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Legalities Feature

 

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By Howard Seufer
Attorney, Bowles Rice

Question:  Does the county superintendent have a right to attend every executive session held by the school board?  What if the board wants to discuss something that involves the superintendent and doesn’t want the superintendent to know what is said?

Answer:  West Virginia school law requires that the superintendent “shall serve as the secretary of the county board and attend all meetings of the county board or its committees, except when the tenure, salary or administration of the county superintendent is under consideration.”

The law draws no distinction between regular and special meetings of the school board.  Nor does it distinguish between those portions of board meetings that are held in public and those held in executive session.  The superintendent, as secretary, is required to attend all of them, except when the superintendent’s own “tenure, salary or administration” is under consideration.

Although the superintendent, as the board’s secretary, is not obligated to attend a meeting held to consider his or her “tenure, salary or administration,” the law does not prohibit the superintendent from doing so. Presumably the school board can decide whether to include or exclude the superintendent when an executive session is held to discuss such an issue.

Note, however, that in one circumstance the board might not get to decide whether to include or exclude the superintendent from an executive session held to consider his or her “tenure, salary or administration.”  The reason is that the Open Meetings law allows a school board to meet in executive session to consider “matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of a public officer or employee,” but only if the public officer or employee does not request an open meeting.

By exercising his or her right to make the board consider such a matter in an open meeting rather than in executive session, a superintendent might then hear the board’s discussion on the topic. 

Two final points.

First, the law that requires the school board to formally evaluate its superintendent states that the board must go into executive session to do so.  Because the law is so clear on that point, it appears that the county superintendent cannot use the Open Meetings law, quoted above, to force the school board to consider the evaluation in a public session.  The evaluation law trumps the Open Meetings law on this point. Additionally, even though the evaluation of a superintendent may arguably implicate the superintendent’s “tenure, salary or administration,” the same law about superintendent evaluations arguably entitles the superintendent to attend the executive session to learn the evaluation results.

Second, in spite of their duties as secretary, some superintendents have a practice of not attending a certain type of executive session, even though the board is not considering the superintendent’s “tenure, salary or administration.”  This occurs when, at the conclusion of a student or employee hearing, the school board dismisses the hearing participants in order to consider in executive session whether to agree or disagree with the administration’s recommended disposition of the case.

Superintendents who don’t attend these post-hearing board discussions say that they want to prevent suspicion that they used the occasion to unfairly influence the board’s decision with information or argument that was not presented during the hearing.  To remove any doubt about whether they engaged in that kind of activity and possibly violated the student’s or employee’s right to due process, they physically leave the room where the discussion takes place and rejoin the meeting only when the school board returns to public session.

Other superintendents believe that their duties as the board’s secretary require them to attend an executive session during the board’s post-hearing discussion.  They understand, however, that they may later have to prove in a grievance or court case that they did not use the occasion to unfairly influence the board’s decision in violation of the student’s or employee’s due process rights.  (Of course, if the student or employee does not request a hearing or does not appear at the hearing, then there would appear to be no due process issue.  The superintendent can arguably attend and vigorously participate in any executive session held by the board to determine the student’s or employee's fate.) 

 

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By Rick Boothby
Attorney, Bowles Rice

Q:        If a board member posts on his or her personal social media (Facebook, Twitter, TikTok, etc.) about the board of education’s news or business, can the board member “block” individuals from commenting on the social media platform or delete comments that criticize the board member’s post? 

Q:  Is it true that a school board cannot appoint someone to fill a vacant position unless the superintendent first recommends that the school board appoint that person?

A:  Yes. West Virginia law requires the county superintendent to nominate all school personnel who are to be employed by the school board. Without the superintendent’s prior recommendation, the school board cannot lawfully vote to hire service or professional school employees.  

Q: But can the school board reject the superintendent’s nominee?

A: Yes. The school board’s authority to reject the superintendent’s nominee is found in both Chapters 18 and 18A of the West Virginia Code. After the superintendent makes his or her recommendation, the school board president will often ask if there is a motion to accept the superintendent’s recommendation. When no such motion is made, or if the motion fails for lack of a second, or if the motion fails by vote of the board, the motion dies, and the recommendation of the superintendent is rejected.

Q: When the school board rejects the superintendent’s nominee, what steps must be taken to fill the vacant position?

A: Upon the rejection of the superintendent’s nominee, the superintendent is required to nominate another applicant at a time the school board may direct. Some school boards expect the superintendent to present another nominee at the same board meeting. Others may instruct the superintendent to nominate other applicants at a future board meeting. In any case, for the position to be filled in a legal manner, the superintendent will have to nominate another candidate.

Keep in mind that there are statutory deadlines for filling both professional and service personnel positions. Directing the superintendent to nominate another applicant after the deadline has passed could be problematic if a grievance is filed. School boards should be aware of those deadlines when rejecting a superintendent’s nominee and instructing the superintendent when to present another name.

Q:  Are there legal risks the school board should consider before rejecting the superintendent’s nominee?

A: Yes. The superintendent is tasked with nominating the qualified applicant who prevails over all applicants based on criteria specified in the school laws. Assuming that task was completed competently and in good faith, the school board may have trouble defending their decision if a grievance is filed by the superintendent’s original nominee. That is not to say that school boards cannot and have not prevailed in such grievances. They can and they have. But the school board should take extra care and time to consider the statutory hiring factors before rejecting the superintendent’s nominee. 

