STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

GARY L. CAPRIOTTI; EDWARD R. MOORE; February 26, 2015 EDWARD E. DUNLEAVY; AND SHEPHERDSTOWN released at 3:00 p.m. BATTLEFIELD PRESERVATION ASSOCIATION, INC., RORY L. PERRY II, CLERK 

Petitioners Below, Petitioners SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 13-1243 (Jefferson County No. 11-C-325) 

JEFFERSON COUNTY PLANNING COMMISSION, 

Respondent Below, Respondent 

FAR AWAY FARM, LLC, 

Intervenor Below, Respondent 

MEMORANDUM DECISION 

The petitioners herein, GaryL. Capriotti; Edward R. Moore; Edward E. Dunleavy; and 

Shepherdstown Battlefield Preservation Association, Inc. (“the Petitioners”), by counsel 

Linda M. Gutsell, appeal from orders entered November 8, 2013, and November 27, 2013, 

by the Circuit Court of Jefferson County. By those orders, the circuit court reversed its 

earlier ruling granting partial summary judgment to the Petitioners and found, instead, that 

the respondent herein, Jefferson County Planning Commission (“Planning Commission”), 

who is represented herein by Stephen V. Groh, had not violated the West Virginia Open 

Governmental Proceedings Act, W. Va. Code § 6-9A-1 et seq. (“the Act”). On appeal to this 

Court, the Petitioners contend that the circuit court erred by setting aside its prior ruling and 

by concluding that the Planning Commission had not violated the Act. The Planning 

Commission and the additional respondent herein, and intervenor below, Far Away Farm, 

LLC (“FAF”), by counsel Richard G. Gay and Nathan P. Cochran, maintain that the circuit 

court’s rulings were proper. 

Upon our review of the parties’ arguments, the appendix record, and the pertinent 

authorities, we affirm, in part, and reverse, in part, the rulings of the Jefferson County Circuit 

Court. We affirm the circuit court’s ruling reversing its prior order and finding that the 

Planning Commission had not violated the Act’s provisions regarding executive session 

proceedings. However, we reverse the remaining portions of the circuit court’s order and 

find that the Planning Commission did violate the Act’s requirement that it provide agenda 

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notice of the topics it planned to consider during its meeting and that it disclose the terms of 

the subject settlement. Accordingly, we remand this case for further proceedings consistent 

with this opinion. Because this case does not present a new or significant issue of law, and 

for the reasons set forth herein, we find this case satisfies the “limited circumstances” 

requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is proper 

for disposition as a memorandum decision. 

In June 2004, FAF applied for a conditional use permit (“CUP”) to allow it to develop 

a residential subdivision. The Jefferson County Planning and Zoning Director determined 

that FAF’s property was suitable for the proposed development, but, before the CUP was 

issued, certain of the Petitioners herein appealed the suitabilitydetermination to the Jefferson 

County Board of Zoning Appeals (“the BZA”) based upon their status as owners of land 

adjacent to the FAF property and also believing that FAF’s property was the site of a Civil 

War battlefield.1 During those proceedings, the CUP requested by FAF was denied. 

Protracted litigation ensued culminating in this Court’s decision in Far Away Farm, LLC v. 

Jefferson County Board of Zoning Appeals, 222 W. Va. 252, 664 S.E.2d 137 (2008), in 

which the Court approved the issuance of FAF’s requested CUP. Following the issuance of 

this Court’s opinion, the case was unsuccessfully appealed to the United States Supreme 

Court. See Dunleavy v. Far Away Farm, LLC, 555 U.S. 1012, 129 S. Ct. 573, 172 L. Ed. 2d 

431 (2008) (denying certiorari). Thereafter, the Planning Commission filed a federal lawsuit 

against FAF seeking to have this Court’s decision overturned, which suit was dismissed. See 

Jefferson Cnty. Planning Comm’n v. Far Away Farms, LLC, No. 3:09-CV-45 (BAILEY), 

2009 WL 3617749 (N.D. W. Va. Oct. 29, 2009) (unreported decision). 

Following the conclusion of the federal court proceedings, FAF made two requests 

to the Planning Commission for consideration at its December 14, 2010, meeting: (1) that all 

Planning Commission members who had been involved in the federal lawsuit recuse 

themselves and (2) that the impending deadlines associated with FAF’s CUP be extended 

insofar as it had been unable to proceed with its development plans due to the ongoing and 

protracted litigation or that it be granted a variance therefrom.2 The Planning Commission 

denied both of these requests. FAF then requested an order from the Planning Commission 

1

It since has been determined that the Civil War battle believed to have occurred on 

FAF’s property in fact occurred on nearby property and not on the property that FAF seeks 

to develop. 

