BY: CAITY COYNE
The private nonprofit entrusted with allocating millions of state dollars earned from court settlements with opioid manufacturers and distributors may soon, by state code, be obligated to adhere to open meeting laws and the Freedom of Information Act.
On Thursday, members of the House Committee on Health and Human Resources unanimously advanced House Bill 4593, which would require the West Virginia First Foundation to operate as transparently as government bodies do. This would mean meetings for the foundation’s board of directors would be posted publicly with adequate notice, and all meetings would be open to the public.
Lawmakers have been eyeing such provisions since questions rose late last year about the organization’s commitment to transparency. In November, the First Foundation held its first meeting, which seemed initially planned to be held in private, without public notice. Only after media reports about the meeting were published did foundation members announce it somewhat publicly.
“There have been some hiccups, some communication and organization errors I think is the best way to explain those. Those were completely unintentional errors, and there was never any malintent on [the Foundation’s] part,” said Dr. Matthew Christiansen, the state health officer who also serves as vice chair of the First Foundation’s Board of Directors.
So far, the three meetings held by the First Foundation have been relatively public — albeit with little notice and long, closed executive sessions — and board members have urged patience as they learn the ropes of operating a nonprofit. The bylaws established by the board, however, do not include any transparency measures. The memorandum of understanding published by Attorney General Patrick Morrisey establishing the First Foundation reads that the organization and all its entities “shall operate in a transparent manner.” The document does not, however, detail what that means.
Even though it operates as a private, incorporated nonprofit organization, the First Foundation was created through Senate Bill 674 in 2023. Counsel for House Health said Thursday that because the organization “made itself a creature of code” through being created this way, the Legislature is able to have some authority in how it functions.
“If they stuck to operating just under the memorandum of understanding, then [the Legislature] wouldn’t have that authority, but they didn’t so we do,” counsel said.
The only way to end this authority, he continued, would be if the Legislature voted to repeal the entire section of code relating to the First Foundation.
The legislative efforts pushing codified transparency for the foundation comes after at least two localities passed resolutions urging its board to adopt the Open Meetings Act in its bylaws.
Del. Amy Summers, R-Taylor, who chairs the committee, said the bill came up after lawmakers statewide started hearing concerns from their constituents about how money would be allocated by the First Foundation.
“They were concerned and, quite honestly, so were we,” Summers said.
All funds dispersed by the foundation are meant to be for programs and initiatives that respond to the ongoing drug and overdose epidemic in the state. While the organization’s memorandum of understanding outlines approved uses, they are broad ranging. A portion of the expected $1 billion in settlement funds has also gone directly to counties and municipalities that participated in the opioid litigation, and the First Foundation has no oversight authority for those dollars.
So far, no disbursements have been made by the First Foundation and several logistic measures — including hiring an executive director, appointing an expert panel and procuring companies for banking and investment services — need to be completed before any allocations can be made.
While members on the House Health committee unanimously approved the bill to bring transparency measures for the First Foundation with no discussion, there were questions from lawmakers regarding a bill that, in its original form, would have taken transparency away from a joint legislative committee.
HB 4595, if it becomes law, would allow the Legislative Oversight Committee on Health and Human Resources Accountability to enter into confidential executive sessions when reviewing certain investigations or interviewing witnesses.
The originally filed bill — which was broad in its language allowing for confidential hearings closed to the public and media — was replaced with a strike and insert amendment during Thursday’s committee. The new language is more narrow, and only allows for private proceedings when they include confidential or privileged information that would otherwise not be publicly available.
“We didn’t intend for this to be misused,” said Del. Heather Tully, R-Nicholas, who shared that the legislation was her idea.
“That is why we did the strike and insert — we [considered those concerns] and we didn’t want it to be abused at all,” Summers said. “The goal is not to become less transparent that’s why we narrowed it down to certain cases so that couldn’t happen.”
Tully said she created the legislation following the death of an 8-year-old girl as a result of abuse and neglect. Teachers at the girl’s Nicholas County school, who made calls to Child Protective Services about the alleged abuse, criticized how CPS failed to respond before her death.
“It was very frustrating to me as a legislator to have constituents mention this case and not be able to get any details,” Tully said. “What you get from some of the DHHR and the legal staff is that, quite frankly, you get stonewalled.”
The bill was also a priority this year Summers after a high-profile abuse and neglect case in Kanawha County, where children were found locked in a shed without access to running water or a toilet. Health department records showed Child Protective Services was aware of the situation in August 2023 weeks before police found the children following a neighbor’s 911 call.
The state health department has been under fire for its CPS response and transparency issues.
The department is facing sanctions in an ongoing foster care class-action lawsuit after attorneys for children said the department purposely deleted emails that would be supposed to be evidence in the case.
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