January 19, 2018 - Volume 38 Issue 2


Roger Hanshaw

By Kim Croyle

Question:  Our board has a number of personnel hearings scheduled.  Once the hearing is over and the school board retires to deliberate before taking a vote, may the superintendent as the board’s secretary attend the board’s closed-door deliberations?

Answer:  School boards sometimes devote all or portions of their meetings to contested personnel hearings.  At these hearings, the superintendent or the superintendent’s representative frequently presents evidence and/or argument in support of one side of an issue.  An employee (either personally or through a representative) also presents evidence and/or argument on the other side of the issue.  The school board, functioning almost as a judge or jury, hears both sides and then typically, after deliberating in executive session, votes in open session to sustain one or the other point of view.

A school statute, W. Va. Code § 18-4-10(7), states that the superintendent, as secretary of the county board, “shall attend all meetings of the county board or its committees, except when the tenure, salary or administration of the county superintendent is under consideration.” Nevertheless, the superintendent may be excused or even prohibited from being in the same room as the board when, in executive session, the board deliberates, like a jury, following an employee hearing.

The constitutional right to due process arguably protects employees when the board is asked to sever its relationship with them.  Due process entails, among other things, a fair hearing, as well as the right to counter the evidence and arguments presented by the opposing party.

If the superintendent retires with the board during the deliberations that follow a contested hearing, but without the employee or the employee’s representative, a question arises as to whether this meeting of the board with the superintendent offends the right of due process.  After all, the superintendent’s words or mere presence in the private session could conceivably alter the board members’ view of the case and, therefore, the board’s ultimate decision.

In order to alleviate such due process issues and better protect the board’s final decision, it has been our experience that many superintendents decline to attend the post-hearing deliberative portion of the board’s meeting in executive session.  Because the superintendent’s decision to not attend the deliberations is motivated by constitutional due process considerations which arguably trump the statutory duty of a superintendent to attend all school board meetings, it seems unlikely that a superintendent could be faulted in such cases for not attending the deliberations.

On those occasions where a superintendent has insisted that the superintendent’s duties as board secretary nevertheless require his or her attendance at the deliberative session, we have suggested that a representative of the adversary party also be invited to attend.  This avoids the due process problem, since both sides are in the room.

Where superintendents insist on attending the deliberations even though the employee is not present or represented, we caution that the superintendent should attend as an observer only.  Even then, a due process objection may be raised on appeal by an employee who suspects that the superintendent used the occasion to lobby board members about the case.  To ward off such a claim, the superintendent should also be sure that he or she can prove — to the satisfaction of a judge or hearing examiner — that there was no communication between the board and superintendent about the merits of the case.

Editor's Note: Kim Croyle is a partner at the law firm of Bowles Rice.