2

FAF based its request for the extension of its deadlines and/or a variance therefrom 

on W. Va. Code § 8A-5-12(f) (2010) (Repl. Vol. 2012) and this Court’s prior decision in 

Jefferson Utilities, Inc. v. Jefferson County Board of Zoning Appeals, 218 W. Va. 436, 624 

S.E.2d 873 (2005). 

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memorializing its decisions and filed a petition for writ of certiorari in the Jefferson County 

Circuit Court to obtain relief from the Planning Commission’s rulings. Although the 

Petitioners moved to intervene in FAF’s certiorari proceeding, and a hearing was held on 

their motion, the circuit court did not render a final ruling on said motion. 

Thereafter, FAF tendered a settlement offer to the Planning Commission’s attorney 

on July 26, 2011, shortly before the Planning Commission’s regularly scheduled meeting for 

that night. When it reached its listed agenda item entitled “Reports from Legal Counsel and 

legal advice to P[lanning]C[ommission],” a motion was made to go into closed executive 

session to discuss legal matters; the motion carried. During the executive session, counsel 

for the Planning Commission presented FAF’s settlement offer and conferred with the 

Planning Commission, and the Planning Commission reportedly discussed a counteroffer. 

Upon a successful motion to end the closed executive session and return to public session, 

an additional motion was made “to proceed with the order as presented by Counsel in 

executive session and to authorize [the Planning Commission] President to sign the order”; 

this motion also passed. Following the meeting, a counteroffer was tendered to FAF. By 

order entered August 3, 2011, the circuit court approved the parties’ settlement3 and 

dismissed the certiorari proceeding. By notation on the court’s order, a copy of the 

settlement order was sent to counsel for each of the two parties and to counsel for the 

Petitioners. Thereafter, on September 21, 2011, the Petitioners filed a petition in the Circuit 

Court of Jefferson County against the Planning Commission alleging violations of the Open 

Governmental Proceedings Act and requesting that the settlement between FAF and the 

Planning Commission be annulled due to such alleged violations. FAF moved to intervene 

in the Petitioners’ suit and was granted intervenor status. 

By order entered June 19, 2012, the circuit court granted partial summary judgment 

to the Petitioners finding that the Planning Commission had violated the Act’s advance notice 

requirements of W. Va. Code § 6-9A-3 (1999) (Repl. Vol. 2010)4 because the Planning 

Commission had not listed the specific topic of the FAF litigation on its July 26, 2011, 

meeting agenda. The court additionally found that the Planning Commission had failed to 

comply with W. Va. Code § 6-9A-4(b)(11) (1999) (Repl. Vol. 2010) insofar as it did not 

reveal that it had received a settlement offer that it would be considering. Finally, the court 

determined that the Planning Commission had failed to disclose the terms of the settlement 

within a “reasonable time after the settlement is concluded” as required by W. Va. Code § 6­

3

The agreed settlement resulted in the reissuance of FAF’s CUP, permission for FAF 

to use its prior documentation in lieu of the alternate documentation required under the 

county’s new subdivision ordinance, and the resetting of the applicable deadlines. 

4

See infra note 6. 

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9A-4(b)(11). While the circuit court denominated this ruling as an appealable, final order, 

the court did not grant any relief to the Petitioners other than an award of partial summary 

judgment. The Planning Commission and FAF appealed the circuit court’s rulings to this 

Court, but this Court dismissed the appeal upon the Petitioners’ motion. On June 11, 2013, 

the Planning Commission held a curative meeting in an attempt to remedy the violations of 

the Act that the circuit court had identified in its partial summary judgment order. 

The Petitioners then requested the circuit court to determine the proper remedy to 

award to them as a result of the Planning Commission’s violations of the Act. During the 

course of the proceedings, the Planning Commission filed a “Motion to Reconsider and Set 

Aside Partial Summary Judgment,” which the circuit court treated as a motion made pursuant 

to Rule 60(b)(6) of the West Virginia Rules of Civil Procedure.5 Additionally, FAF moved 

to limit the remedy to be awarded to the Petitioners. By order entered November 8, 2013, 

the circuit court determined that it had improperly relied upon this Court’s prior opinion in 

