Legalities

February 20, 2020 - Volume 40 Issue 7

Legalities

By Trey Morrone

When our board will vote whether to suspend and/or discharge an employee for disciplinary reasons, must the employee’s name appear on the meeting agenda that we post for the public and news media? Once the vote is taken, must the employee’s name appear in the meeting minutes?

A. This poses a very good question, because it recognizes the distinction between information appearing on a meeting agenda and information appearing in meeting minutes. Indeed, the requirements for each are different when it comes to a recommendation by the superintendent that an employee be suspended or discharged. The Open Governmental Proceedings Act, W.Va. Code §6-9A-1, et al. (“Open Meetings Act”) is instructive in this situation.

Generally speaking, the Open Meetings Act requires that “all meetings of any governing body shall be open to the public.” It also requires that an agenda be published in advance of the meeting stating the “purpose” of the meeting. However, the Open Meetings Act also contains an exception with regards to the consideration of matters pertaining to the discipline or discharge of an employee. See, W.Va. Code § 6-9A-4(b)(2). Because of this exception, which clearly contemplates an employee’s right to privacy, it is not necessary to state the name of the employee on the agenda posted in advance to give notice to the public.

The key is to recognize the distinction between the county board considering the recommendation of the superintendent versus the county board voting upon the recommendation of the superintendent. The Open Meetings Act does not contain a right to privacy with respect to the vote. In fact, it requires that a vote taken by the county board be done in open session.

Given the above, the best practice for a county board is to omit the employee’s name from the meeting agenda. The general item can be listed, but the employee’s name can be replaced with a blank line. However, once the county board plans to take action on the superintendent’s recommendation regarding the employee discipline or discharge matter, the name of the employee must be stated in the open meeting and prior to any vote being taken by the county board. The motion must be made and the vote must be taken in open session. Similarly, the meeting minutes must state the action taken by the county, including the name of the employee. 

Morrone is special counsel at Bowles Rice LLP and a member of the firm’s Education Law Group.