-camera evidentiary hearing with in-person testimony may not

be a required procedure in all cases, in many, if not most instances, such a practice and

procedure would be beneficial to the circuit court in conducting a meaningful evaluation

of the privilege assertion, particularly given the usual factual nature of such an evaluation.

Moreover, such a procedure would provide the circuit court with the opportunity for

meaningful follow up inquiry not readily available when reliance is limited exclusively

to meeting minutes or attorney prepared affidavits that do not include specifics of the

actual communications at issue.

10
Any time there is a question whether the communications at issue are

protected by the attorney-client privilege, the court must determine that the

communications involved, or were made for the purpose of obtaining, legal advice as

opposed to non-legal advice such as business, accounting, marketing, personnel

management, non-legal risk management, media, or personal advice, or involved a simple

recitation of the law without analysis or commentary, none of which qualify for the

attorney-client privilege. See State ex. rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va.

316, 326, 484 S.E.2d 199, 209 (1997) (“[T]he advice must be sought … from [the]

attorney in his capacity as a legal advisor” and the advice must have involved legal

advice.); Syl. Pt. 2, State v. Burton, 163 W. Va. 40, 254 S.E.2d 129 (1979) (“[T]he advice

must be sought by the client from the attorney in his capacity as a legal advisor.”)

(emphasis added); 98 C.J.S. Witnesses § 343, Westlaw (database updated May 2024)

(“Information outside the legal professional realm is not privileged, such as information

for personal, business, investigatory, or technical services.”); 98 C.J.S. Witnesses § 344,

Westlaw (database updated May 2024) (“The privilege is inapplicable if the advice

sought is not legal advice…”); Syl. Pt. 7, State ex rel. U.S. Fidelity & Guar. Co. v. Canady,

194 W. Va. 431, 460 S.E.2d 677 (1995).

Therefore, anytime there is an assertion of attorney-client privilege it is

necessary for the court to know more than the subject matter of the communications. It

11
is necessary for the circuit court to know the actual substance of the communications

which can only occur through an in-camera review. In a given situation the in-camera

review may involve listening to a recording of the meeting and communications, hearing

oral testimony of participants in the meeting, reviewing detailed minutes of the meeting

which set forth the actual substance of communications, or conducting an in-camera

review of affidavits or sworn statements from the participants recounting their

recollection of the substance of the communications.

In this particular case, the circuit court did not conduct an in-camera review

of any recording of the meeting and did not conduct an in-camera hearing with witness

testimony to learn the substance of the communications. Instead, the circuit court

conducted an in-camera review of the affidavit of West Virginia University’s

(“University”) General Counsel, Stephanie Taylor, and an August 7, 2020, internal

memorandum from Ms. Taylor which included recommendations for bringing the

University’s rules into compliance with the updated Title IX requirements. Based on these

documents, the circuit court had more detailed and substantive information about the

nature and substance of the communications at issue. The documents appear to

demonstrate that the communications involved more than a mere recitation as to the

changes in and current state of the law under Title IX at the June 19, 2020, meeting. They

included a discussion of a plan for implementing changes to the University’s rules so they

would be in compliance with the law. To the extent the communications did not go beyond

12
a recitation of the changes and current state of the law, they appear to have been provided

for the purpose of subsequently providing legal advice concerning required and

recommended changes to the University’s rules to ensure compliance with Title IX,

which occurred in a subsequent August 14, 2020, meeting.6

My primary reason for writing separately is, that while I find most of the

majority opinion well-reasoned and undoubtedly well intentioned, I must dissent to the

majority’s holding that, in this instance, the Board had satisfied its burden to establish the

applicability of the “commercial competition” exception to all the matters and topics at

issue.7 Of even greater significance beyond this individual case, the majority’s ruling

requires me to further dissent to the expansion of the scope and overly broad definition

and construction of the “commercial competition” exception applied by the majority,

which I find inconsistent with the purpose and goals of the WVOGPA, and effectively

creates an absurd result, an exception that swallows the rule.