Peters v. County Commission of Wood County, 205 W. Va. 481, 519 S.E.2d 179 (1999), 

which was decided under the predecessor to W. Va. Code § 6-9A-4 and which statute did not 

contain exceptions 11 and 12 that are at issue in the case sub judice. In reconsidering its 

prior decision, the circuit court found that the Planning Commission had not violated the Act 

because W. Va. Code § 6-9A-4(b)(12) (1999) (Repl. Vol. 2010) permitted it to hold a closed 

executive session to confer with its attorney and to receive legal advice insofar as such 

communications are protected by the attorney-client privilege and are deemed to be 

confidential. The circuit court then determined that it need not decide whether the Planning 

Commission’s disclosure of the parties’ settlement at its October 2011 meeting had violated 

the requirement of W. Va. Code § 6-9A-4(b)(11) that settlement terms be disclosed in a 

“reasonable time after the settlement is concluded” because there existed a genuine issue of 

material fact as to when the subject settlement was concluded, i.e., at the Planning 

Commission’s meeting of July 26, 2011, or on August 3, 2011, when the circuit court 

approved the parties’ settlement, that rendered the court’s earlier grant of summary judgment 

on that issue improper. Finally, the circuit court concluded that the Planning Commission 

had not commenced its executive session on July 26, 2011, merely because its attorney was 

present as expressly prohibited by W. Va. Code § 6-9A-4(b)(11). Accordingly, the circuit 

court vacated its earlier decision granting partial summary judgment to the Petitioners. 

By supplemental order entered November 27, 2013, the circuit court conclusively 

determined that the Planning Commission also had not violated W. Va. Code § 6-9A5

Rule 60(b)(6) of the West Virginia Rules of Civil Procedure permits a court to 

“relieve a party . . . from a final judgment . . . for . . . any other reason justifying relief from 

the operation of the judgment.” 

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4(b)(11), which matter had been left unresolved by its prior order. In so deciding, the circuit 

court determined that the date of the settlement’s conclusion was rather inconsequential, and 

that, upon the court’s approval of the parties’ settlement, the settlement was entered into the 

public records of the circuit court. Thus, the court determined that the settlement terms were 

made a matter of public record within a “reasonable time” of its conclusion. Moreover, the 

circuit court noted that the Petitioners, by counsel, had received a copy of the settlement 

order upon its entry. Therefore, the circuit court explained, the terms of the settlement had 

been disclosed to the public well before the Planning Commission referenced the settlement 

at its October 11, 2011, meeting and its “official publication of the meeting minutes.” From 

these two orders, the Petitioners now appeal to this Court. 

On appeal to this Court, the Petitioners contend that the circuit court erred by vacating 

its prior partial summary judgment order. The court reached this decision in the context of 

considering and granting the Planning Commission’s Rule 60(b)(6) motion for relief from 

the court’s earlier ruling. This Court previously has held that “[a] motion to vacate a 

judgment made pursuant to Rule 60(b), W. Va. R.C.P., is addressed to the sound discretion 

of the court and the court’s ruling on such motion will not be disturbed on appeal unless there 

is a showing of an abuse of such discretion.” Syl. pt. 5, Toler v. Shelton, 157 W. Va. 778, 

204 S.E.2d 85 (1974). 

Before this Court, the Petitioners assert that the circuit court erred by finding there 

exists a genuine issue of material fact regarding the conclusion date of the settlement 

between the Planning Commission and FAF; determining that the Planning Commission had 

not violated the Act; and concluding that any violation of the Act in the case sub judice was 

de minimis and did not entitle the Petitioners to a remedy. 

The Petitioners first contend that, throughout these proceedings, they have always 

maintained that August 3, 2011, is the date upon which the Planning Commission and FAF 

concluded their settlement. The settlement conclusion date is referenced in W. Va. Code § 6­

9A-4(b)(11) as the date from which the “reasonable time” begins to run and as the time 

within which the Planning Commission was required to disclose the settlement’s terms. 

Thus, the Petitioners contend that the circuit court erred by concluding that there exists a 

genuine issue of material fact as to the settlement conclusion date because all parties agree 

that the settlement was concluded when the circuit court approved and entered the parties’ 

agreed settlement order on August 3, 2011, and not during the Planning Commission’s 

meeting on July 26, 2011. While the circuit court acknowledged a possible issue of fact 

regarding the settlement’s conclusion date, this factual issue did not form the basis of the 

circuit court’s initial decision to vacate its partial summary judgment order nor preclude it 

from ultimately determining whether a violation had occurred under W. Va. Code § 6-9A4(b)(11). Rather, the circuit court based its initial decision to vacate its partial summary 

