Open Meetings and Quorum Violations
11.
Under the West Virginia Open Governmental Proceedings Act (OGMA), a
meeting held without a valid quorum lacks the jurisdiction to act,
rendering any decisions or votes legally defective and voidable.
12.
Vacant positions (including seats held by unsworn members) are not
calculated when determining the number of members needed to constitute a
legal quorum.
13. The OGMA requires agendas to be published at
least three business days before a regular meeting and two business days
before a special meeting to avoid procedural violations.
14.
Willful violations of the Open Meetings Act subject the governing body
to civil or criminal penalties, and courts may order the body to pay
attorney fees and expenses to successful challengers.
Contractual and Liability Law Violations
15. WV Code § 5A-3-62(a)(1) explicitly prohibits public contracts from
including terms that require the state or its subdivisions to "indemnify
or hold harmless any entity".
16. The JacMal Letter of Intent's
clause making the Solid Waste Authority (SWA) responsible for accidental
damage to the privately owned transfer station functions as an illegal
indemnity clause.
17. WV Code § 5A-3-62 prohibits public
contracts from containing terms that limit liability for direct damages
caused by third parties.
18. The SWA's agreement to a $200,000
reimbursement cap payable to a private developer if the project fails is
a prohibited penalty or liquidated damages clause under WV law.
19.
WV Code § 5A-3-62(a)(15) mandates that all state-related contracts must
allow the government the right to cancel for convenience with 30 days'
notice.
20. A 15-year fixed lease term without a 30-day
cancellation for convenience clause is fundamentally noncompliant with
WV public procurement law.
21. Prohibited contractual clauses
signed by West Virginia public entities in violation of § 5A-3-62 are
"void ab initio"—legally invalid and unenforceable from the exact moment
of execution.
22. WV Constitution Article X, Section 8 governs
the creation of public debt, prohibiting fiscal bodies from entering
into multi-year fixed financial obligations without a vote of the
citizens.
23. A multi-year public contract is unconstitutional in
WV unless it contains a "non-appropriation" or "fiscal funding" clause
allowing the government to terminate the agreement annually if funds are
not appropriated.
24. A 15-year lease-to-own agreement with a
mandatory final buyout of $1.1 million, lacking a non-appropriation
clause, illegally binds the public entity to an unconstitutional present
debt.
Procurement, Bidding, and Real Estate Violations
25. The Fairness Competitive Bidding Act (WV Code § 5-22-1) mandates
that all public construction projects exceeding $50,000 must be awarded
to the lowest qualified responsible bidder via public solicitation.
26.
Pre-selecting a vendor to design and build a transfer station without
opening the project to public competitive bids directly violates WV Code
§ 5-22-1.
27. The WV Design-Build Procurement Act (WV Code §
5-22A-1) requires public agencies to obtain explicit, prior approval
from the State Design-Build Board before pursuing a design-build
project.
28. The Design-Build Act mandates the selection of an
independent "performance criteria developer" who cannot be a member of
the design-build team.
29. WV Code § 7-3-3(a) strictly requires
that the disposal of county or district property be conducted through a
public auction or formal competitive bidding.
30. A negotiated
private sale of public landfill property directly to a private LLC (or
via a holding corporation) without an auction violates WV Code § 7-3-3.
31.
Retaining public title to a property solely as a "straw-man" owner to
shield a private developer’s profit-generating asset from real property
taxes violates the anti-evasion clause of WV Code § 11-3-9(b).
32.
Placing a restrictive covenant in a property deed that attempts to
waive a public entity's future right to exercise eminent domain is void
ab initio under the reserved powers doctrine.
Tax and Fee Law Violations
33. West Virginia solid
waste assessment fees are legally defined as service fees and cannot be
levied as ad valorem property taxes, which must be strictly proportional
to property value under WV Constitution Article X, Section 1.
34.
Imposing a flat-rate solid waste fee on unimproved, vacant land that
generates absolutely no waste functions as an unconstitutional tax
rather than a valid regulatory fee.
35. WV Code § 22C-4-10 limits
mandatory waste disposal requirements and fees strictly to persons
"occupying a residence or operating a business establishment".
36.
Under WV Code § 11A-1-8B, county commissions are prohibited from
placing solid waste fees on property tax tickets because SWAs are
independent state agencies, not direct county departments.
37.
The WV Solid Waste Management Act explicitly limits civil penalties for
violations of mandatory disposal regulations to $150 per year (WV Code § 22C-4-10).
38. Drafting a local regulation to levy a $150 per day penalty for solid waste violations acts ultra vires and violates the specific caps set by the state legislature.
Antitrust and Commerce Clause Violations
39. The
dormant Commerce Clause of the U.S. Constitution prohibits local
governments from enacting regulations that unduly burden, geographically
restrict, or discriminate against interstate or regional commerce.
40.
An exportation ban prohibiting municipal solid waste from leaving the
county violates the Dormant Commerce Clause and contradicts the WV
Legislature's explicit policy (WV Code § 22-15-1) committing to the
"free flow" of solid waste.