6
In considering this issue, the circuit court and this Court reviewed the unredacted
version of Ms. Taylor’s affidavit, and the August 7, 2020, internal memorandum, both of
which were helpful in evaluating the substance of the communications, although the
redacted version of Ms. Taylor’s affidavit provides marginally sufficient information to
support the circuit court’s decision concerning the June 19, 2020, meeting. There does
not appear to be any significant question that the August 14, 2020, meeting involved legal
advice constituting privileged communications.
7
The Title IX topic involved the attorney-client privilege issue; The Board did not
contend, and the circuit court did not find, that it was subject to the commercial
competition exception.

13
As correctly noted by the majority, the WVOGPA, codified at West Virginia

Code § 6-9A-1 et seq., makes it the public policy of West Virginia that all meetings

conducted by government entities “must be open to the public.” As noted previously, the

Legislature made its intent abundantly clear in its Declaration of legislative policy. W.

Va. Code § 6-9A-1. There is no need to search, speculate, or assume the legislative intent.

The Legislature specifically found and declared that public agencies and bodies in this

state exist for the singular purpose of representing citizens of this state in governmental

affairs, and that it is, therefore, “in the best interests of the people of this state for the

proceedings of public agencies be conducted openly, with only a few clearly defined

exceptions.”8 Id.

8
In McComas, the Supreme Court of Appeals engages in a detailed, helpful
discussion of the Legislature’s declaration of intent. As part of that discussion, it notes
that:
This declaration, and the Act generally, implement grand and
fundamental provisions in our State Constitution. Those
provisions, adopted from Virginia’s Declaration of Rights,
proclaim the theory of our form of government and embrace
Article II, § 2 (powers of government in citizens) and Article
III, § 2 (magistrates servants of people) and § 3 (rights
reserved to people). Together they dramatically call for a
political system in which the people are the sovereigns and
those in government are their servants. Naturally, servants
should be loathe to exclude their sovereigns from any
substantive deliberations. As is obvious from the declaration
of policy in W. Va. Code, 6-9A-1, that is precisely the
sentiment inspired by the Sunshine Act.

197 W. Va. 188, 197, 475 S.E.2d 280, 289 (Footnotes omitted).

14
The Legislature went further and declared that “the citizens of this state do

not yield their sovereignty to the governmental agencies that serve them” and that in

delegating authority, “[t]he people…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.” Id. The Legislature noted that open government allows the

public to educate itself about government decision-making through individuals’

attendance and participation at government functions, distribution of government

information by the press or interested citizens, and public debate on issues deliberated

within the government. The Legislature even specifically noted the benefits of public

input to issues being considered and for the government agencies to be able to gauge

public preferences accurately.

In making this declaration, the Legislature clearly recognized the benefits

of open transparent government, even though at times decision makers in government,

like in business, would prefer not to have their consideration of issues and decisions

subject to public scrutiny, debate, and criticism. In fact, commonly, the more difficult the

circumstances and decision, the greater the desire to avoid outside scrutiny, but arguably

that is when transparency, public participation, debate, and input is needed most.

However, “[t]he fundamental purpose of the open meeting law is to ensure the right of

the public to be fully informed regarding the conduct of governmental business.”

15
McComas v. Bd. of Educ. of Fayette Cnty., 197 W. Va. 188, 197, 475 S.E.2d 280, 289

(1996) (quoting State ex rel. Badke v. Village Bd., 494 N. W. 2d 408, 414 (Wis. 1993)).

According to McComas, “[f]rom the legislative statement of policy and its constitutional

underpinnings, it is clear this Court should accord an expansive reading to the Act’s

provisions to achieve its far-reaching goals. A narrow reading would frustrate the

legislative intent and negate the purpose of the statute.” Id. at 197, 475 S.E.2d at 289.

