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Do Disciplined Employees Have to be Announced in Open Session? (West Virginia School Law)


West Virginia Code 6-9A-3 of the Open Governmental Proceedings Act provides that “governing bodies” such as a county board of education shall promulgate rules by which the date, time, place and agenda of all regularly scheduled meetings and the date, time, place and purpose of all special meetings are made available. The meetings are to be made in advance to the public and news media, except in the event of an emergency requiring immediate official action.

Also, we all know the general principle that, as the West Virginia Ethics Commission has determined, that governing bodies like a county of education must issue a meeting notice stating the time and place of a meeting and a “meeting agenda” which lists “the particular matters which will be dealt with” during a meeting. Open Meetings Advisory Opinion No. 2006-15 (January 4, 2007).

So what is meant by list "the particular matters which will be dealt with"? A common question we often get from a county board of education as it relates to the Open Governmental Proceedings Act, and the issue of having to list "the particular matters which will be dealt with" is:


What should be stated on the board's agenda1 for the upcoming employee's statutory suspension, termination or other disciplinary hearing, and when the board comes out of closed session2 to vote on the superintendent's recommendation, or otherwise,, what right does the public have to know of who the subject employee is that the board will be taking action on?3

The West Virginia Ethics Commission has determined that the name of a person being disciplined must be announced in open session after the action is taken. The West Virginia Ethics Commission has specifically stated:

In the case of a disciplinary matter, such a dismissal or suspension for cause which may be discussed in executive session as provided in W.Va. Code §6-9A-4(b), the meeting agenda provided the public may exclude the person’s name ... unless the employee requests an open meeting. The Open Meetings Act requires that, following any discussion in executive session, the name of the person being considered for discipline must be announced in open session before the board takes action to impose discipline.

Open Meeting Advisory Opinion No. 2000-12 (September 7, 2000).

In sum, prior to a board of education voting on the employee's disciplinary action, it must announce the employee's name in open session, although the agenda may be silent of the employee's name. Also, the board of education minutes should reflect the same, and specifically provide the employee's name.4

________________

(1) List the employee's name?
(2) This is assuming the employee has elected a closed hearing on the disciplinary hearing before the county board of education.
(3) Often the local newspapers or other media will contact a superintendent asking for the name of the employee that was the subject of discipline at the upcoming or prior board of education meeting.
(4) Often the best course of action for a county to respond to the local newspapers or others media requests as to employee discipline is to provide a copy of the board minutes which will speak for itself by including the employee's name.                                    

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume , Number 313

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About this Author

Jason Long, education law practice chair, Dinsmore Lewisburg Office
Partner

Jason Long is a Partner in the firm’s Lewisburg office, is the Chair of the Education Law Practice Group and a member of the Labor and Employment Practice Group. Jason's practice concentrates on two areas of law that are quite diverse from each other. The first area of Jason’s practice originates from his pre-lawyer days as an educator as well as growing up as the son of a county school superintendent. Jason focuses on representation of numerous county boards of education in the firm’s Educational Law Practice Group, providing a wide range of services, including, but not...

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