Voting by phone OK for governing bodies, justices say

CHARLESTON – In a landmark decision on jails, the West Virginia Supreme Court of Appeals sidetracked to declare that governing bodies can permit voting by telephone.

The Justices held that when Regional Jail Authority board chairman Dan Huck voted by telephone to increase the daily inmate rate from $45 to $48.50, his vote counted.

The Cabell County Commission had argued that the board lacked a quorum due to the absence of Huck and the presence of someone who shouldn't have voted.

Cabell Circuit Judge David Pancake scrapped both votes last year, finding that the board had not adopted a rule allowing participation by telephone.

The Justices scrapped Pancake's decision. Justice Joseph Albright wrote, "First, there is no question that Mr. Huck was actively involved in the board meeting at issue ..."

He wrote, "Due to time and cost constraints, it has become customary for many governing bodies, even this one, to permit participation by telephone for voting purposes from time to time as circumstances may require."

He wrote, "Consequently, we are reluctant to invalidate a specific vote at a meeting of the authority solely because a procedural rule expressly permitting telephonic participation has not been formally adopted."

The Justices also rejected Cabell County's claim that Donna Lipscomb improperly voted as proxy for Secretary Tom Sussman, of the Department of Administration.

State law allowed Sussman to send a "designated representative" to a meeting, but minutes of the meeting identified Lipscomb as his proxy.

Albright wrote, "What appears to have occurred here is that the use of the term 'proxy' was inartfully inserted in the minutes ..."

The record, he wrote, suggested that she attended as the designee permitted by statute.

The Court invited the board to address telephone votes and designated representatives in new rate setting rules that the Court ordered the authority to promulgate.