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judgment order upon its perceived misplaced reliance on this Court’s prior decision in Peters 

v. County Commission of Wood County, 205 W. Va. 481, 519 S.E.2d 179 (1999). In this 

regard, the circuit court found that its reliance on Peters was misplaced because the prior 

version of the Act, upon which the Peters decision relied, does not contain exceptions 11 and 

12, which are set forth in the current version of the Act, W. Va. Code §§ 6-9A-4(b)(11-12), 

and which apply to the facts of this case. Moreover, in its subsequent order, the circuit court 

nevertheless determined that even if a factual dispute exists as to the date of the settlement’s 

conclusion, it did not preclude the circuit court from deciding whether the Planning 

Commission had violated the Act’s requirement that it disclose the settlement’s terms within 

a “reasonable time” of its conclusion. See W. Va. Code § 6-9A-4(b)(11). We agree with the 

circuit court’s ultimate conclusion that the issue of when, precisely, the parties consummated 

their settlement agreement does not preclude our determination of the fundamental issue 

presented by the case sub judice: whether the Planning Commission violated the Act. 

Therefore, we affirm the circuit court’s orders in this regard. 

The Petitioners next assign error to the circuit court’s rulings finding that the Planning 

Commission did not violate the Act. In support of their argument, the Petitioners assert that 

the Planning Commission committed three separate violations of the Act. Because the Act 

is a body of statutory law, our well-established rules of statutory construction will guide our 

consideration of these assigned errors. See generally Syl. pt. 1, Smith v. State Workmen’s 

Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object in construing 

a statute is to ascertain and give effect to the intent of the Legislature.”). See also Syl. pt. 2, 

State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“Where the language of a statute is 

clear and without ambiguity the plain meaning is to be accepted without resorting to the rules 

of interpretation.”); Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of 

Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and 

unambiguous and the legislative intent is plain, the statute should not be interpreted by the 

courts, and in such case it is the duty of the courts not to construe but to apply the statute.”). 

First, the Petitioners contend that the Planning Commission violated the Act’s agenda 

notice provision. The agenda notice requirement is set forth in W. Va. Code § 6-9A-3: 

Each governing body shall promulgate rules by which the date, time, 

place and agenda of all regularly scheduled meetings and the date, time, place 

and purpose of all special meetings are made available, in advance, to the 

public and news media, except in the event of an emergency requiring 

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immediate official action.[6] 

(Emphasis and footnote added). The Petitioners assert that the Planning Commission failed 

to include in its July 26, 2011, meeting agenda any reference to the FAF litigation or to the 

Planning Commission’s intention to discuss the same during that meeting. The July 26, 

2011, meeting agenda item corresponding to the Planning Commission’s consideration of 

FAF’s proposed settlement was titled “Reports from Legal Counsel and legal advice to PC.”7 

Considering the referenced agenda item together with the pertinent statutorylanguage, 

we agree with the Petitioners’ contention that the noticed agenda item was insufficient to 

notify the public that the Planning Commission intended to discuss the FAF litigation during 

its meeting of July 26, 2011. 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 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. 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 in the case sub judice 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 whatsoever that the ongoing FAF proceedings would be a topic of discussion at 

6

In 2013, the Legislature amended W. Va. Code § 6-9A-3, placing the pertinent 

agenda notice language in subsection (d). See W. Va. Code § 6-9A-3(d) (2013) (Supp. 

2014). However, because the events giving rise to the case sub judice occurred in 2011, we 

will apply the prior version of the operative statutory language to our decision of this case. 

7

The appendix record contains numerous Planning Commission meeting agendas 

which contain the same general entry: “Reports from Legal Counsel and legal advice to PC.” 

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the Planning Commission’s July 26, 2011, meeting. Because the agenda notice did not 

adequately inform the public of the specific items to be considered at the Planning 

Commission’s July 26, 2011, meeting, we find that the Planning Commission violated 

W. Va. Code § 6-9A-3 and reverse the circuit court’s contrary ruling. 

The Petitioners next contend that the Planning Commission did not properlyannounce 

the authorization for its executive session as required by W. Va. Code § 6-9A-4(a) (1999) 

(Repl. Vol. 2010). W. Va. Code § 6-9A-4(a) details the procedure for convening an 

executive session: 

The governing body of a public agency may hold an executive session 

during a regular, special or emergency meeting, in accordance with the 

provisions of this section. During the open portion of the meeting, prior to 

convening an executive session, the presiding officer of the governing body 

shall identify the authorization under this section for holding the executive 

session and present it to the governing body and to the general public, but no 

decision may be made in the executive session. 

