“Executive Session Privilege”: There is No Such Thing

Several new board of education members will begin their duties on July 1, 2012. Many of these duties are outlined in West Virginia Code § 18-5-13. These new board members will undergo new board member orientation and might feel overwhelmed with the "formal" process of board meetings and the West Virginia Open Governmental Proceedings Act, personnel issues, RIF and transfer season, superintendent evaluations, student expulsion hearings, etc. The purpose of this month's newsletter is to remind you and your board members (both new and old) that many issues, including personnel issues, discussed in executive session are communications which may be subject to discovery in a deposition or other legal proceeding by an impacted employee. In other words, the board cannot assume that what is discussed in executive session is privileged information which will remain behind closed doors.

As we all know, West Virginia Code § 6-9A-4 provides that an executive session can be had to consider matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of a public officer or employee. Therefore, these particular “personnel” matters can be discussed in executive session. However, a long-standing West Virginia Supreme Court of Appeals case, Staton v. Hrko (W.Va. 1989), provides that board members of the county board of education can be required to testify as to their knowledge of the reason why a person selected for employment was viewed as being more qualified than the other applicants. In Hrko, the superintendent recommended to the board the hiring of a particular employee. Another employee brought a writ of mandamus action asserting that he was more senior and qualified for the position. The Supreme Court ruled that the employee not selected had the right to depose (question under oath) the board members to determine why he was not selected for the position. Similarly, board members have been subpoenaed and required to testify to matters discussed in executive session before the Public Employees Grievance Board.

Although often times board members may consider executive session to be a safe haven, in reality, the purpose of executive session is to protect the employee, not the employer (board of education). There is no such thing as an “executive session privilege”. As the West Virginia Supreme Court of Appeal recently stated in Marshall v. Carter (W. Va. 2010), “recognition of an executive session privilege would have the pernicious effect of immunizing public agencies from civil liability for any conduct engaged in during executive session.” The Court further stated, “recognition of an executive session privilege is not necessary to protect matters discussed in an executive session from public scrutiny.”

So as you and your board members enter executive session, as is often done, keep in mind that what is discussed does not always remain behind closed doors. Although it may be a rare occasion that is factually and legal specific, it is something to keep in mind.