Legalities

Overview

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The Thrasher Group

McKinley Architects & Engineers

January 24, 2020 - Volume 40 Issue 3

Legalities

By Josh Cottle, Esq.

Q. Our board is set to vote on a contentious matter. May our board vote on the measure by a secret or written ballot? Must the minutes for a meeting reflect the vote cast by each member of our board?

A. The Open Governmental Proceedings Act (the Open Meetings Act), codified in West Virginia Code §§ 6-9A-1 through 12, generally governs the process that public agencies, such as county boards of education, must follow when voting on measures before them. Section 8 of the Open Meetings Act provides that except as otherwise provided by law, the members of a public agency may not deliberate, vote, or otherwise take official action upon any matter by reference to a letter, number or other designation or other secret device or method, which may render it difficult for persons attending a meeting of the public agency to understand what is being deliberated, voted or acted upon.

Although the above language of the Open Meetings Act makes it relatively clear that a county board may not vote on a matter by secret ballot, the Act goes even further by providing explicitly in West Virginia Code § 6-9A-8(b) that “A public agency may not vote by secret or written ballot.” In summary, unless some other statute specifically provides otherwise, a public agency, such as a board of education, is explicitly prohibited from voting by secret ballot.

Although board members must vote in open—not by secret ballot—the minutes of the meeting are not required to reflect the vote of each member of a county board. West Virginia Code § 6-9A-5 provides that minutes of all meetings except minutes of executive sessions, if any are taken, shall be available to the public within a reasonable time after the meeting and shall include, among other things: the results of all votes and, upon the request of a member, pursuant to the rules, policies or procedures of the governing board for recording roll call votes, the vote of each member, by name.

Therefore, the minutes of board meetings must include the vote by each member of the board, by name, only if a member of the board requests that the minutes include the vote of each member. Otherwise, to satisfy the requirements of the Open Meetings Act, the minutes need only include, among other things, the result of all votes, such as, for example, whether a matter was passed by the board.

Cottle is an associate at Bowles Rice LLP and a member of the firm’s Education Law Group.