Sustained Outrage

Secret meetings, Aug. 12, 2011

Today’s issue of The State Register contains one meeting that violates the public notice requirements of West Virginia’s open meetings law.

The agency? The Bridgemont Community and Technical College Board of Governors.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

EPA proposes ‘pathetically weak’ science policy

On Friday afternoon, the U.S. Environmental Protection Agency issued a draft of its “scientific integrity policy,” a set of guidelines the agency said:

… Reflects the Obama Administration’s commitment to the ethical standards and transparency necessary for ensuring the highest quality science.

The group Public Employees for Environmental Responsibility isn’t too keen on the proposal, issuing a news release calling it “pathetically weak” and saying:

The U.S. Environmental Protection Agency is proposing a scientific integrity policy that affirms the status quo while codifying absolute agency control over scientific information presented to the media, Congress and peers.

… The 12-page EPA proposal consists largely of lofty rhetoric lauding current practices. Its sole pronouncement on a key issue says the agency “expects EPA scientists and engineers, regardless of grade level, position or duties to: Ensure that their work is of the highest integrity, free from political influence.” This implies that it is up to scientists to fight off management interference but the draft policy provides them no tools for doing so.

PEER points out:

By contrast, the proposal clearly authorizes managers and public affairs officials to screen information:

— Any contact with the media must adhere to “EPA’s and their Program Office’s or Region’s clearance procedures associated with ensuring accuracy and disseminating scientific information and scientific assessments” yet these clearance procedures are not laid out. Plus, “public affairs staff’ is told to “attend interviews to ensure that the Agency is being fully responsive to media questions and to ensure…consistency…”

— Scientists’ ability to publish or present papers is “subject to any management approval that may be required…” and

— Even private statements by EPA staff with an appropriate disclaimer could be sanctioned for failure to “represent the results of their scientific activities…objectively, thoroughly, and …consistent with their official responsibilities.”

Continue reading…

Secret meetings, Aug. 5, 2011

Today’s issue of The State Register contained one meeting that violated the public notice requirements of the state’s open meetings law.

The agency involved? The North Center Community Corrections Board of Directors.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, July 29, 2011

Today’s issue of the State Register contains three meetings that violated the public notice requirements of West Virginia’s open meetings law.

The agencies? The West Virginia Board of Licensed Dietitians, the Statewide Independent Living Council, and the Department of Commerce’s Information Technology Council.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

What else did Tomblin change in drilling order?

We broke a story last evening in the Gazette about two important changes the Tomblin administration made in their executive order on Marcellus Shale drilling just hours before they announced the order.

As we reported:

Language in the order was rewritten to limit a new requirement for public notice for drilling permit applications and to reduce the oversight of oil and gas operations by registered engineers, the records show.

The changes are reflected in drafts of the executive order released in response to a Gazette FOIA request and a draft posted online by the industry group Energize West Virginia.

If you’re interested in comparing drafts, the draft document discussed in the story is still available online from Energize West Virginia here and the final version is on the governor’s office website here.

What’s especially curious here is that we aren’t able to learn what role industry lobbyists might have had these changes  — or exactly what other input those lobbyists offered. That’s because, as we reported previously, the Senate President Earl Ray Tomblin, acting as governor, is refusing to release any of his office’s correspondence with industry officials who were acting as “consultants” in the writing of this executive order.

Drilling lobbyists ‘consultants’ for Tomblin?

We broke the story in this morning’s Gazette that the Tomblin administration won’t let the public see its correspondence with the oil and gas industry leading up to this month’s executive order mandating new regulations on Marcellus Shale drilling.

As we reported:

In a three-page letter, Deputy General Counsel Jeffrey M. Shawver said the Governor’s Office had withheld an unspecified number of records that Shawver said were part of the office’s “deliberative process.”

Kurt Dettinger, Tomblin’s general counsel, said in an interview that those withheld records include correspondence with various representatives of oil and gas companies and industry trade associations.

Dettinger said the Governor’s Office “consulted with members of the industry seeking their opinions and advice and we believe the opinions and advice on a regulatory proposal are exempt under West Virginia’s FOIA statute.

I’ve posted a copy of the Gazette’s FOIA request here and the governor’s office response here.

As noted in the story, Tomblin’s lawyers are citing the state Supreme Court’s ruling in the case of Daily Gazette Co. v. Development Office, in which the justices actually rules that correspondence between private parties and government agencies can very rarely be concealed from the public.

In refusing to make public correspondence between the industry and the governor, Tomblin’s lawyers are arguing that industry officials or groups were acting as “consultants or experts” providing advice and recommendations to the governor’s office about the executive order. Oddly, though, ordinary citizens and environmental groups were not given the same exclusive status — because the governor’s office released dozens of those letters and email messages.