41. A mandatory "flow control"
ordinance that forces all county waste to a transfer station built and
owned by a private entity functions as an unconstitutional protectionist
monopoly under the Supreme Court's C&A Carbone precedent.
42.
Sections 1 and 2 of the Sherman Antitrust Act (15 U.S.C. §§ 1, 2)
prohibit contracts in restraint of trade and the willful acquisition or
maintenance of monopoly power.
43. Local governments lose Parker
state-action immunity from federal antitrust laws if their regulations
are not actively supervised by the state and serve to shield a specific
private company from competition.
44. While the Local Government
Antitrust Act (LGAA) shields public entities from damages, private
companies acting as co-conspirators to establish an illegal private
monopoly remain exposed to treble damages and attorney fees under the
Clayton Act.
Environmental and Waste Disposal Law Violations
45.
Under the federal Asbestos NESHAP rule and WVDEP regulations, it is
strictly prohibited to dispose of asbestos-containing materials (ACM) in
standard municipal or C&D landfills.
46. West Virginia
Asbestos Licensure Law (16-32) and the 64CSR63 licensing rule mandate
that any individual or firm performing asbestos abatement or remediation
must be licensed by the state.
47. WV Code § 22-15-10 prohibits
the creation of an "open dump" or the burying of solid waste on private
property without a properly issued Class D permit from the WVDEP.
48.
WV Code § 22-15-21 strictly prohibits the disposal of whole tires in
landfills, legally requiring them to be split, quartered, or shredded
before burial.
49. Federal EPA rules and WVDEP regulations
(33CSR1) make it illegal to crush or landfill white goods (appliances)
containing refrigerants without first certifying that the CFCs/HCFCs
have been safely evacuated.
50. It is a violation of the West
Virginia Voluntary Remediation and Redevelopment Act (VRRA) to use
untested fill dirt during a remediation project; all fill must be
chemically analyzed and certified by a Licensed Remediation Specialist
to meet "clean fill" standards.
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More
Here are 50 additional statements of fact detailing further violations, liabilities, and legal intricacies of West Virginia state law, United States law, and public governance principles, continuing from the previous list:
Ethics, Fiduciary Duty, and Conflicts of Interest
51. West Virginia Code § 6B-2-5(d) strictly prohibits public officials from having a financial interest in a public contract if they exercise direct authority or control over that contract.
52. The West Virginia Ethics Commission requires a formal "contract exemption" for any transaction where a public servant might benefit, which is rarely granted for non-competitive, multi-million dollar construction deals.
53. Agreeing to an "exclusivity clause" that explicitly prevents a public board from soliciting alternative proposals violates the members' fiduciary duty to seek the most economical options for citizens.
54. Utilizing a public economic development agency to temporarily hold a property deed as a "straw-man" to shield a private developer’s profit-generating asset from property taxes exposes the public entity to tax evasion liabilities.
Public Finance, Taxes, and Regulatory Fees
55. West Virginia Constitution Article X, Section 1 mandates that taxation be "equal and uniform"; applying a flat solid waste fee to all properties regardless of value violates ad valorem tax principles if the fee is classified as a tax.
56. To be legally classified as a "fee" rather than an unconstitutional tax, a mandatory charge must be used exclusively to defray regulatory costs or prevent health menaces, not to generate general government revenue.
57. Under U.S. Supreme Court precedent (Sheetz v. El Dorado County), government fees must reflect the "true cost" of the activity and maintain "rough proportionality" to the specific burden or benefit provided.
58. West Virginia Code § 11A-1-8B prohibits county commissions from placing solid waste fees on property tax tickets, because Solid Waste Authorities are independent state agencies, not county departments.
59. A public lease-purchase agreement lacking a "non-appropriation clause" operates legally as a disguised high-interest installment sale, violating constitutional debt limits.
60. The total nominal public expenditure of a multi-year lease, when not subject to annual fiscal cancellation rights, illegally binds future administrations and shifts democratic power intertemporally.
Open Meetings, Quorums, and Board Legitimacy
61. The failure of an elected or appointed official to take the required oath is legally categorized as a "failure to qualify," creating an automatic vacancy for that seat.
62. Vacant positions and unsworn members are strictly excluded from calculations when determining the number of members needed to establish a legal quorum.
63. If an unsworn member's physical presence is necessary to achieve a quorum, the gathering lacks the functional capacity to act, rendering all subsequent decisions and deliberations voidable.
64. Under W. Va. Code § 6-5-3, the "de facto officer doctrine" is a retrospective shield validating past acts of unsworn officials to protect public reliance, but it does not prospectively authorize unsworn individuals to vote.
65. A de jure (rightful) officer unlawfully kept out of office by an unsworn intruder retains the right to sue the intruder to recover the salary paid during the period of usurpation.
66. According to rulings by the West Virginia Ethics Commission, an abstention during a Solid Waste Authority vote must be counted as a "no" vote.
67. In a four-member active board, a 2-1 vote with one abstention constitutes a 2-2 tie, legally resulting in the failure of the motion.
68. General discussions among board members in a social, educational, or ceremonial setting do not constitute a "meeting" under the Open Governmental Proceedings Act, provided no official action is deliberated.
