Legalities

July 2, 2019 - Volume 39 Issue 11

Legalities

Roger Hanshaw

By Laura Sutton, Esq.

Question: What types of personnel matters justify a board of education going into executive session to discuss? 

Answer: Just because a board may consider something a “personnel matter,” does not necessarily mean that it is a personnel matter warranting an executive session. 

Under West Virginia’s Open Meetings Act, a county board of education may go into an executive session for any of the reasons set forth in Act.  A common reason for a board of education to go into an executive session is to discuss personnel matters. However, there are exceptions to this rule.     

The Open Meetings Act allows a board of education to go into an executive session and exclude the public "only when a closed session is required" for one of the reasons listed in West Virginia Code § 6‑9A‑4: to consider matters arising from the disciplining, discharge or dismissal of a public employee unless the public employee requests an open meeting, and to consider 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. 

Under the Act, executive sessions to consider personnel matters may also be held to conduct a hearing on a complaint against an officer or employee, unless the officer or employee requests an open meeting. A closed session is likewise appropriate to discuss certain material the disclosure of which would constitute an unwarranted invasion of an individual's privacy. Finally, a board may go into executive session to consider the physical or mental health of any person, unless the person requests an open meeting.

So, when is an executive session for personnel not allowed?  

The Act prohibits a board from going into executive session to discuss or consider “general personnel policy issues.” General personnel policy issues may not be discussed or considered in a closed meeting.  For example, the West Virginia Ethics Commission has advised that the creation or modification of a job description is a general personnel policy matter and may not be considered or discussed in executive session.  The commission reasoned that a job description generally sets forth the duties and responsibilities of an employment position. Although it may be specific to a position, or a group of positions, it is not personal to the individual who currently occupies the position.

Use caution when heading into an executive session to discuss personnel. Ensure that your board is following the Act, and that the item to be considered or discussed is not a general personnel policy issue.

Prior to going into executive session, it is the responsibility of the board president to announce the justification for doing so. One of the reasons listed in the Open Meetings Act must be identified, and a majority of the board members present must vote to go into executive session for the reason announced. Because “general personnel policy issues” do not justify an executive session, but other kinds of personnel matters enumerated in the Act do, a cautious board might consider announcing the executive session justification with enough detail to make clear to the public that the board is observing that distinction, e.g., “I move that the board go into executive session to discuss the employment of someone to fill a vacant position,” instead of “I move that the board go into executive session for a personnel matter.”

 

Editor's Note: Sutton is Special Counsel to Bowles Rice LLP and a member of the firm’s Education Law Group.