While emphasizing the importance of open and transparent meetings, the

Legislature did recognize the need for some exceptions to the open meeting requirements

in certain limited and specifically enumerated situations. See W. Va. Code § 6-9A-4(b)

(“A public agency may hold an executive session and exclude the public only when a

closed session is required for any of the following actions….”). As currently written, the

WVOGPA has twelve enumerated exceptions which are to be strictly and narrowly

construed.9 As indicated in Peters I, the court should “accord an expansive reading to the

Act’s provisions to achieve its far-reaching goals,” 205 W. Va. at 487, 519 S.E.2d at 185

9
As Justice Benjamin noted in his separate concurring and dissenting opinion in
Teets v. Miller, 237 W. Va. 473, 486, 788 S.E.2d 1,14 (2016), “[t]he Act admits of limited
exceptions that authorize a public agency to convene an executive session….and they
have been narrowly construed and enforced….” Cf. Syl. Pt. 4, Hechler v. Casey, 175 W.
Va. 434, 333 S.E.2d 799 (1985) (“The disclosure provisions of this State's Freedom of
Information Act, … are to be liberally construed, and the exemptions to such Act are to
be strictly construed.”) (citation omitted); see generally 3B Sutherland Statutory
Construction § 73.10, Westlaw (database updated November 2023) (“To protect … core
aspirations of American participatory democracy, courts liberally construe [open
meeting] statutes regulating the conduct of public affairs, and strictly construe
exemptions to such laws.”) (Footnotes omitted).

16
(internal quotation marks omitted) (quoting McComas v. Bd. of Ed., 197 W. Va. at 197,

475 S.E.2d at 289), and exceptions “must be narrowly drawn so as to not abrogate the

spirit and purpose of the Act.” 205 W. Va. at 489, 519 S.E.2d at 187 (citing Stockton

Newspapers, Inc. v. Members of the Redevelopment Agency, 171 Cal. App. 3d 95, 214

Cal. Rptr. 561 (Ct. App. 1985) (referring to the attorney-client privilege exception to

California’s open meetings act)).

Moreover, as the majority holds, and consistent with West Virginia law

generally,10 it remains the burden of the governing body seeking application of the

exception to the open meetings requirements to establish that it is applicable and

appropriate. Cf. Syl. Pt. 7, Queen v. W. Va. Univ. Hosps., Inc., 179 W. Va. 95, 365 S.E.2d

375 (1987) (the party claiming an exception from FOIA general disclosure requirements

has the burden of showing applicability of the exception); Highland Min. Co. v. W. Va.

Univ. Sch. of Med., 235 W. Va. 370, 390, 774 S.E.2d 36, 56 (2015) (the party asserting

the personal privacy exception to FOIA bears the burden of proof to establish the

applicability of the exception); Gray Media Group, Inc. v. W. Va. Dept. of Health &

10
Syl. Pt. 3, State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 484
S.E.2d 199 (1997) (burden of establishing attorney-client privilege or work product
exception, in all their elements, always rests upon person asserting it); State v. Lacy, 196
W. Va. 104, 111, 468 S.E.2d 719, 726 (1996) (the burden of proof is with the party
asserting the exception to the warrant requirement to establish that the exception is
legitimate and not pretextual); Zirkle v. Winkler, 214 W. Va. 19, 24, 585 S.E.2d 19, 24
(2003) (the burden of establishing the independent contractor defense exception to
respondeat superior lies on the party asserting the exception).

17
Human Res., __W. Va.__, __S.E.2d__, 2024 WL 2349994, at *5 (Ct. App. May 23, 2024)

(same). The party seeking to enforce the open meetings requirements has no burden of

proof, although it certainly may wish to challenge evidence offered by the governing

body or offer its own evidence if it so chooses.

The so-called “commercial competition” exception, W. Va. Code § 6-9A-

4(b)(9), like some of the other WVOGPA exceptions, is not directly or specifically

defined,11 and has not been addressed in any detail by the Supreme Court of Appeals.

Instead, the exception is explained and defined by three examples followed by the phrase

“or other matters involving commercial competition.” Accordingly, the term must be

understood in the context of the WVOGPA, and this Court must apply and rely on the

generally accepted rules of statutory construction to determine the meaning of

“commercial competition” within West Virginia Code § 6-9A-4(b)(9), with the

Legislature’s intent being paramount. I agree with the majority’s abbreviated summary

of the rules of statutory construction but do not believe the rules were followed.

West Virginia Code § 6-9A-4(b)(9), provides that a governmental body

may go into closed session to consider matters involving or affecting: the purchase, sale

or lease of property; advance construction planning; or the investment of public funds; or

11
The exception has no heading and no definition beyond the language in the
exception.

18
“other matters involving commercial competition, which if made public, might adversely

affect the financial or other interest of the state….” The exception further provides that

the non-disclosure is temporary and applies “only until the commercial competition has

been finalized and completed.”

