Benjamin

Ketchum

CHARLESTON – Regular folks can't listen to tape recordings from closed meetings of elected officials, but a fact finder in a job discrimination case can listen, according to the West Virginia Supreme Court of Appeals.

On Jan. 29, four Justices ruled that Marshall County commissioners must surrender tape of an executive session to administrative law judge Phyllis Carter.

She asked for the tape while investigating a claim that the county violated the rights of job applicant John Briggs.

County commissioners invoked the privilege of confidentiality for executive sessions, but Justice Brent Benjamin perceived no privacy problem.

He wrote that "recognition of an executive session privilege is not necessary to protect matters discussed in an executive session from public scrutiny."

Such privilege, he wrote, "would make it very difficult for complainants like Mr. Briggs to prove their cases."

Chief Justice Robin Davis and Justices Thomas McHugh and Margaret Workman agreed.

Dissenting Justice Menis Ketchum warned that "governmental bodies cannot operate effectively if their executive session (closed session) discussions are subject to lawsuits."

The majority strengthened all administrative law judges, lifting their status closer to that of circuit judges.

They rejected Marshall County's position that a circuit judge could listen to the tape but an administrative law judge couldn't listen.

"Administrative law judges who adjudicate Human Rights Act cases are licensed attorneys who are authorized by statute to hold and conduct hearings, to direct the scope of discovery including the consideration of motions to compel and motions for protective orders, to determine all questions of law and fact, and to render a final decision on the merits of the complaint," Benjamin wrote.

Like circuit judges at bench trials, he wrote, they regularly consider evidence that they might ultimately find inadmissible.

"In such circumstances, we properly expect the circuit court judge or the ALJ to disregard inadmissible evidence and to render a decision based on the evidence introduced at the trial or administrative hearing," he wrote.

Briggs applied for one of two vacancies in Marshall County's 911 Department.

"Mr. Briggs, who is legally blind, subsequently was informed that he would not be hired for one of the available positions," Benjamin wrote.

Briggs filed a complaint with the state Human Rights Commission, claiming he told county commissioners that options were available to accommodate his disability.

He claimed he worked several years as a communications operator.

Human rights commissioners found probable cause to credit his allegations. They assigned the case to Carter for adjudication.

She ordered disclosure of the tape last August.

County commissioners petitioned the Justices and invoked not only executive session privilege but also attorney client privilege and work product doctrine.

Benjamin found ample authority that a judicial officer may inspect allegedly privileged materials without violating attorney client privilege or work product privacy.

On executive sessions, he rejected the county's argument that permitting discovery would impede full and frank discussion.

"Nothing in our decision herein impedes the purpose for which the Legislature enacted the executive session exception to the Open Governmental Proceedings Act," he wrote.

Officials can freely discuss in closed meetings all relevant information necessary to lawfully and efficiently conduct business, he wrote.

If officials start watching what they say in closed meetings, the majority won't mind.

"Recognition of an executive session privilege would have the pernicious effect of immunizing public agencies from civil liability for any conduct engaged in during executive sessions," Benjamin wrote.

Ketchum predicted the decision would result in embarrassment for workers.

"The majority opinion essentially eviscerates a governing body's ability to freely discuss anything -– no matter how embarrassing it might be to a public employee -– behind closed doors," he wrote.

"A public body should be permitted to go into executive session for the limited reasons specified in the Open Governmental Proceedings Act, without those private discussions being the subject of a lawsuit," he wrote.

Workman replied in a concurring opinion that the decision would have no bearing on the operation of executive sessions.

"The ALJ did not order that the audio recording be released to the public," she wrote.

Jamie Alley, special assistant in the civil rights division of Attorney General Darrell McGraw, represented the state.

Thomas Buck and Jason Pockl of Wheeling represented Marshall County.

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