February 4, 2011 - Volume 31 Issue 7




By Howard Seufer

[Disclaimer: Due to the rapidly changing nature of the law, the following information may become outdated. It is presented with the understanding that it is not legal advice. Before using this information you should always research original sources of authority, update the information to ensure accuracy when dealing with a specific matter, and consult legal counsel about the particular facts and circumstances of your situation.]

Yes, decisions made by a school board in violation of West Virginia’s Open Governmental Proceedings Act can be nullified by a Circuit Court.  This could conceivably have very serious consequences where the nullification occurs after the deadline has passed to revisit a decision in a way that does not violate the Act.

The Open Governmental Proceedings Act is the law that, among other things, allows a school board to make decisions and deliberate toward decisions only at duly called meetings, requires school boards to give advance notice of meetings to the public and news media, prohibits secret votes and votes by written ballot, and mandates that meetings be open to the public except for executive sessions that are properly convened and held for one of the limited purposes specified in the Act.

Under the Act, a lawsuit contending that a school board’s action or decision violated the Act can be filed by any citizen.  If the Circuit Court agrees with that contention, the Court is empowered to (1) “compel compliance or enjoin noncompliance” with the Act, (2) “annul a decision made in violation” of the Act, (3) order that the school board’s subsequent actions and decisions conform to the requirements of the Act, and/or (4) award attorney fees and costs to the party who brought the suit.  In a separate proceeding, any member of the school board who willfully and knowingly violated the Act may be convicted of a misdemeanor and fined ($500 or less for a first offense, and between $100 and $1,000 for a subsequent offense).

As if to give special emphasis to the section of the Act that requires advance notice of meetings to the public and news media, the Legislature provided in that section that “any court of competent jurisdiction may invalidate any action taken at any meeting for which notice did not comply.”

In the case of McComas v. Board of Education, a quorum of a school board’s members, outside of an official meeting, discussed with the superintendent some proposed school closings and consolidations. At a properly called public meeting the next day, the school board voted to close and consolidate the schools.  But because the private meeting with the superintendent violated the Open Meetings Act, the West Virginia Supreme Court of Appeals upheld a Circuit Court’s order that voided the board’s decision to close and consolidate the schools. 

The Supreme Court explained that the violation of the Act justified invalidating the school board’s subsequent decision, regardless of whether the school board members intended to violate the Act by first discussing the matter in private.  The Court also observed that if the school board wanted to revisit the issue of closing and consolidating the same schools, it would have to repeat from scratch the long procedure (including documentation, public notice and hearings) that school districts must follow in order to take such actions.

Imagine a situation where, because school board members are found to have violated the Open Meetings Act, a Court invalidates the school board’s decision during “personnel season” to release or transfer employees as part of a reduction in force, or to implement a school consolidation, or simply to meet curricular needs.  Because the lawsuit to challenge those personnel  decisions can be instituted as late as four months after the board votes, the Court order voiding the terminations and transfers could be issued long after the February 1 and March 15 statutory deadlines for releasing and transferring personnel, when it would appear to be too late to start over from scratch. 

How would or could the school district operate in the new school year with the same personnel holding the same assignments, in the same buildings, as in the previous year?


Hopefully the Circuit Court, advised of that dilemma, would exercise its discretion and not invalidate the school board’s personnel decisions, resorting to other remedies instead.  But why take the risk?  For that reason alone, school board members should place a high priority on Open Meetings compliance, educate themselves about the Act’s requirements, and thus protect the decisions they make in the performance of their duties.

Howard Seufer is an attorney at Bowles Rice McDavid Graff & Love and counsel for the West Virginia School Board Association.