Applying the rules and principles of statutory construction, where general

words or a general phrase in a statute follow a list of particular classes or examples, the

general words or phrase must be read and construed, and controlled and limited, by the

specific examples. See Meadows v. Wal-Mart Stores. Inc., 207 W. Va. 203, 214-15, 350

S.E.2d 676, 687-88 (1999) (general words are to be given their ordinary and familiar

meaning and general words are to be interpreted by the words surrounding them.); Syl.

Pt. 2, Parkins v. Londeree, 146 W. Va. 1051, 124 S.E.2d 471 (1962) (“[W]here general

words follow the enumeration of particular classes of persons or things, the general

words, under the rule of construction known as ejusdem generis, will be construed as

applicable only to persons or things of the same general nature or class as those

enumerated, unless an intention to the contrary is clearly shown.”); Syl. Pt. 2, W. Va. Dept.

of Highways v. Farmer, 159 W. Va. 823, 226 S.E.2d 717 (1976) (“[W]here general words

follow words of a particular and specific meaning, such general words are not to be

construed in their widest extent but are held to apply only to things of the same kind,

class or nature as those specifically mentioned.”).

19
Under the doctrine of ejusdem generis, “[w]here general
words are used in a contract after specific terms, the general
words will be limited in their meaning or restricted to things
of like kind and nature with those specified.” …The phrase
noscitur a sociis literally means “it is known from its
associates,” and the doctrine implies that the meaning of a
general word is or may be known from the meaning of
accompanying specific words…The doctrines are similar in
nature, and their application holds that in an ambiguous
phrase mixing general words with specific words, the general
words are not construed broadly but are restricted to a sense
analogous to the specific words.

Murray v. State Farm Fire and Casualty Co., 203 W. Va. 477, 485, 509 S.E.2d 1, 9 (1998).

(emphasis added).

The Supreme Court of Appeals further explained in Parkins that the

ejusdem generis rule of construction is “based on the obvious reason that if the legislature

had intended the general words to be used in their unrestricted sense, they would have

made no mention of the particular classes.” 146 W. Va. at 1061-62, 124 S.E.2d at 477

(citations omitted). The Court further indicated that “[u]nder this rule of construction,

general words do not amplify particular terms preceding them, but are themselves

restricted and explained by the particular terms.” Id. at 1062, 124 S.E.2d at 477; see also

West Virginia Consolidated Public Retirement Board v. Clark, 245 W. Va. 510, 520, 859

S.E.2d 453, 463 (2021).

20
In this case, the phrase “or other matters involving commercial

competition” must be viewed as an extension of, in the same category and class as, and

is not amplified but limited by, the three prior examples and definitions: purchase, sale

or lease of property; advance construction planning; and investment of public funds.

While I do not agree with the Gazette’s argument that only decisions, transactions, and

actions involving public funds qualify for the exception, all three of the examples, by

their nature, create a situation where advance or premature public disclosure “might”

adversely affect the interests of the governmental body. Certainly, practically speaking,

there is the potential that if there is public disclosure of any of these three activities, other

individuals or entities, whether generally competitors or not, may take actions which

compete with and might adversely affect the governing body. For example, they may seek

to purchase or bid on, or compete for the property involved, or take other action to

interject themselves into the transaction and conduct under consideration by the

governing body, and thereby compete with and adversely affect it. Conceivably, third

parties might decide to make their own investment based on information regarding the

University’s planned investment which might adversely affect the University. It is these

types of situations and context which must be used in construing the general phrase “or

other matters involving commercial competition.” Moreover, the fact that the three

examples on this list clearly contemplate by their nature a specific decision, transaction,

or action in process or under consideration which is subject to “finalization and

completion,” further supports the view that the “commercial competition” exception must

also involve a specific decision, transaction, or contemplated action, subject to

21
finalization and completion, not simply some amorphous general competition that is a

constant.

