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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.