December 22, 2016 - Volume 36 Issue 11


By Howard E. Seufer Jr., Esq., 

Question: May a county board of education lawfully schedule all or any of its regular meetings to occur on weekday mornings rather than in the evening?


Answer: The school statutes contemplate that county boards will schedule and hold regular meetings.  However, the statutes do not expressly dictate that regular meetings be held in the evening or that regular meetings cannot be held in the morning.

The Open Governmental Proceedings Act requires a school board to give advance notice of regular meetings to the public and news media. The Act specifies that the notice must include the date, time, place and agenda of all regularly scheduled meetings. See West Virginia Code § 6‑9A‑3. But the Act does not address the time of day that a regular meeting may occur.

Be aware that the West Virginia Supreme Court of Appeals and circuit courts have repeatedly ruled that a county board of education “must abide by the remedies and procedures it properly establishes to conduct its affairs.” Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977).Accordingly, before scheduling regular meetings for the morning hours, a board should first determine whether any of its own policies prohibit morning meetings or require that regular meetings be held in the evening. Until any such policy is duly amended or repealed, the board is bound by its terms.

Finally, a county board that conducts morning meetings should anticipate that in some circumstances, members of the public interested in attending board meetings, including members of the school community, may take issue if morning meetings conflict with their other commitments, such as work and child care, and thus make it difficult or impossible for them to attend.

As noted, the Open Governmental Proceedings Act does not specifically prohibit public bodies from holding regular meetings in the morning. However, the Legislature’s stated purpose in passing the Act includes the importance of citizen participation in public meetings:

“The Legislature hereby finds and declares that public agencies in this state exist for the singular purpose of representing citizens of this state in governmental affairs, and it is, therefore, in the best interests of the people of this state for the proceedings of public agencies be conducted openly, with only a few clearly defined exceptions. The Legislature hereby further finds and declares that the citizens of this state do not yield their sovereignty to the governmental agencies that serve them. The people in delegating authority do not give their public servants the right to decide what is good for them to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government created by them.

“Open government allows the public to educate itself about government decisionmaking through individuals' attendance and participation at government functions, distribution of government information by the press or interested citizens, and public debate on issues deliberated within the government.”

West Virginia Code § 6‑9A‑1. Persons who object to a morning meeting schedule can be expected to cite this Legislative intent as a reason to urge that  regular meetings occur after, rather than during, the usual workday.


By Rebecca Tinder, Esq., partner Bowles Rice LLP, Charleston

Q. What is supposed to happen after a county board of education (“Board”) adopts an Order proposing an excess levy be submitted to a vote in the District at the general election pursuant to W.Va. Code § 11-8-16?


Answer: The practice of submitting this and other Orders to the County Commission (“Commission”) of the same county appears to have a long history with an unknown origin. It is understandable that this information is transmitted to the Commission so that the Commission is apprised of the activities of the Board and the addition of the levy on the upcoming ballot by the County Clerk. However, Commission does not have authority to “reject” or “deny” the duly adopted Order of the Board and any such vote of the Commission to “reject” or “deny” the Order has no legal effect. 

As a local levying body, the Board is empowered by statute to call for an election to increase the levies by entering on its record of proceedings an order setting forth the following seven statutory requirements:

                (1)          The purpose for which additional funds are needed;
                (2)          The amount for each purpose;
                (3)          The total amount needed;
                (4)          The separate and aggregate assessed valuation of each class of taxable property within its jurisdiction;
                (5)          The proposed additional rate of levy in cents on each class of property;
                (6)          The proposed number of years, not to exceed five, to which the additional levy applies;
                (7)          The fact that the local levying body will or will not issue bonds, as provided by this section, upon approval of the proposed increased levy.

                W. Va. Code § 11-8-16.

Pursuant to the Order, and applicable law, the County Clerk and the other two members of the County Board of Ballot Commissioners must place the Proposed Excess Levy on the official ballot for the upcoming election in the county. Relevant state law provides that the board of ballot commissioners for each county (i.e., the county clerk, ex officio, plus two other members, one each appointed by each of the two major political parties’ respective executive committees) shall provide the ballots and sample ballots necessary for conducting every election in which the voters of the county participate. Additionally, the officers conducting the general election at each place of voting have a statutory obligation to conduct the election ordered by the Board on the question of the school levy and canvass and certify the result thereof to the commissioners of the county court in the same manner, so far as applicable, as they are required to conduct and certify the result of the general election.

As a result, while providing the Order to the Commission, as a courtesy, the Board should provide the Order to the County Clerk and request that the County Clerk convene the County Board of Ballot Commissioners to complete the duties required to ensure the levy is appropriately placed on the ballot for an election by the voters.

To do otherwise would be to erroneously permit the Commission to substitute its judgment in place of the judgment of the Board and, more egregiously, the ultimate judgment of the voters of the District. 

Editor’s Note: Both Seufer and Tinder are partners in the Bowles Rice LLP firm. Their offices are located in Charleston. Seufer serves as West Virginia School Board Association Counsel, a position he has held since 1986.