As interpreted and construed by the circuit court, and by the majority,

“commercial competition” would necessarily include any action or decision under

consideration which might impact some student’s decision to attend or not attend the

University. Under this overly broad definition, almost any academic, athletic, facilities,

social, entertainment, arts, safety and security issues, decisions and policies could

implicate “commercial competition.” Under the Board’s and majority’s view, adoption of

a grading policy change in academic course offerings; installation of lighting, sidewalks,

and vending machines; and athletic, social, and entertainment schedules and offerings

would arguably involve commercial competition because they might impact a candidate’s

decision, enrollment, and the University’s ubiquitous competition with other educational

institutions.

While in a specific situation, a decision of a specific prospective student or

specific faculty candidate being recruited by the University to attend the University may

satisfy the definition,12 a general theoretical impact on regular on-going competition is

12
For example, a university trying to recruit a well-known lecturer, or gifted
researcher, might want to keep its negotiations concerning a proposed compensation and
benefits package, or even the fact that a potential hire was considering a change of
employer, confidential until the negotiations had been concluded. Similarly, a school

22
not what is contemplated. Otherwise, as noted by the majority and by the Supreme Court

of Appeals, a narrow interpretation of the WVOGPA, i.e. broad exceptions, might invite

governing bodies to engage in avoidance tactics and evasive techniques, including

overclassifying matters as involving commercial competition to avoid public disclosure,

participation, and scrutiny. “[W]e are concerned a narrow interpretation of the Act would

invite avoidance tactics. Thus, a court applying the law should ‘push [its coverage]

beyond debatable limits in order to block evasive techniques.’” McComas v. Bd. of Educ.

of Fayette Cnty., 197 W. Va. 188, 197-198, 475 S.E.2d 280, 289-290 (1996).

The expansive scope of the commercial competition exception adopted by

the majority is an extreme position. In this instance, the exception would consume,

swallow, and vitiate the open meeting rule and undermine the WVOGPA’s stated purpose.

The Gazette suggests it amounts to repeal of the rule. In either case, this type of result is

generally sought to be avoided. State v. Barefield, 240 W. Va. 587, 599, 814 S.E.2d 250,

262 (2018) (citing State v. Hatton, 389 N.W.2d 229 (Minn. Ct. App. 1986)) (the

application of the inevitable discovery exception to the exclusionary rule as advocated

would “swallow” the entire Fourth Amendment and render its protections meaningless).

Moreover, the position adopted by the majority inevitably produces an absurd result

which courts are duty bound to avoid, particularly when the results are at odds with the

might want to keep discussions with a talented student athlete it was trying to recruit from
being prematurely disclosed.

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legislative intent. Vanderpool v. Hunt, 241 W. Va. 254, 262, 823 S.E.2d 526, 534 (2019)

(“Such parsing of the statutory language achieves an absurd result that is simply not

permitted under our rules of statutory construction.”); Taylor-Hurley v. Mingo Co. Bd. of

Ed., 209 W. Va. 780, 787, S.E.2d 702, 709 (2001) (“[I]t is this Court’s duty to avoid

whenever possible a construction of a statute which leads to absurd, inconsistent, unjust

or unreasonable results…. This does not mean, however, that we are at liberty to

substitute their own policy judgments for those of the Legislature….”); Click v. Click, 98

W. Va. 419, __, 127 S.E.2d 194, 198 (1925) (“It is always presumed, in regard to a statute,

that no absurd or unreasonable result was intended by the Legislature.”) see also In re

D.K., 248 W.Va. 699, 704, 889 S.E.2d 781, 786 (Ct. App. 2023) (Scarr, J., dissenting).

In its opinion, the majority notes that “[w]hile the canons of construction

can be helpful tools, they cannot override the intent of the Legislature….” It then

proceeds to make the unsupported leap in logic, finding that in this case these two canons

of statutory construction, i.e. “ejusdem generis and noscitur a sociis are inapplicable

here” because they allegedly override or thwart the legislative intent. However,

considering the clear legislative intent of the WVOGPA, particularly given Justice

Cleckley’s guidance and commonsense approach, the expansive definition of the

“commercial competition” exception adopted by the majority thwarts and undermines the

WVOGPA’s fundamental purpose. Syl. Pt. 4, McComas v. Bd. of Educ. of Fayette Cnty.,

24
197 W. Va. 188, 475 S.E.2d 280 (1996). As intended, in this case the application of these

canons of statutory construction actually preserves and supports the legislative intent.

