March 9, 2018 - Volume 38 Issue 9


Roger Hanshaw

By Howard E. Seufer Jr.

Question: Is it true that a county board of education cannot go into executive session to consider a matter unless the published agenda for that meeting informs the public that the matter will be addressed in executive session?

Answer: No, that is not the case.

In fact, it is never wise for an agenda to state that the school board will go into executive session to consider anything.

Under West Virginia’s Open Meetings Act, a decision to go into executive session must be made during the very meeting at which the executive session occurs.

When an agenda indicates that a board will go into executive session at some point during the meeting, the public may understandably wonder whether the school board has violated the Open Meetings Act by deciding at sometime prior to the meeting that an executive session will be held. A violation of the Act can be punished as a misdemeanor crime!

On the other hand, if a topic listed on a meeting agenda is one for which an executive session is authorized by the Open Meetings Act, the board of education may go into executive session to consider it, even though the published meeting agenda does not refer to an executive session or indicate that one will occur. A proper motion to do so must be made and adopted at the very meeting where the executive session will occur.

The West Virginia Ethics Commission’s Committee on Open Meetings advises that it would not be a violation of the Act for an agenda to note that a particular matter “may” be handled in executive session.  However, the Committee advises that any potential benefit to the public from such speculation should be weighed against the possibility that such wording could discourage attendance at the meeting by those who are interested in the matter.

Editor's Note: Howard Seufer is a partner at the law firm of Bowles Rice, and the leader of the Bowles Rice Education Law Group