(Emphasis added). W. Va. Code § 6-9A-4(b) (1999) (Repl. Vol. 2010) further directs “[a]n 

executive session may be held only upon a majority affirmative vote of the members present 

of the governing body of a public agency. 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[.]” The exceptions set forth in W. Va. Code §§ 6-9A-4(b)(11-12) are within the 

“following actions” referenced by W. Va. Code § 6-9A-4(b). During the Planning 

Commission’s July26, 2011, meeting, Commissioner “Mr. Smith moved to go into executive 

session to discuss legal matters.” The motion was seconded and unanimously approved. 

W. Va. Code § 6-9A-4(b)(12) allows an executive session to be held “[t]o discuss any 

matter which . . . is rendered confidential.” Thus, conferring with counsel “to discuss legal 

matters” would be included within the confidential matters contemplated by W. Va. Code 

§ 6-9A-4(b)(12). Therefore, the explanation for the Planning Commission’s decision to hold 

an executive session was properly communicated during the open public meeting, and, while 

the corresponding statutory section was not cited, the motion accurately identified the 

statutorily-authorized reason for convening an executive session: to discuss legal matters. 

When coupled with the agenda item under which this motion was made, which concerned 

reports from the Planning Commission’s counsel and advice therefrom, it is clear that the 

intended purpose of the executive session was to discuss legal matters with the Planning 

Commission’s counsel that are protected bythe attorney-client privilege and that come within 

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the purview of W. Va. Code § 6-9A-4(b)(12). Accordingly, we affirm the circuit court’s 

conclusion that the Planning Commission did not violate this portion of the Act. 

The third alleged violation of the Act raised bythe Petitioners asserts that the Planning 

Commission violated the Act by not reporting the settlement’s terms within a “reasonable 

time” of its conclusion as required by W. Va. Code § 6-9A-4(b)(11). Pursuant to the relevant 

portion of W. Va. Code § 6-9A-4(b)(11), “[i]f the public agency has approved or considered 

a settlement in closed session, and the terms of the settlement allow disclosure, the terms of 

that settlement shall be reported by the public agency and entered into its minutes within a 

reasonable time after the settlement is concluded.” (Emphasis added). In concluding that 

the Planning Commission had complied with this disclosure requirement, the circuit court 

determined that the inclusion of the settlement’s terms in the public record of the court, when 

the court entered the agreed settlement order on August 3, 2011, satisfied the Planning 

Commission’s obligation to disclose such terms. The Petitioners argue that such disclosure 

does not fulfill the statutory requirements. We agree. 

Pursuant to the plain language of W. Va. Code § 6-9A-4(b)(11), a public body 

entering into a non-confidential settlement must (1) report the settlement’s terms and (2) 

include the settlement’s terms in its minutes. All of the parties agree that the terms of the 

settlement entered into by the Planning Commission and FAF were not confidential. While 

the Planning Commission referenced the settlement at its meeting of October 11, 2011, and 

indicated that it would attach the final settlement to the minutes of that meeting, it has yet to 

do so. Specifically, the October 11, 2011, meeting minutes reflect that “Ms. Grove [counsel 

for the Planning Commission] stated that the order discussed at the July 26, 2011 Planning 

Commission meeting had been signed and should be included in the minutes. (Full text of 

the order is attached).” The referenced order presumably is the counteroffer proposed by the 

Planning Commission which ultimately became the agreed settlement order entered by the 

circuit court. Despite this language indicating that a document would be attached to the 

Planning Commission’s October 11, 2011, meeting minutes, such minutes, as they appear on 

the Planning Commission’s website, do not contain the terms of the parties’ settlement nor 

do they have any attachments containing the settlement’s terms. While the Planning 

Commission has placed on its website numerous documents entitled “PC Packets,” the packet 

that pertains to the October 11, 2011, meeting, which does contain the settlement’s terms, 

also includes the agenda of the October 11, 2011, meeting and the minutes from the previous 

month’s meeting that were approved at the October 11, 2011, meeting. The subsequent 

month’s packet, referencing the Planning Commission’s November 8, 2011, meeting, 

contains both the October 11, 2011, minutes and the parties’ agreed settlement order, but its 

description as a “packet” for the November 8, 2011, meeting makes it virtually impossible 

to ascertain that it actually contains the meeting minutes for the October 11, 2011, meeting 

with the referenced attachments. 