Recognizing the potential problems its holding may create, the majority

attempts to justify it, while at the same time limiting it. The majority indicates that due

to the “unique challenges arising from developing a Covid-19 response, we conclude that

under these circumstances, the Board has met its burden to demonstrate the applicability

of the commercial competition exception.” It then indicates that “our holding in this case

on this point is a narrow one, founded in the extraordinary circumstances faced by the

Board in the summer of 2020….” While one might reasonably sympathize with the Board

having to deal with the national pandemic, that is not a valid basis to ignore the statute,

its legislative intent, and the obligations it creates. In this case, the majority expands the

commercial competition exception to the point that it creates a new exception that simply

does not exist, an exception that ultimately swallows the rule. Again, as indicated, it is

exactly these types of complex, unique and extraordinary circumstances, and difficult

decisions that would benefit from transparency and public participation, debate, and

input. The majority, recognizing the potential for abuse, even warns that the “exemption

must be applied with care and restraint, and we caution lower courts to remain wary of

governing bodies overclassifying matters as ‘other matters involving commercial

competition.’”

25
At various points in its opinion, the majority also reminds us that no

specific action was taken or decision made during the closed meetings at issue and,

therefore, there is nothing to invalidate pursuant to West Virginia Code § 6-9A-3(i). While

that may be true, it does not diminish the importance and mandatory nature of the open

meetings requirement and does not justify in any given case implicitly approving or

excusing a violation of the WVOGPA. “By imposing the openness requirement on

governing bodies who ‘deliberate toward a decision on a matter,’ the Legislature clearly

intended to apply to those assemblies where discussions leading up to a decision take

place.” McComas, 197 W. Va. at 195, 475 S.E.2d at 287.

Accordingly, I must agree with the Gazette that, as applied by the circuit

court and the majority, the scope of the commercial competition exception was and is

impermissibly and unjustifiably expanded in scope and is overly broad. That said, even

with this overly expansive reading and definition of the commercial competition

exception, it is still difficult to understand how discussion of most of the topics at issue

in this case could qualify as commercial competition. Significantly, we really do not

know how most of the topics at issue allegedly qualify as “commercial competition.”13

The Board never explained how each topic of discussion qualifies, leaving it to the circuit

13
Although colleges and universities undoubtedly compete with each other, not
all of that competition can be classified as commercial in nature without expanding the
exception to the point where nothing will be left of the general rule requiring public
disclosure.

26
court and this Court to speculate, apparently hoping that the courts will defer to them as

a governing body and conclude that it has met its factual and evidentiary burden to

establish the applicability of the commercial competition exception to the topics

discussed at the five closed, executive sessions between June 19, 2020, and September

18, 2020.

Those topics and issues include: (1) the University’s response to the

COVID-19 pandemic, (2) a social justice petition filed by members of the University

community to increase inclusion and diversity efforts following the death of George

Floyd, and (3) the University budgets for 2020 and 2021, all of which were considered

and ruled upon in the circuit court’s February 27, 2023, order. In its April 28, 2023, order,

the circuit court considered and ruled upon topics and issues involving (4) expectations

and outlook concerning the then upcoming football season, (5) the business college, (6)

emergency pay policy, (7) tuition and fees, and (8) the status of certain capital projects.14

Certainly, some of these topics and issues may be exempt from disclosure and open

meetings requirements due to one or more of the other exceptions to the WVOGPA, such

as those involving deliberative process, internal memoranda, confidential government

documents, or attorney-client privilege. Discussions concerning specific potential or

contemplated real estate transactions, prospective contracts, potential research and

specific economic development projects may qualify for the commercial competition

14
Not including the Title IX issue which was found to be subject to attorney-client
privilege without any argument that it involved commercial competition.

27
exception. Nevertheless, at issue here is whether the Board met its evidentiary burden to

exempt each, all, or any of these topics and issues from open meeting disclosure and

public access under the “commercial competition” exception.

