Legalities

February 10, 2017 - Volume 37 Issue 2

Legalities

By Howard Seufer, Jr., Esq. 

 

Question: What procedure should a board of education follow in order to go lawfully into executive session during a regular, special or emergency meeting?

Under West Virginia law, open school board meetings are the rule. Executive sessions are the exception.

Every meeting of a county board of education, from beginning to end, must be open to the public unless, in open session, the board follows a required procedure to go into executive (closed) session for one of the reasons listed in West Virginia’s Open Meetings Act.

The mandatory procedure is described in West Virginia Code § 6-9A-4, which is part of the Act:

“During the open portion of the meeting, prior to convening an executive session, the presiding officer of the governing body shall identify the authorization under this section for holding the executive session and present it to the governing body and to the general public, but no decision may be made in the executive session.

“An executive session may be held only upon a majority affirmative vote of the members present of the governing body of a public agency.”

In order to comply with those requirements, a board might, in open session, follow this script before entering executive session:

PROCEDURE TO BE FOLLOWED BY A SCHOOL BOARD
TO PROPERLY CONVENE AN EXECUTIVE SESSION

[Note: In place of ***, insert the applicable executive session justification from West Virginia Code § 6-9A-4, using at least the words of the justification as they appear in that law. The justifications appear below, after this script.]

BOARD MEMBER #1: “I movethat we go into executive session in order to ***.”

BOARD MEMBER #2: “I secondthe motion.”

BOARD PRESIDENT OR PRESIDING OFFICER:  “It hasbeen moved and seconded that we go into executive session in order to ***.  Is there any discussion?”

BOARD PRESIDENT OR PRESIDING OFFICER (following any discussion): “Are you ready for the question?” [Pause.] “The question is on the motion that we go into executivesession for ***.  All in favor, say yes.  All opposed, say no.”

(If the motion is adopted by a majority affirmative voteof the members present) BOARD PRESIDENT OR PRESIDING OFFICER (in a voice audible to all in attendance at the meeting): “The motion is adopted.  The Board will now go into executive session in order to ***.”

(If the motion is not adopted by a majority affirmation voteof the members present) BOARD PRESIDENT OR PRESIDING OFFICER:  “The motion fails.”

______________________________________________________

Justifications for Executive Session Under West Virginia Code § 6-9A-4

(1) To consider acts of war, threatened attack from a foreign power, civil insurrection or riot;

(2) To consider:

(A) Matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of a public officer or employee, or prospective public officer or employee unless the public officer or employee or prospective public officer or employee requests an open meeting; or

(B) For the purpose of conducting a hearing on a complaint, charge or grievance against a public officer or employee, unless the public officer or employee requests an open meeting. General personnel policy issues may not be discussed or considered in a closed meeting. Final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual shall be taken in an open meeting;

(3) To decide upon disciplining, suspension or expulsion of any student in any public school or public college or university, unless the student requests an open meeting;

(4) To issue, effect, deny, suspend or revoke a license, certificate or registration under the laws of this state or any political subdivision, unless the person seeking the license, certificate or registration or whose license, certificate or registration was denied, suspended or revoked requests an open meeting;

(5) To consider the physical or mental health of any person, unless the person requests an open meeting;

(6) To discuss any material the disclosure of which would constitute an unwarranted invasion of an individual's privacy such as any records, data, reports, recommendations or other personal material of any educational, training, social service, rehabilitation, welfare, housing, relocation, insurance and similar program or institution operated by a public agency pertaining to any specific individual admitted to or served by the institution or program, the individual's personal and family circumstances;

(7) To plan or consider an official investigation or matter relating to crime prevention or law enforcement;

(8) To develop security personnel or devices;

(9) To consider matters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving commercial competition, which if made public, might adversely affect the financial or other interest of the state or any political subdivision: Provided, That information relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings requirements of this article only until the commercial competition has been finalized and completed: Provided, however, That information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session;

(10) To avoid the premature disclosure of an honorary degree, scholarship, prize or similar award;

(11) Nothing in this article permits a public agency to close a meeting that otherwise would be open, merely because an agency attorney is a participant. If the public agency has approved or considered a settlement in closed session, and the terms of the settlement allow disclosure, the terms of that settlement shall be reported by the public agency and entered into its minutes within a reasonable time after the settlement is concluded;

(12) To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one, chapter twenty-nine-b of this code.

NOTE: The West Virginia Supreme Court of Appeals has ruled that there is one other justification for executive session. A public body may go into executive session for privileged communications between the public body and its attorney. Peters v. County Commission of Wood County, 205 W. Va. 481, 519 S.E.2d 179 (1999). 

Editor's Note: Seufer is a partner in the law firm Bowles Rice LLP. A member of Bowles Rice’s Education Practice Group, his office is located in Charleston.