Appalachian Power Co. v. Public Service Commission

• Decision Date: 03 April 1979
• Docket Number: No. 14331,14331
• Court: West Virginia Supreme Court
• Parties: APPALACHIAN POWER COMPANY, a corp. v. PUBLIC SERVICE COMMISSION et al.

Page 377

253 S.E.2d 377

162 W.Va. 839

APPALACHIAN POWER COMPANY, a corp. v. PUBLIC SERVICE COMMISSION et al.

No. 14331.

Supreme Court of Appeals of West Virginia.

April 3, 1979.

Syllabus by the Court

1. The West Virginia Open Governmental Proceedings Act, Code § 6-9A-1, Et seq., applies to Public Service Commission hearings only when two or more commissioners convene and conduct the hearing.

2. The West Virginia Open Governmental Proceedings Act, Code § 6-9A-1, Et seq., does not apply to consultations of Public Service Commissioners with commission staff members, deliberations of commissioners, or the process of individual commissioners making a decision.

3. The West Virginia Open Governmental Proceedings Act, Code § 6-9A-1, Et seq., does not apply to assemblages of the Public Service Commissioners held for the purposes of discussing their individual decisions, concurring and rendering a final decision or judgment.

C. Terry Owen and William H. Roberts, Public Service Commission, Charleston, for appellants.

Love, Wise, Robinson & Woodroe, Charles R. McElwee, David M. Flannery, Charleston, for appellee.

McGRAW, Justice:

In this case we are called upon to decide if the West Virginia Open Governmental Proceedings Act, "The Sunshine Act," ¹ W.Va.Code § 6-9A-1, Et seq., has any applicability to the various proceedings of the Public Service Commission of West Virginia. We hold that the Act applies to Public Service Commission hearings when those hearings are convened and conducted by two or more commissioners. We hold that the Act does not apply to the other activities or assemblages of the Commission. We grant appellant's motion to reverse the judgment below.

In September, 1977, the appellee, APCO, filed with the Public Service Commission a tariff requesting increased rates and charges for electric service. The case was designated as P.S.C. Case No. 9091, and beginning on January 16, 1978, hearings were held to hear protestants, receive evidence and develop a record. Prior to hearings set for July 10, 1978, the company moved the Commission to suspend further hearings until such time as it was determined whether the Act applied to the Commission's proceedings in Case No. 9091. The motion was denied. Hearings were held on July 10, 11 and 12, 1978. On July 13th, pursuant to W.Va.Code § 55-13-1 Et seq., the company filed a declaratory judgment action in the Circuit Court of Kanawha County.

In the complaint the company contended that all assemblages of the P.S.C. held after July 10, 1978, in Case No. 9091 were subject to the Act's requirements. The company further contended the Commission's actions in Case No. 9091, including the final decision, were voidable under § 6 of the Act because the Commission had failed to promulgate rules by which notice of the time and place of all gatherings were made available in advance to the public, and had failed to prepare written minutes of all gatherings. The complaint asked that the court adjudge that all assemblages of Commissioners McDonald, Bromley and Casto held to receive evidence, hear oral argument, deliberate toward a decision, confer with staff, make a decision, or for any other purpose, were subject to the requirements of the Act. The complaint further asked that the court find that the defendants had violated the Act, and asked the court to find that actions taken in violation of the Act may be voidable.

For their answer, the Commission declared that the Act was not applicable to their activities. The parties entered into a stipulation of facts. The case was submitted on briefs, without oral argument.

On October 18, 1978, Judge Robert K. Smith issued a Memorandum of Opinion. In that memorandum the court held that the Act applied to the Commission, and any meetings of the Commissioners held on or after July 10, 1978 in connection with Case No. 9091 were in violation of the Act. On October 30, 1978, a judgment order reflecting the substance of the Memorandum of Opinion was entered. The Commission's motion for a stay of effectiveness of the order was denied. On October 31, 1978, this Court granted the Commission's petition for an appeal and stayed the order of the circuit court pending a decision in this Court. On November 3, 1978, this Court granted the Commission's motion for leave to move to reverse and modify the judgment below, and on November 21, 1978, the motion to reverse was argued and the case submitted for decision.

