September 21, 2012 - Volume 32 Issue 23



By Howard E. Seufer Jr.

County boards of education frequently act upon recommendations made by their superintendents. May county boards act only in that fashion? May a proposal acted upon by a county board lawfully originate with a board member, without a superintendent’s recommendation or concurrence?

Except in instances (summarized below) in which the school laws forbid a board to take action that was not recommended by the superintendent (and except in counties in which the State Board of Education has intervened and limited the powers of the elected county board), school boards may lawfully consider and act upon motions originating with board members and without the superintendent’s approval.

The laws do not specify how business in general must originate in order to be acted upon by a school board. W. Va. Code § 18‑5‑4 states simply that “[a] majority of the members shall constitute the quorum necessary for the transaction of official business.”

Typically, school statutes that authorize county boards to take action in various areas do not require a superintendent’s recommendation or approval prior to action by the board. Many sections of law that grant powers to school boards contain no requirement that the county superintendent propose or endorse the action.

For example, W. Va. Code § 18‑5‑9, which requires boards to acquire school buildings and furnishings, provide for student health, and repair equipment does not specify that the superintendent must first recommend or approve of such board action. Nor does W. Va. Code § 18‑5‑13, a wide‑ranging statute that, among other things, authorizes county boards to control and manage all schools, regulate school funds, close and consolidate schools, provide transportation and purchase insurance.

A host of other school statutes likewise authorize or require board action without requiring that the county superintendent first initiate or recommend the decision, e.g., W. Va. Code §§ 18‑4‑10 (rejecting superintendent’s nominee to fill a vacant personnel position), 18‑5‑3 (electing board president), 18‑5‑4 (calling special meetings), 18‑5‑14 (policies to promote effectiveness), 18‑5‑15 (establishing the employment and instructional terms), 18‑5‑16 (allowing student attendance zones and inter‑county transfers), 18‑5‑19 (providing for night school and other public uses of school property), 18‑5‑19b (establishing adult education programs), 18‑5‑21 (establishing and maintaining dental clinics), 18‑5‑33 (fixing special salary schedules), 18‑5‑39 (establishing summer school), 18‑8‑1 (approving certain exemptions from compulsory attendance) and 18‑9B‑6 (submission of the budget). See also W. Va. Code §§ 6‑9A‑4 (going into executive session), 18‑4‑1 (election of superintendent) and 18‑4‑3 (removal and suspension of superintendent).

In contrast, a number of statutes do specify that the county board can act only with the superintendent’s concurrence. In our opinion, a county board cannot in such cases lawfully take action without the superintendent’s recommendation or assent.

Examples include W. Va. Code §§ 18‑2A‑5 (selection of textbooks and instructional materials); 18‑4‑8 (appointing clerical assistants); 18‑4‑10 (employing and assigning, transferring, suspending or promoting teachers and all other school employees; 18‑5‑32 (appointing assistant superintendents and general and special supervisors or directors of instruction and other educational activities); 18‑8‑1 (approving certain exemptions from compulsory attendance); 18‑8‑3 (employing a county director of school attendance and assistants); 18‑9‑6 (appointing a treasurer); 18A‑2‑1 (employing professional personnel, and removing “will and pleasure” deputy, associate or assistant superintendents); 18A‑2‑3 (employing substitute teachers); 18A‑2‑7 (assigning, transferring, promoting, demoting, suspending and recommending the dismissal of school personnel); and 18A‑2‑8a (renewing probationary personnel).

Likewise, a prior superintendent’s recommendation is required by W. Va. Code § 18A‑2‑9 (employing and assigning principals and assistant principals); 18A‑4‑4 (assigning teachers out of field); 18A‑4‑15 (assigning service personnel substitutes); 18A‑4‑16 (assigning extracurricular duties to professional and service personnel); 18A‑5‑1a (expelling students); 18A‑5‑4 (approving attendance of teachers at educational conventions, conferences, or other professional meetings on school days); 18A‑5‑4a (approving attendance of service personnel at educational conventions, conferences, or school service meetings on school days); and 18A‑5‑8 (approving overtime work by aides and the transfer of aides).

It is not crystal clear that in all cases a superintendent’s recommendation is required before a school board may lawfully suspend or dismiss a school employee for cause under W. Va. Code § 18A‑2‑8. For reasons having to do with the employee’s constitutional right to due process, we think the better view is that the superintendent’s recommendation is a necessary prerequisite in such instances.

Finally, there are some statutes that empower the county superintendent to act without school board approval or consent, such as W. Va. Code §§ 18‑4‑10 (executing State Board policies, temporarily closing schools, and acting in emergencies), 18‑4‑11 (calling conferences of teachers and principals), 18‑5‑25 (caring for all business documents), 18‑8‑1 (implementing some compulsory attendance exemptions), 18A‑3‑6 (recommending revocation of teacher certificates), 18A‑4‑7a (allowing successful applicant to assume professional position before the next semester), 18A‑5‑1a (commuting the minimum one year period of some student expulsions), and 18A‑5‑8 (allowing aides to transfer more than once in the same mid‑semester).