Legalities

April 7, 2017 - Volume 37 Issue 10

Legalities

By Howard Seufer, Jr., Esq.

Q: We know that county board of education meetings must comply with the Open Meetings Act. The Open Meetings Act, among other things, requires advance meeting notice to the public and news media, requires boards to publish and follow an agenda, entitles the public and news media to attend all meetings, limits the use of executive sessions, and requires that meeting minutes be available to the public. Must meetings of local school improvement councils, faculty senates and board-appointed committees also comply with the requirements of the Open Meetings Act?

A: In many instances, yes, per the West Virginia Ethics Commission’s Open Governmental Meetings Committee.

As required by law, the Open Meetings Committee, at the request of governing bodies and their members, issues written opinions on whether a proposed action violates the Open Meetings Act. Generally speaking, a governing body or member who takes action in good faith reliance on an Open Meetings Committee advisory opinion cannot later be found liable in a civil or criminal court action for violating the Open Meetings Act.

In the case of local school improvement council meetings, the Open Meetings Committee has issued Advisory Opinions Nos. 2000-13 and 2008-06. They advise that LSICs must comply with the provisions of the Open Meetings Act except as may otherwise be specified in the statutes that establish LSICs.

In the case of faculty senate meetings, the Committee concluded, in Open Meetings Advisory Opinion No. 2001-09, that a faculty senate must comply with the Open Meetings Act when the agenda includes any of the public matters for which a faculty senate must take official action, such as budgeting the expenditure of funds on academic supplies, materials and equipment; accepting and allocating grants; and developing plans for integrating special needs students into regular classrooms. In such instances, the public must be given notice of the time place, location and agenda of the meeting. The meeting must be open to the public while the faculty senate is dealing with such public matters.

However, the same Advisory Opinion takes the position that if the agenda for a faculty senate meeting contains no matter on which the senate exercises “executive power to take official action,” the meeting is not subject to the Act and need not be open to the public.

Regarding committees appointed by a county board of education, the Open Meetings Committee has issued but one advisory opinion, No. 2009-07. The Committee advised in that opinion that a County Comprehensive Education Facilities Plan Committee is subject to the requirements of the Open Meetings Act.

However, in response to questions from other public bodies about their committees, the Open Meetings Committee, in several advisory opinions, has issued advice that a school board’s committees would do well to heed.

Those opinions take the position that such a committee must follow the Open Meetings Act in at least three situations: (1) if the committee makes recommendations to the public body, and the committee includes at least two members of the public body, or (2) whether or not the committee includes members of the public body, if the committee is authorized by law to exercise some portion of the executive or legislative power, or (3) regardless of the committee’s purpose, if its membership includes a quorum of the parent body. See Advisory Opinion Nos. 2002-13, 2005-05, 2009-07

Open Meetings Advisory Opinions, including those referred to above, are publicly available on the Ethics Commission’s website, http://www.ethics.wv.gov.

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.