Member Article

In West Virginia, we are approaching another Personnel Season (for Personnel Season deadlines for the 2017-2018 school year, click here). We are often asked about 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.

The RIF and transfer process 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 potential 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 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 there is no statutory provision which precludes the public from knowing the identity of the person the superintendent is recommending to hire, transfer, grant a leave of absence or accept a resignation or application to retire. Therefore, a county board has two options in order to comply with the act.

Option 1: It may publish an agenda that states the names of individuals and the recommended personnel action; OR

Option 2: 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.

Should you have any questions on this issue or any issues please feel free to contact a member of Dinmore & Shohl's Education Law Practice Group.