As indicated, it is the burden of the Board to establish that the commercial

competition exception applies to each of these topics in order to justify exempting them

from the WVOGPA. To do so, it must establish that the topic implicates and fits within

the scope of the commercial competition exception. It must explain how it fits and

produce sufficient evidence to establish that so-called premature disclosure of certain

information concerning the topic “might” logically result in some adverse effect on the

financial or other interest of the State. While proof that such disclosure would in fact

cause adverse effect is not required, there must be evidence sufficient to establish that

logically it might cause harm.

I simply do not believe that the Board adequately identified and explained

in the various affidavits submitted to the circuit court how the specific decision,

transaction, or action at issue are similar in nature to the three examples preceding the

general phrase at issue, or how each topic is capable of completion and finalization, or

how disclosure of each of the topics would or could logically result in harm or adverse

effect on the University. It is also important to note that in a given case, part of the

discussion of a particular topic may fit under the commercial competition exception, or

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under one of the other enumerated exceptions, but the balance of the issue should be

severed and considered and discussed openly pursuant to the WVOGPA. It does not

appear that any effort was made by the Board, the circuit court, or the majority, to apply

the severability principle to the analysis in order to limit the extent and scope of the veil

of subject secrecy.

A review of the affidavits demonstrates that, for the most part, they simply

include conclusory and summary statements and raise broad, general concerns without

any specific detail or explanation beyond the allegation that certain information might

cause a potential student to choose to attend another university or that a rival university

might somehow take advantage of the situation if the information were public. In other

instances, the affidavits merely indicate generally that the topics involve so-called

“commercially sensitive information” without explaining or defining what that means. In

fact, many of the affidavits seem to equate financially related topics and so-called

commercially sensitive issues to commercial competition. These terms are not contained

in the exception and are not synonymous with commercial competition. Just because

something involves financial issues, like a budget review, or something the Board might

consider “commercially sensitive” does not mean it fits within the commercial

competition exception. Without getting into the specifics of each affidavit, these

deficiencies are present in the December 9, 2021, affidavit of James Robert Alsop and his

Expert Witness Disclosure; the December 7, 2021, affidavit of James Moeser; the

29
December 8, 2021, affidavit of Thomas V. Flaherty; and the December 6, 2021, affidavit

of Nathan Dickmeyer and his Expert Witness Disclosure. Many of the affidavits also

include arguments such as what other Universities do and what they claim are “best

practices,” but such evidence and opinions are irrelevant to the question of the scope and

applicability of the commercial competition exception under West Virginia law.

The only affidavit that even comes close to providing any specifics and

even makes a passing attempt to explain the potential for an adverse effect is the March

1, 2022, affidavit of James Robert Alsop. Mr. Alsop indicates that premature disclosure

of whether the University will proceed with certain athletic events in light of the COVID-

19 pandemic might adversely affect media contracts, stadium vendor contracts, ticket

sales, and athlete retention. But he fails to explain how this constitutes commercial

competition or what potential effect it might have on “existing” rather than prospective

contracts. Again, the Board appears to argue that, given the University’s general

competition with every other university or college in the world for students and faculty,

any information that might affect a student’s attendance decision satisfies the commercial

competition exception. This is not a reasonable standard for application of the

commercial competition exception and it is inconsistent with the direction of the Supreme

Court of Appeals to accord an expansive reading of the WVOGPA’s provisions. It

frustrates the legislative intent and undermines and negates the fundamental and far-

30
reaching goals and purpose of the WVOGPA. See McComas, 197 W. Va. at 197, 475

S.E.2d at 289.

Finally, the majority tries to make much of the fact the Gazette conducted

only limited discovery in the case and produced virtually no evidence to counter the

affidavits presented by the Board. This argument misses the point. As the majority

acknowledges, the burden of proof to establish applicability of the exception starts and

forever remains with the Board, the party asserting the exception. The fact that the

Gazette may have only conducted limited discovery and produced limited evidence for

the court to consider is irrelevant. Moreover, it is inconsistent with the majority’s own,

correct statement as to the party with the burden. Simply stated, the evaluation of the

evidence does not require or involve a comparison or weighing of evidence produced by

the opposing parties. The only issue is whether the party with the burden of proof has met

its burden. I do not believe that the Board met its burden of proof.

For these aforementioned reasons, I respectfully concur, in part, and

dissent, in part, in the majority’s opinion.

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