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It is apparent, then, that the Planning Commission has, in fact, disclosed the terms of 

the parties’ settlement. However, we do not agree with the circuit court’s decision finding 

no violation of the disclosure requirements of W. Va. Code § 6-9A-4(b)(11). This statutory 

language very simply and explicitly requires that “the terms of that settlement shall be 

reported by the public agency and entered into its minutes within a reasonable time after the 

settlement is concluded.” (Emphasis added). This statutory language does not contemplate 

the disclosure of settlement terms in any other type of document, be it a meeting agenda, 

press release, or compilation of papers considered at the disclosure meeting. Rather, the 

statute expressly requires that the public body “enter [the settlement terms] into its minutes.” 

(Emphasis added). A review of the Planning Commission’s minutes for its meeting of 

October 11, 2011, standing alone, reveals that while the settlement is referenced in general 

terms therein, and is required to be attached thereto, the minutes contain no attachments or 

language detailing the settlement’s terms. Accordingly, we find that the Planning 

Commission has violated the reporting requirements set forth in W. Va. Code § 6-9A4(b)(11), and we reverse the circuit court’s contrary ruling. 

Although we have found two violations of the Act, the violations do not necessarily 

require that the actions taken at the July 26, 2011, meeting be invalidated. The remedies 

provided in W. Va. Code §§ 6-9A-3, 6-9A-6 (1999) (Repl. Vol. 2010),8 and 6-9A-7 (1999) 

(Repl. Vol. 2010)9 are left to the discretion of the circuit court. Moreover, as we explained 

in McComas v. Board of Education of Fayette County, 197 W. Va. 188, 475 S.E.2d 280 

(1996), “[a] finding that a violation [of the Open Governmental Proceedings Act] occurred 

. . . does not necessarily require invalidation of all actions taken during or following from the 

wrongfully held . . . meeting.” 197 W. Va. at 201, 475 S.E.2d at 293.10 

For the foregoing reasons, we affirm, in part, and reverse, in part, the November 8, 

2013, and November 27, 2013, orders of the Circuit Court of Jefferson County, and remand 

this case to the circuit court for further proceedings to determine the remedy, if any, the 

circuit court may deem appropriate under the facts and circumstances of this case. 

8

W. Va. Code § 6-9A-6 (1999) (Repl. Vol. 2010) provides remedies for violations of 

the Act. 

9

W. Va. Code § 6-9A-7 (1999) (Repl. Vol. 2010) establishes criminal penalties for 

violations of the Act, as well as allowing for an award of fees and expenses to a prevailing 

party in a civil action alleging violations of the Act. 

10While W. Va. Code §§ 6-9A-3, 6-9A-6, and 6-9A-7 were amended subsequent to 

McComas, the amendments did not impact the permissive and discretionary nature of the 

remedies provided for therein. 

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Affirmed, in part; Reversed, in part; and Remanded. 

ISSUED: February 26, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

CONCURRING AND WRITING SEPARATELY: 

Justice Brent D. Benjamin 

DISSENTING AND WRITING SEPARATELY: 

Justice Robin Jean Davis 

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Benjamin, Justice, concurring: 

I completely concur with the majority decision. I write separately to urge the 

Legislature to amend what I consider to be a troubling provision of the State’s Open 

Governmental Proceedings Act. 

As the majority recognizes, W. Va. Code § 6-9A-4(b)(11) permits a public 

agency to convene a closed session to consider and even approve a settlement of pending 

litigation, and the terms of the settlement then must be reported within “a reasonable time.” 

This provision appears to me to be at odds with the policy underlying the Open 

Governmental Proceedings Act which recognizes that it is “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.” W. Va. Code § 6-9A-1 (1999). Of course, the government has 

a legitimate interest in closing a meeting on certain occasions, and the Legislature has 

attempted to balance the government’s interests in doing so with the public’s right “to 

participate in a meaningful manner in public agency decisionmaking” in fashioning the 

provisions of the Act. Id. However, I can discern no legitimate governmental interest in 

permitting public agencies to vote on the terms of non-confidential legal settlements in closed 

meetings. 

For this reason, I encourage the Legislature to amend W. Va. Code § 6-9A4(11) to provide that while a public agency may go into closed session to discuss the terms 

of a settlement, the public agency must in most cases disclose and vote on the settlement 

terms in an open meeting. Accordingly, I concur to the decision in this case. 