The applicant entitled to fill a service position is determined by examining three factors: qualifications, past performance evaluations, and seniority. Those hiring factors are found in West Virginia Code §18A-4-8b. Ordinarily, a service employee qualifies for a position by passing a state competency test or by having held a job in the same classification as the posted vacancy. Seniority for service personnel is a date. The applicant with the greatest seniority is therefore usually easy to identify. Finally, while there can be some differences in employees’ past performance evaluations (i.e., higher praises, lesser complaints), absent an unsatisfactory evaluation and/or a failure to complete an improvement plan satisfactorily, this factor will not usually impact which service applicant is the most qualified under West Virginia law.

Selecting the most qualified applicant for a professional position is a more subjective task and involves a different set of selection factors than those used to select service personnel. The professional vacancy-filling factors are found in West Virginia Code §18A-4-7a. If challenged in a grievance about why it rejected the superintendent’s nominee for a professional position, the school board must be able to articulate its reasons for doing so. And those reasons must be based upon the hiring factors found in West Virginia Code §18A-4-7a.

For further reading…

W. Va. Code §18-4-10, available at https://code.wvlegislature.gov/18-4-10/

“No person or persons shall be employed except on the nomination of the county superintendent.”

If “the county board refuses to employ any or all of the persons nominated, the county superintendent shall nominate others and submit the same to the county board at a time the county board may direct.”

 

W. Va. Code §18A-2-1, available at https://code.wvlegislature.gov/18A-2-1/

“In case the board refuses to employ any or all of the persons nominated, the superintendent shall nominate others and submit the same to the board at such time as the board may direct.”

 

W. Va. Code §18A-4-7a, available at https://code.wvlegislature.gov/18A-4-7a/

“A county board of education shall make decisions affecting the filling of vacancies in professional positions of employment on the basis of the applicant with the highest qualifications.”

 

W. Va. Code §18A-4-8b, available at https://code.wvlegislature.gov/18A-4-8b/

“A county board shall make decisions affecting promotions and the filling of any service personnel positions

 

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By Leigh Anne Wilson
Attorney, Bowles Rice

Q:        If a board member posts on his or her personal social media (Facebook, Twitter, TikTok, etc.) about the board of education’s news or business, can the board member “block” individuals from commenting on the social media platform or delete comments that criticize the board member’s post? 

For example, imagine a board member makes a post to his or her personal Facebook page about a recent visit to a local elementary school to view an orchestra performance.  A critical Community Caren comments, “it would be nice if you’d visit for something that really matters, like for a meeting with parents on why this “New Math” even matters.”

 Can Community Caren be blocked or her comment deleted?

A:        The short answer is “NO” board members cannot “block” individuals for indefinite periods of time from commenting on social media posts about board of education business OR delete critical or unfavorable comments.  Board members must take caution when they post about official board of education business on their personal social media pages and must consider the following:

  • Prohibiting certain users from commenting on social media posts related to official board business necessarily implicates the First Amendment to the Constitution and its protection of freedom of speech.
  • There have been a significant number of recent lawsuits that dealt with the application of the First Amendment to activities of elected officials, such as board of education members, on social media platforms.  Particularly when courts find the social media platform (such as Facebook page or Twitter account) to be a forum for public discussion, courts have found blocking participants from commenting or deleting unfavorable comments to be unconstitutional.
  • Courts have found it compelling that members of the public may attend and offer comments at in-person board of education meetings.  Courts have likened social media platforms as an opportunity for board of education members to engage in public discourse similar to that in a public meeting.  By creating the original “post” on Facebook or “tweet” on Twitter, board of education members are essentially inviting interaction and comments from the public. 
  • It is easy to see why courts have held that blocking individuals for indefinite periods of time or removing their comments entirely is a violation of Constitutional rights.  Just as members of the public are permitted to attend board meeting and express their viewpoint, so too must the public be allowed to comment on board business and news appearing in “posts” and “tweets” on Facebook, Twitter, and other social media platforms. 
  • However, courts are not completely lacking in sympathy for board members who simply want to disseminate information quickly and efficiently to the public regarding board of education business.  Courts have encouraged board members who maintain social media platforms to establish rules of etiquette that prohibit repetitious “spamming” on social media and comments that disrupt the original post. 
  • Some courts have implied that a ban of a disruptive or repetitious commenter on social media platforms may be appropriate for shortened periods of time. Courts have compared a shortened ban of a disruptive commenter to be akin to the reasonable removal of an unruly person from a public meeting.  Nevertheless, courts emphasize that board of education members cannot block commenters indefinitely or delete unfavorable comments, while permitting favorable commentary and other interactions with the public.
  • Public officials who wish to moderate public discussion on social media platforms should recognize it can be an effective way to provide awareness about board activities, but that it involves a great deal of discretion.  Again, courts encourage officials, such as board of education members, to adopt rules about online comments and a clear outline of the consequences (such as limited blocking) for violating such rules. CAUTION-If board members are considering creating “rules of decorum” for comments on their personal social media platforms and consequences for violators, these officials would be well-advised to seek legal advice before proceeding.
  • In sum, if board members share board of education news and business on their personal social media platforms, such as Facebook or Twitter, they are essentially inviting discussion by and with the public.  Therefore, tread cautiously, because blocking an individual or removing their comments will likely be viewed as a violation against Constitutionally-protected free speech. 

Leigh Anne Wilson focuses her work primarily on issues related to labor and employment and higher education. She has assisted in the defense of employers against claims for discrimination, harassment, wrongful discharge, and retaliation, as well as claims brought under family and medical leave and disability accommodation laws. She is a former National Board-Certified teacher.