February 14, 2019 - Volume 39 Issue 6


Roger Hanshaw

By Kim Croyle

Q:  Are out-of-school environment days and out of calendar days considered legal holidays when computing time periods for providing notice of meetings under the Open Governmental Proceedings Act?   Are State legal holidays the same as legal school holidays?

A.  Determining whether proper notice has been given for a board meeting can be one of the most confusing tasks for school board members.  On January 3, 2019, the West Virginia Ethics Commission Committee on Open Governmental Meetings issued Open Meetings Advisory Opinion No. 2019-01, making it easier for school boards to understand the nuances of the school calendar and its interplay with the Sunshine Law’s notice requirements.

By way of background, school employees, whether professional or service personnel, are entitled to a minimum 200-day employment contract.  Within that 200 day employment term, West Virginia Code 18-5-45 requires boards of education to develop a school calendar that provides for 180 separate days of instruction for its students, and 20 non-instructional days that are comprised of 7 paid holidays; election day; 6 days designated to be used by the employees outside of the school environment (OSE days); and the remaining days to include, but not be limited to curriculum development; professional development; teacher-pupil-parent conferences; professional meetings; etc.  This code section also mandates that county boards designate days as out-of-calendar days (OC days) to be used as instructional days in the event school is cancelled for any reason.  

All school employees are paid for OSE days.  Employees with contract terms of 261 days are paid and work on OC days.  200-day employees are not paid and do not work on OC days unless those days have been converted to instructional days.

When counting business days for notice purposes under the Open Governmental Proceedings Act (the “Act”), the Committee explained in O.M.A.O. 2019-01 that “the day of the meeting, Saturdays, Sundays and legal holidays are excluded. . . . Accordingly, OC and OSE days are to be counted unless they occur on the day of the meeting, Saturday, Sunday or are considered a legal holiday.”  The Ethics Commission observed that W. Va. Code 18-5-45(c) “treats OSE and OC days separate and distinct from paid holidays. . . . Furthermore, OSE and OC days are not among the designated legal school holidays.”

To add an extra twist, State legal holidays and legal school holidays are not necessarily the same.   W. Va. Code 18A-5-2(a) designates legal school holidays as Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Christmas Day, New Year’s Day, Martin Luther King’s birthday, Memorial Day, and West Virginia Day.  These holidays differ from State legal holidays, found in W. Va. Code 2-2-1, which designates additional days as holidays, including President’s Day, Columbus Day, and Lincoln’s Day (the day after Thanksgiving.)

Finally, do not forget to check your local policies and school calendar when counting days.  Remember, there is never a penalty for getting your notice and agenda out early!

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