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Davis, Justice, dissenting: 

In 2004, Far Away Farm (“FAF”) first obtained permission to develop its property 

into a residential subdivision. Despite its best efforts to comply with the governing zoning 

ordinances, FAF has been stymied at every stage of the process by citizens who oppose the 

development and the governmental bodies they have elected. Even rulings by this Court1 and 

the United States Supreme Court2 have not dissuaded the nay sayers’ unrelenting campaign 

of harassment with the intent of forestalling FAF’s development plans. For eleven years, 

FAF patiently has waited for the seemingly endless litigation to cease, finally offering 

concessions to the Jefferson County Planning Commission (“Planning Commission”) in an 

attempt to attain the temporal extensions granted to it by the Legislature3 but which the 

Planning Commission vehementlyhad refused to recognize. Yet, through no fault of its own, 

FAF’s development project once again has been relegated to the shadows while the perpetual 

litigation lingers on: this time, as a result of the majority’s decision to defer to the circuit 

court’s final resolution of this case, FAF, who had no power over the Planning Commission’s 

compliance with the provisions of the West Virginia Open Governmental Proceedings Act, 

W. Va. Code § 6-9A-1 et seq. (“the Act”), may nevertheless be forced to re-negotiate with 

the Planning Commission to achieve the deadline extensions to which it is statutorilyentitled. 

I disagree with the majority’s decision to punish FAF, the innocent bystander in the case sub 

judice, by forcing it to expend even more time and resources in the pursuit of its most basic 

right to develop its property as permitted by the governing zoning law and the prior decision 

1

See Far Away Farm, LLC v. Jefferson Cnty. Bd. of Zoning Appeals, 222 W. Va. 252, 

664 S.E.2d 137 (2008). 

2

See Dunleavy v. Far Away Farm, LLC, 555 U.S. 1012, 129 S. Ct. 573, 172 L. Ed. 2d 

431 (2008) (denying certiorari). 

3

See generally W. Va. Code § 8A-5-12(f) (2010) (Repl. Vol. 2012). See also 

Jefferson Utils., Inc. v. Jefferson Cnty. Bd. of Zoning Appeals, 218 W. Va. 436, 450, 624 

S.E.2d 873, 887 (2005) (directing circuit court “to enter an order approving the reissuance 

of the subject permits and adjust, where necessary, any time deadlines established in the 

Ordinance that may have passed during the pendency of this appeal so that the parties are not 

penalized for pursuing their statutory rights of appeal”). 

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of this Court recognizing the same.4 I further disagree with the majority’s decision to intrude 

upon the fundamental right of a public body to confer with its counsel and to erode the 

associated attorney-client privilege inherent in such confidential communication. 

I. Adequacy of Agenda Notice 

The majority first concludes that the Planning Commission failed to provide advance 

notice of its agenda for its July 26, 2011, meeting because, in the majority’s estimation, the 

Planning Commission’s agenda did not adequately describe the topics to be covered under 

the agenda item, “Reports from Legal Counsel and legal advice to P[lanning]C[ommission].” 

See W. Va. Code § 6-9A-3 (1999) (Repl. Vol. 2010).5 While I appreciate the majority’s 

concern that the Planning Commission should have more specifically mentioned FAF and 

the pending litigation in its meeting agenda, I nevertheless agree with the circuit court’s 

conclusion that there was no violation of the meeting notice provision in this case. Pursuant 

to W. Va. Code § 6-9A-4(b)(12) (1999) (Repl. Vol. 2010), the Planning Commission was 

permitted to confer with its attorney during a closed, executive session. See W. Va. Code 

§ 6-9A-4(b)(12) (permitting closed executive session “[t]o discuss any matter which, by 

express provision of federal law or state statute or rule of court is rendered confidential, or 

which is not considered a public record within the meaning of the Freedom of Information 

Act as set forth in article one [§§ 29B-1-1 et seq.], chapter twenty-nine-b of this code.”). See 

also W. Va. R. Prof’l Conduct 1.6(a) (“A lawyer shall not reveal information relating to the 

representation of a client unless the client consents after consultation.”).6 

Moreover, W. Va. Code § 6-9A-4(b)(11) (1999) (Repl. Vol. 2010) contemplates that 

settlements negotiated by a public body are not subject to disclosure until after such 

4

See Far Away Farm, LLC v. Jefferson Cnty. Bd. of Zoning Appeals, 222 W. Va. 252, 

664 S.E.2d 137 (2008). 

5

To maintain consistency with the majority’s decision, I, too, will rely upon the 

version of W. Va. Code § 6-9A-3 that was in effect at the time of the events giving rise to 

the instant proceeding. Compare W. Va. Code § 6-9A-3 (1999) (Repl. Vol. 2010) with 

W. Va. Code § 6-9A-3(d) (2013) (Supp. 2014). 

6

The West Virginia Rules of Professional Conduct were amended effective January 

1, 2015. Because the events at issue herein occurred prior to the effective date of these 

amendments, I will cite to the version of the Rules that was operative at that time. However, 

the amended language of Rule 1.6(a) also contemplates the confidentiality of an attorneyclient relationship. See W. Va. R. Prof’l Conduct 1.6(a) (2015) (“A lawyer shall not reveal 

information relating to representation of a client unless the client gives informed consent 

. . . .”). 

