As we all know, a county board of education is subject to the West Virginia Governmental Open Proceedings Act (the Act). What follows are some common questions our Education Law Practice Group frequently sees.
What is a Meeting? A “meeting” is a quorum of board members (3 or more), who are present and discussing issues related to official matters or issues of official interest to the school system. If the gathering is being held in order to make a decision or deliberate towards a decision, it’s a meeting subject to the Act. Not all conversations involving a quorum of board members are considered a meeting. Elected officials remain free to meet with each other, their constituents, and other public office holders. However, any conversation among a quorum of the board members which involves deliberating toward a decision on a matter requiring official action must be deferred until the matter can be placed on a meeting agenda and discussed during an open meeting. Don’t forget about alternate forms of communication. The Ethics Commission has cautioned that written communications, including electronic mail or E-mail, should not be used to avoid public discussions that would ordinarily be expected to take place in the context of a public meeting. Board members may exchange e-mail communications with the superintendent and other board members regarding logistical matters. Exchange of e-mails involving deliberation on merits of matter requiring official action is not permitted.
What is a Regular Meeting? It is a meeting of a county board of education at which the regular business of the public is conducted. For a county board, the regular meetings are usually set forth in policy as occurring on specific days each month.
What is a Special Meeting? It is a meeting of a county board of education other than a regular meeting or an emergency meeting.
What are the Notice Requirements of a Regular Meeting? A county board of education must follow “4 Commandments”:
- Has public notice of the meeting date and agenda been made available in advance of the meeting to the public and news media (three business days in advance of the meeting)?
- Does the notice include the date, time and place of the meeting?
- Was notice provided in accordance with the county board’s rules for giving notice of all regularly scheduled and special meetings [pursuant to West Virginia Code § 6-9A-3]?
- In calculating days, do not count the day of the meeting, weekend days or state or federal holidays.
What are the Notice Requirements of a Special Meeting? A county board of education must follow the same “4 Commandments” that apply to Regular Meetings. In addition, the notice must state the purpose for the meeting. Notice must be posted at least two business days in advance of the meeting.
How do I calculate “days” for notice purposes? Saturdays, Sundays, and legal holidays are not counted. For a Monday regular board meeting, posting the agenda before the close of business on the preceding Wednesday would comply with the requirements of the Act.
How is the agenda made available? Regular and Special Meetings require that the agenda be posted in a public place at the governing body’s central office. Copies of the agenda must be made available to the public to be picked up at the governing body’s central office during regular business hours.
What is required to be on the agenda? Regular and Special Meetings must give reasonable notice to the public of what issues will be discussed. Every matter requiring the governing body to take official action listed on the agenda.
What is the difference between a regular agenda and special agenda? The only major differences between regular and special meeting agendas are: regular meeting agendas must be posted three business days before the meeting and special meeting agendas must be posted at least two business days before the meeting.
Can I amend an agenda? Agendas may be amended up to two business days before the meeting to include items not known at the time the original agenda was prepared, and the amended agenda must be provided to the public and media in the same manner as the original agenda.
When can the board go into Executive Session? Executive sessions are governed by West Virginia Code § 6-9A-4.
Most common grounds for going into executive session are:
- To consider personnel matters
- Matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal of an employee
- To discuss matters that would violate a right of privacy if disclosed to the public
- To plan or consider an official investigation or matter relating to law enforcement
- To consider matters involve the purchase, sale or lease of property
- To decide upon disciplining, suspension or expulsion of any student.
How do you convene an Executive Session? A member of the governing body must make a motion to go into executive session. The motion must state in plain language the grounds for convening an executive session. For example, a member may state that he or she is moving to go into executive session based upon the personnel exception. It is not necessary to cite the specific code provision. A governing body may go into executive session to discuss only matters that appear on the meeting agenda.
Must the agenda state the County Board will go into Executive Session? No. In fact, a governing body may not decide in advance of a meeting that it will go into executive session. The agenda may indicate that it is anticipated that a matter may be discussed in executive session, but the governing body may only go into executive session by a majority vote of the members present.
The agenda item must be descriptive enough to put the public on notice of the nature of the matter being discussed regardless of whether it will be discussed in an open session or executive session.
For example, an agenda item to discuss pending litigation may read, “Discuss pending lawsuit of Smith v. Jones with legal counsel.” Once again, generic agenda items such as “Discuss pending litigation” are too vague to adequately put the public on notice as to the matter to be discussed.
Do minutes have to be taken in Executive Session? No, the Act grants governing bodies of public agencies discretion to determine whether minutes of executive sessions are taken. If a governing body decides to take minutes of an executive session, the minutes should contain the same information as required for portions of the meeting open to the public. For an employee subject to discipline, does his/her name have to appear on the agenda? No, in the case of a disciplinary matter, such as dismissal or suspension for cause, which may be discussed in executive session as provided in W. Va. Code § 6-9A-4(b), the meeting agenda provided the public may exclude the person’s name- unless the employee requests an open meeting. However, the Act requires, following any discussion in executive session, the name of the person being considered for discipline must be announced in open session before the board takes action to impose discipline.