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Does your County’s Personnel Agenda Comply with the Open Governmental Proceedings Act? (WV)

As we wind down from another busy personnel season, a question that seems to come up often concerns the listing of individual employee names on county board of education agendas. Many administrators are, understandably, concerned about revealing the names of employees who are recommended for various personnel actions, such as reductions in force (“RIF”) and transfers, while still complying with the West Virginia Open Governmental Proceedings Act

As we all know, the RIF and transfer process in particular is a difficult and scary experience for many employees, and publicizing it, even if legally required, may seem to add insult to injury for some. In order to spare their employees the embarrassment associated with some personnel actions, many boards provide employees’ names only to board members, with the public board agenda only stating the actions recommended, minus individual names. 

A pertinent provision of the Act, West Virginia Code 6-9A-8(a), provides: 

Except as otherwise expressly 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. However, this subsection does not prohibit a public agency from deliberating, voting or otherwise taking action by reference to an agenda, if copies of the agenda, sufficiently worded to enable the public to understand what is being deliberated, voted or acted upon, are available for public inspection at the meeting. 

The West Virginia Ethics Commission has advised by opinion that a county board of education does not have the authority to conceal the identity of persons being recommended by the superintendent for any type of personnel action. The basis for the opinion is simple in that there is no statutory provision which precludes the public from knowing the identity of the person the superintendent is recommending to hire, transfer, grant of a leave of absence, or acceptance of a resignation or application to retire. Therefore, a county board has two options in order to comply with the Act. 

It may publish an agenda that states the names of individuals and the recommended personnel action; OR it may publish a listing of proposed personnel actions, without individual names, but the names of each person recommended must be announced in open session BEFORE any board vote. 

In cases of a disciplinary matter, such as dismissal or suspension for cause, which may be discussed in executive session, the meeting agenda provided to the public may exclude the person’s name, unless the employee requests an open meeting. This issue was addressed in the November 2010 Education Law Alert

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume I, Number 63

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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...

304-225-1417
Denise M. Spatafore, Dinsmore Shohl, Education Law, Administrative Law Judge
Of Counsel

Denise Spatafore is a member of the Labor and Employment Department. She focuses her practice on education law. Prior to joining the firm, Denise served as the Supervisor of Personnel for the Harrison County Board of Education. As the administrator in charge, she led the personnel department of a school system with approximately 2,000 employees, providing both human resources management and legal services. Earlier in her career, Denise served as an Administrative Law Judge for the West Virginia Public Employees Grievance Board.

304-225-1445