In the summer of 2020, West Virginia University’s Board of Governors was planning how to reopen a campus in the middle of a pandemic. Over five meetings, the board went behind closed doors to talk about COVID-19, tuition, and even the coming athletic season. The Charleston Gazette-Mail sued, arguing that most of those talks belonged in public. On Oct. 14, 2026, DiPiero Simmons McGinley & Bastress, PLLC argued the newspaper’s appeal before the Supreme Court of Appeals of West Virginia.
The justices will decide how much a public board can discuss out of public view, and the answer will reach well past WVU. The same open meetings law covers county commissions, city councils, and school boards across the state. It’s the kind of case the firm’s Charleston civil rights attorneys take on, holding a public institution to the law it’s supposed to follow.
Here’s what the case is about, what DiPiero Simmons McGinley & Bastress, PLLC argued, and what comes next.
Overview of the West Virginia Open Government Case
The case is HD Media Company, LLC d/b/a Charleston Gazette-Mail v. West Virginia University Board of Governors, No. 24-412. It centers on five board meetings held between June 19 and Sept. 18, 2020. The board did not take any votes behind closed doors. But in executive sessions at those meetings, it discussed nine topics, including its pandemic response, budget planning, tuition and fees, capital projects, and a talk with the athletics director.
In April 2023, a Monongalia County circuit judge ruled for the board, finding only that the June 19 agenda gave the public too little notice and calling that violation technical. The state’s Intermediate Court of Appeals affirmed in June 2024. While it rejected the “technical” label, it found no reason to undo the board’s actions. Chief Judge Scarr dissented in part, and the newspaper appealed to the Supreme Court, where DiPiero Simmons McGinley & Bastress attorneys Lonnie C. Simmons and Robert M. Bastress III represented it.
The Legal Arguments Presented by DiPiero Simmons McGinley & Bastress
The firm’s main arguments come from two state laws, the Open Governmental Proceedings Act and the West Virginia Freedom of Information Act. The first fight is over an exception. The open meetings law lets a board close a session to talk about property deals, construction planning, investing public funds, “or matters involving commercial competition,” but only if going public might hurt the state’s financial or other interests.
WVU argued that during the pandemic, topics like tuition, the budget, and athletics fit that description, and both lower courts agreed. As the Court noted, the Board also asserted that discussions of social issues and racial unrest fell within the commercial competition exception. But Simmons argued that reading lets the exception negate the rule, since the exception is about matters involving public money, not the general competition among colleges for students. Chief Judge Scarr’s partial dissent raised the same worry, saying the lower courts’ approach could reach nearly any decision that might affect enrollment.
The second argument is about how the two laws connect. The open meetings law also allows a board to close a session for matters that aren’t public records under West Virginia’s FOIA laws. The lower courts read that to mean a board can privately discuss a document it could withhold as an internal memo. DiPiero Simmons McGinley & Bastress, PLLC argued that a record the state can withhold is still a public record, so it shouldn’t become a new reason to close a meeting.
The brief raises two more issues. It argues the board didn’t properly prove its attorney-client privilege claim, and that the notice violation should have earned the newspaper its attorney fees, which both lower courts denied after finding the board acted in good faith.
Potential Impacts on Open Meetings and Public Records in West Virginia
The open meetings statute itself says public agencies exist “for the singular purpose of representing citizens” and that they’re supposed to do their business in the open, with only a few clearly defined exceptions. Now the justices have to decide how wide those exceptions are and how much room a crisis like the pandemic gives to a board.
Let’s say the court sides with the newspaper. In that case, a county commission or school board would have a narrower path to closing a meeting over budget worries, and it would need a clear reason for each topic it takes private. If the court affirms, boards can cite this case the next time they move budget talks behind closed doors. That matters to reporters and to the parents at a school board meeting who wants to hear the budget debate, not just the vote.
The FOIA question matters for public records access in West Virginia, too. A ruling for the newspaper would keep the records law and the meetings law on separate tracks, so a board couldn’t close a meeting just because a document it’s discussing could be withheld.
Next Steps in the West Virginia Judicial Process
After the oral arguments on Oct. 14, the case is in the justices’ hands, and as with other West Virginia Supreme Court cases, there’s no set date for a decision. The newspaper has asked for a signed opinion, the kind that sets out new points of law, rather than a short memorandum decision. The court posts its decisions online, so the easiest way to follow this one is to check its opinions page for the case name.
Holding Public Boards to Their Own Rules
When a public board closes the door, the people outside have to take its word that the law allowed it, and this case will decide just how far that word goes. At DiPiero Simmons McGinley & Bastress, PLLC, our attorneys have taken on many institutions that violated people’s rights.
If a government body shut you out of a meeting that should have been public or violated your rights in another way, reach out to our firm for a free case evaluation.