69. The Open Meetings Act requires meeting minutes to explicitly document all members present and absent, all motions proposed, and the results of all votes to legally verify that a quorum was present.
70. A governing body cannot enter a closed Executive Session to deliberate sensitive items without first holding a formal vote in an open session.
Competitive Bidding and Procurement Protocols
71. Utilizing architectural designs or equipment specifications drafted by a prospective bidder within a Request for Proposals (RFP) violates state purchasing rules against specification bias.
72. State regulations mandate independent cost estimates (ICE) prior to opening public bids; sealed bids that exceed this estimate by more than 10% generally trigger rejection and a re-bid.
73. Public bodies must enforce a strict "blackout period" prohibiting all off-the-record communication between officials and prospective bidders from the publication of an RFP until the final contract award
74. Every evaluator on a public selection committee is legally required to sign a Certification of Non-Conflict of Interest prior to reviewing vendor proposals.
75. W. Va. Code § 22C-4-23(11) allows solid waste authorities to bypass competitive bidding only for specialized professional services, such as hiring attorneys, engineers, and accountants.
76. A public entity cannot utilize the "sole source" or emergency exemption for standard steel-frame construction projects where numerous regional firms are capable of providing the facility.
State Regulatory Oversight and Grants
77. Under W. Va. Code § 24-2-1h, any mandatory "flow control" ordinance intended to force all county waste into one facility must be petitioned to and approved by the Public Service Commission (PSC).
78. Solid Waste Management Board (SWMB) Series 5 Rules dictate that state grant monies cannot be passed on to a third-party private developer or used for improvements on property not owned by the authority.
79. Because a private LLC retains ownership of a transfer station during a lease-to-own term, the public authority is strictly ineligible to use state infrastructure grant funding for the project.
80. W. Va. Code § 22-15-7 legally mandates that all commercial and public landfills provide one "Free Day" per month for residents to dispose of a truckload of household trash.
81. Administrative precedent dictates that the "Free Day" mandate applies exclusively to active landfills and does not legally extend to waste transfer stations.
82. The West Virginia DEP strictly regulates waste intake classifications; an authority bypassing these categories to accept commercial debris under residential labels risks operational penalties.
83. Properties remediated under the RISE WV program are bound by three-year covenants requiring owners to maintain the sites clear of debris, legally prohibiting any illegal dumping.
84. Under the Uniform Environmental Covenant Act (UECA), contaminated sites may leave low-level contaminants in place provided strict activity and use limitations are permanently recorded on the property deed.
Administrative Restraint and Extraordinary Writs
85. The Writ of Prohibition (W. Va. Code § 53-1-1) lies as a "matter of right" to immediately halt an inferior tribunal or board from usurping power or exceeding its legitimate jurisdiction.
86. Upon the filing of a verified complaint establishing a prima facie case of jurisdictional abuse, a judge may issue a "rule to show cause" to completely suspend a board’s proceedings.
87. The "Taxpayer Doctrine" grants citizens the legal standing to file class-action lawsuits to preserve public funds from spoliation and force local governments to adhere to due process.
88. The Writ of Quo Warranto (W. Va. Code § 53-2-1) is the exclusive legal remedy used to challenge the title to a public office and formally oust an unsworn usurper.
89. Under W. Va. Code § 6-6-7, a specialized "three-judge court" must be convened to rule on the removal of local county officials based on neglect of duty or official misconduct.
90. A private citizen initiating a Quo Warranto challenge must provide a financial security bond to cover the costs and expenses of the defendant if the legal challenge fails.
Antitrust, Immunities, and Liabilities
91. For a local government entity to claim Parker (State-Action) immunity, its anticompetitive conduct must be the foreseeable result of a clearly articulated state policy.
92. Under the Supreme Court's Midcal test, an arrangement that operates to shield a select private company from competition only receives antitrust immunity if it is actively supervised by the state.
93. Because the State of West Virginia does not actively supervise or approve the specific lease payments negotiated between private developers and a local SWA, a flow control ordinance protecting that lease lacks Parker immunity.
94. The Local Government Antitrust Act (LGAA) shields public authorities and officials from paying antitrust damages, but it does not prevent federal courts from issuing injunctions to halt illegal public actions.
95. The LGAA’s statutory damage shield does not apply to private co-conspirators; private companies conspiring in a monopoly remain fully exposed to treble damages under the Clayton Act.
96. A flow control mandate that benefits a privately-owned waste facility violates the Dormant Commerce Clause under the Supreme Court’s C&A Carbone precedent.
97. A local government cannot claim the "market participant" exception to antitrust laws when it utilizes its sovereign regulatory power to issue penalties that enforce a monopoly.
98. An official acting without taking the oath performs ultra vires acts, stripping them of the qualified immunity that protects public employees from personal lawsuits.
99. Unsworn officials can be held personally, jointly, and severally liable for defaults, especially if their lack of qualification invalidates the public entity's bonding or insurance coverage.
100. Any contract or deed intended to permanently waive a government body's sovereign power of eminent domain is an ultra vires act and is void ab initio as a matter of public policy.
Note: This is an AI product of the Salt Shaker Press and does not constitute legal advice.