Appellants' brief sets forth twelve assignments of error, the sum and substance of which are that the trial court misconstrued the Act's pertinent provisions, and accordingly, was incorrect in finding that the Act applied to the P.S.C.

The sole question this case presents is: To which, if any, of the Commission's various types of assemblages does the Sunshine Act apply?

The stipulation entered into below by the parties ² indicates that during a rate case such as the instant one, four types of assemblages are ordinarily held. These are as the parties denominate them: (a) hearings, (b) conferences with staff, (c) deliberating on the case and, (d) making a final decision in the case.

We do not accept the parties' characterizations of the four types of assemblages. Two of the categories which purport to be separate and distinct are deliberation and making a decision. Deliberation and making a decision describe the thought process and its culmination in a decision. In the abstract these terms may be defined as separate and distinct. In reality they are not so easily compartmentalized. Deliberation and making a decision often overlap one another and are functionally indistinguishable. It may be impossible to identify some arbitrary point in a thought process at which deliberation ends and making a decision begins. The two may exist concurrently; they are not mutually exclusive; and they frequently describe the same process. Accordingly, attempts at labeling and categorization often lead not to enlightenment but only to the illusion of enlightenment, and, sometimes to obfuscation.

We find that these artificial categories and their inherent limitations are unduly restrictive of our attempts to arrive at a proper construction and application of the Act's pertinent provisions. Accordingly, we reject them.

Just as it is difficult, if not impossible to distinguish between deliberation and making a decision, similar problems arise with respect to categorizing staff consultations separately. Consultations with staff, deliberation and making a decision are steps in a Process. For our purposes they are not separate and distinct occurrences. Consultations, deliberations and making a decision are elements in a continuum. To attempt to separate this continuum into contrived components obstructs rather than facilitates interpretation of the Act. We do distinguish between the process of making a decision which is a part of this continuum and decision as the term represents the judgment reached as the end result of the continuum.

For purposes of this opinion, we perceive the Commission's activities as follows: The hearing is a separate category, an event complete as to itself with readily recognizable characteristics of time, place and function. Consultations, deliberation and the process of making a decision are part of a continuum leading to the articulation of a final judgment or decision and will be dealt with as such. Assemblages at which the Commissioners meet together, discuss their separate decisions reached as the end result of the continuum, concur and articulate or render a final decision or judgment are a separate category and will be considered accordingly. We denominate such assemblages as adjudicatory sessions.

The initial inquiry is which, if any, of these activities, processes or assemblages fall within the Act's definition of a meeting? Section 2(4) of the Act contains the following definition of meeting:

"Meeting" means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter, . . .

We believe this language properly construed defines meeting to mean a convening of a governing body of a public body if the convening is for the purpose of making a decision or deliberating toward a decision, and if some statute or rule requires a quorum as a prerequisite to convening. We arrive at this construction based upon the belief that the dependent clause "for which a quorum is required . . ." modifies the verbal phrase "the convening." The sentence thus construed indicates to the reader the particular characteristics a convening must possess to be a "meeting." Such a construction provides the clause in question with a meaningful function in the sentence, and adds significantly to the clarity of the definition as a whole. This construction is reasonable, logical and grammatically correct.

Reading W.Va.Code § 6-9A-2(4) In pari materia with W.Va.Code § 6-9A-5 further persuades us that the foregoing construction is the correct one. In W.Va.Code- § 6-9A-5 its directed that a governing body provide for the preparation of written minutes for all Meetings. Those minutes shall include Inter alia : the name of each member of the governing body present; all motions, proposals, resolutions, orders, ordinances and measures proposed and their disposition; and the results of all votes. The requirements of this section indicate in the clearest possible terms that Meetings as the Act defines them will have members of the governing body present, and will involve the transaction of business. This is consistent with our construction of the Act's definition of meeting and entirely inconsistent with appellee's construction.

In appellee's construction the clause "for which a quorum is required . . ." operates to modify the words "public body." Appellee bases this construction upon a single rule of statutory construction. ³

Notwithstanding the fact that ...