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settlements have been concluded. See W. Va. Code § 6-9A-4(b)(11) (“If the public agency 

has approved or considered a settlement in closed session, and the terms of the settlement 

allow disclosure, the terms of that settlement shall be reported by the public agency and 

entered into its minutes within a reasonable time after the settlement is concluded.” 

(emphasis added)). Thus, to the extent that the discussions pertaining to the pending 

litigation with FAF and the settlement, itself, were protected both by the attorney-client 

privilege and the Act’s provisions safeguarding settlement negotiations, inclusion of detailed 

information on the meeting agenda pertaining thereto would contravene the express 

exemptions allowed by W. Va. Code §§ 6-9A-4(b)(11-12), which permit both the 

contemplation of pending legal matters with counsel and their resolution through settlement 

in a closed, executive session. Accordingly, the majority should have affirmed the circuit 

court’s ruling finding no violation of the Act’s agenda notice requirement under the facts of 

this case. 

II. The Majority’s Failure to Determine a Remedy Deprives FAF of Finality 

While I applaud the majority’s decision to leave intact the parties’ hard fought 

negotiated settlement, I am deeply disappointed that my brethren have decided to prolong 

FAF’s agony by not settling the question of a remedy in this tribunal but, rather, remanding 

the case to the circuit court for even more litigation to determine whether the Planning 

Commission’s perceived transgression deserves to be punished. As I mentioned earlier in 

this separate opinion, FAF has been trying, for eleven years, to develop its property and has 

been thwarted at every step by unrelenting litigation instigated by the Petitioners and the 

Planning Commission. At this juncture, there still is no end in sight to the parade of FAF 

legal proceedings because the majority has ceded its authority to fashion a remedy and 

directed the circuit court to conduct “further proceedings to determine the remedy, if any, the 

circuit court may deem appropriate under the facts and circumstances of this case.” And, 

despite the majority’s laudable efforts to refrain from annulling the Planning Commission’s 

decision to settle stemming from its allegedly improperly noticed meeting of July 26, 2011, 

such a sanction is still a very real and distinct possibility authorized by the statutes designed 

to remedy violations of the Act. In its haste to remand this case for the circuit court to render 

the final verdict, the majority neglects to acknowledge that both W. Va. Code § 6-9A-3 and 

W. Va. Code § 6-9A-6 (1999) (Repl. Vol. 2010) authorize the annulment of a decision that 

has been made in violation of the Act. See W. Va. Code § 6-9A-3 (“Upon petition by any 

adversely affected party any court of competent jurisdiction may invalidate any action taken 

at any meeting for which notice did not comply with the requirements of this section.” 

(emphasis added)); W. Va. Code § 6-9A-6 (“The court is empowered to compel compliance 

or enjoin noncompliance with the provisions of this article and to annul a decision made in 

violation of this article.” (emphasis added)). 

Insofar as the majorityis convinced that the Planning Commission made its settlement 

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decision in violation of the Act’s agenda notice provisions, the parties’ agreed settlement 

remains at risk of annulment if the circuit court determines that that is the remedy befitting 

the Planning Commission’s supposed violation of the Act. Imposition of such a remedy is 

undeniably harsh and would unfairly punish FAF, who, as a mere bystander to these 

proceedings, has had no control over the Planning Commission’s actions in complying with 

or violating the Act’s provisions. I only hope that the circuit court, who has had numerous 

opportunities to interact with the parties to these proceedings, appreciates the consequences 

of its actions in fashioning a remedy, if it deems the circumstances of this case even warrant 

reproach. In considering this case on remand, I urge the circuit court to be cognizant of 

FAF’s role in these proceedings as an innocent intervenor who neither had a duty to comply 

with the Act’s requirements nor an obligation to compel the Planning Commission’s 

adherence thereto. 

For the foregoing reasons, I resolutely dissent from the majority’s decision in this 

case. 

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