Beginning on July 1, 2014, several West Virginia boards of education will welcome new board members. In fact, as required by state law, the organizational meeting for county boards throughout the state will take place on July 7th. Among other things, the opportunity to service on a county board of education will be a first for many of these board members in working with the West Virginia Open Governmental Proceedings Act (“Act”). The Act defines the term “meeting” and covers, agenda and notice requirements, as well as executive session exceptions.
Although new board members always have a number of questions during the initial months as they become familiar with their statutory duties found in state law, it always seems that during the summer months (and often throughout the year), boards of education often wish to gather together to “touch base” with members of their community or merely wish to discuss and work through issues they are facing, without any intention to take official board action or have a formal board meeting. Such sessions are certainly useful and have the potential to be very productive, but, as we all know, the Act places many restrictions on how and when board members may convene as a group, what may take place, and what, if any, public notice is required.
Is there a difference?
The applicable West Virginia statute defines “meetings” which are subject to the open meetings requirements at W. Va. Code § 6-9A-2, as follows:
"Meeting" means the convening of a governing body of a public agency for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter which results in an official action.
However, there are exceptions to this definition, including the following: General discussions among members of a governing body on issues of interest to the public when held in a planned or unplanned social, educational, training, informal, ceremonial or similar setting, without intent to conduct public business even if a quorum is present and public business is discussed but there is no intention for the discussion to lead to an official action[.]
A work session has been defined by West Virginia Ethics Commission Advisory Opinion as a meeting where a quorum of the board will be present, and issues requiring official action will be discussed and considered, but there will be no official action or voting at the meeting. However, a work session is subject to the same notice requirements as an official board meeting, and the date, time, place, and agenda must be publicly posted. True work sessions should be noticed in this manner, so that there can be an open discussion between the public and the board members, and among the board members about issues raised at the meeting.
There are rare occasions upon which a board of education may plan a meeting in advance to discuss relevant issues without complying with the open meetings law’s provisions. If, however, the board truly intends to discuss only matters that will not require any future action or vote, then the notice and publication requirements do not apply. A pertinent example would be a planned training session where the superintendent has invited attorneys to provide board members with legal information/workshop, such as basics of the reduction in force process, how to properly conduct employee hearings/student expulsions, or similar topics. While possibly of “public interest,” such training sessions would not comprise any intent to conduct public business or discuss matters which might require board action. (See West Virginia Ethics Commission Advisory Opinion, for example of educational or training workshop.)
Some helpful “meeting” examples
Two or more county board of education members may properly visit a school to observe facilities, educational programs, teaching strategies and other activities as an on-site inspection activity exempt from the requirements of the Act. (See Pleasants County Board of Education 2001-03).
Series of phone calls to obtain approval for official action from board members is not a proper meeting in compliance with the Act. (See James W. Curry Library 2001-36).
A quorum of board members may meet with constituents and other public officers, so long as they do not begin deliberating toward a decision on a matter requiring official action. (See Preston County Commission 2001-34).
Board Member may exchange e-mail communications with Superintendent and other Board Members regarding logistical matters. Exchange of e-mails involving deliberation on merits of a matters requiring official action not permitted. (See Mercer County Board of Education 2005-12).
Email may not be used to conduct a dialogue on the merits of a matter requiring official action. (See Jefferson County Planning Commission 2006-09).
Consultant retained by the board of education may meet one-on-one with the elected members of the county board of education to establish criteria and skills important in hiring a new superintendent. (See Executive Director of the WV School Board Association 2009-06).
A series of communications and e-mails may not be used to subvert the Act. (See West Virginia Statewide Addressing & Mapping Board 2007-01).