In its ruling in the Development Office case, the Supreme Court noted a Harvard Law Review article that explained why correspondence with special interest groups should not fall within this sort of exemption to the FOIA:

The logic of such a limitation is most easily illustrated with regard to interested parties, those with a direct, personal stake in a given agency decision. The considerations underlying the exemption simply do not apply with regard to such parties: their very personal stake in the outcome provides an incentive for a full exposition of their views ample to overcome any inhibiting effects of disclosure. Moreover, confidentiality between special interest groups and Government should not be encouraged. Indeed, recommendations submitted by interested parties should be disclosed in order to help the public examine the impact that interest groups have on agency policy and to expose to public scrutiny the highly biased viewpoint that such communications are likely to contain. Communications from interested outsiders simply should not be considered intra-agency memoranda.

Secret meetings, July 22, 2011

Today’s issue of the State Register contains two meetings that violate the public notice requirements of West Virginia’s open meetings law.

The agencies?

The Infrastructure and Jobs Development Council and the Massage Therapy Licensure Board.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

More WVU secrecy

UPDATED: WVU has released a copy of the settlement. See more below.

We’ve written many times about the insistence of top West Virginia University officials of trying to operate a public university in secret … See previous posts here, here, here, here, here, and here.

And WVU never seems to disappoint in this area, as today’s story about the settlement of a lawsuit filed by former WVU Provost Gerald Lang shows us:

Neither Lang nor WVU officials immediately commented on the terms of the settlement Tuesday. WVU spokesman [and former Associated Press newsman] John Bolt told The Charleston Gazette that he would not discuss the case.

State law prohibits public agencies, such as WVU, from keeping the terms of lawsuit settlements confidential. Asked by the Gazette about WVU’s refusal to disclose the settlement terms in light of that law, Bolt would not comment.

So let’s review the law, just so everybody is clear …The 1986 West Virginia Supreme Court of Appeals ruling in Daily Gazette Company v. Withrow mandated these requirements:

— A release or other litigation settlement document in which one of the parties is a public body, involving an act or omission of the public body in the public body’s official capacity, is a “public record” within the meaning of a freedom of information statute, such as W. Va. Code, 29B-1-2(4), as amended, defining a “public record” as a writing which contains information “relating to the conduct of the public’s business[.]”

— Assurances of confidentiality [***2] do not justify withholding public information from the public; such assurances by their own force do not transform a public record into a private record for the purpose of the State’s Freedom of Information Act.

And, importantly:

A public official has a common law duty to create and maintain, for public inspection and copying, a record of the terms of settlement of litigation brought against the public official or his or her employee(s) in their official capacity.

UPDATED, Friday, July 22:

The  settlement includes no monetary payments, and both sides are covering their own legal costs. Under the deal, WVU agreed to end any academic integrity proceedings against Lang, and Lang agreed to drop his lawsuit.

John Bolt, WVU’s press spokesman, said in an e-mail that university officials were unfairly criticized on this blog and in a Gazette editorial about this matter:

Please note that, despite the Gazette’s arguments and editorial to the contrary, we have never refused to release the settlement. While there was a general agreement on the shape of the settlement, and the judge acted on that verbal agreement in dismissing the case, no settlement document existed until late yesterday afternoon when the last party signed off. And my comments of the other day were declining to “discuss” the settlement. That’s far different than refusing to release the document, which, again, did not exist until late on Thursday, July 21.

Interestingly, if you read the signature pages of the document, you’ll see that Lang signed the deal way back on June 20. Some of the WVU officials named as defendants signed it Tuesday and Wednesday of this week, while the last signatures — former WVU President C. Peter Magrath and university vice president Narvel Weese — were not added until yesterday.

And not for nothing, but WVU lawyers went along with titling the document a “confidential settlement” and referring to it that way all through the document, despite state law forbidding such secret settlements.

Secret meetings, July 15, 2011

Today’s issue of The State Register contains one meeting that violated the public notice requirements of West Virginia’s open meetings law.

The agency? The Wheeling-Ohio County Board of Health.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Secret meetings, July 8, 2011

My schedule has me a little behind on checking for open meetings violations in the State Register, so we’ll go back a couple weeks today and pick up any we missed.

— The June 24, 2011, issue of the State Register included a meeting of the Department of Administration’s Design-Build Board that violated the public notice requirements of the state’s open meetings law.

— The July 1, 2011, issue of the Register included a violation of the public notice requirements by the EMS Advisory Council.

— And today’s issue of the Register contained violations by the Division of Labor’s Manufactured Housing Board and by the Raleigh County Public Defender Services Corp.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.