January 26, 2018 - Volume 38 Issue 3


Roger Hanshaw

By Kim Croyle

Question:  It is “personnel season” and not all of our Board members can attend every hearing for every employee.  Can they still vote on the Superintendent’s personnel recommendations even if they did not attend all of the hearings?

Answer:  Yes, according to the Grievance Board. Assuming that a quorum of the Board attended a hearing, a Board member who did not attend can nevertheless vote as to the employee whose hearing the Board member missed, but only if (1) that Board member first reviews a recording or transcript of the complete hearing, including any exhibits that were introduced into evidence, and (2) s/he is in attendance when the vote is taken at a meeting. 

Fundamentally, employees are entitled to due process in all matters affecting their employment including transfers and reductions in force. Part and parcel of an employee’s due process right is the right to a meaningful hearing. In fact, the West Virginia Grievance Board, in the case of Thompson v. Cabell County Board of Education, Docket No. 00-06-290 (Dec. 12, 2000), found that, in general, an administrative decision is not invalid because a member who participated in a decision was not present when the evidence was taken, provided s/he considers and acts upon the evidence taken at the hearing.

If a Board member is not in a position to vote on a recommendation involving an employee who requested a hearing -- because the Board member did not attend the hearing and did not review a transcript or listen to a recording of the hearing -- then that recommendation can be pulled for separate action by the Board and the Board member who missed the hearing can refrain from voting.  In those cases, the absent Board member need not leave the room when the vote is taken as s/he would if recusing for other reasons.

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