Executive Session Privilege: There is No Such Thing

Often, board of education members believe what happens in executive session, stays in executive session. However, you and your board’s members, both new and old, are well-served to remember that many issues, including those involving personnel, discussed in executive session are communications that may be subject to discovery in a deposition or other legal proceeding by an affected employee. In other words, the board cannot assume what is discussed in executive session is privileged information that will remain behind closed doors.

West Virginia Code § 6-9A-4 provides, among other things, boards may hold an 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. Therefore, boards may discuss these particular “personnel” matters in executive session.

However, a long-standing West Virginia Supreme Court of Appeals case, Staton v. Hrko (W.Va. 1989), provides board members of the county board of education can be required to testify about their knowledge of why a person selected for employment was viewed as more qualified than other applicants. In Hrko, the superintendent recommended the board hire a particular employee. Another employee brought a writ of mandamus action asserting he was senior and more qualified for the position. The supreme court ruled the employee not selected had the right to depose (question under oath) board members to determine why he was not selected. Similarly, board members have been subpoenaed and required to testify to matters discussed in executive session before the West Virginia Public Employees Grievance Board.

Although board members may consider executive session a safe haven, in reality, the purpose of executive session is to protect the employee, not the employer (board of education). There is no such thing as an “executive session privilege.” As the West Virginia Supreme Court of Appeals stated in Marshall v. Carter (W. Va. 2010), “Recognition of an executive session privilege would have the pernicious effect of immunizing public agencies from civil liability for any conduct engaged in during executive session.” The court further stated, “Recognition of an executive session privilege is not necessary to protect matters discussed in an executive session from public scrutiny.”

As you and your board members enter executive session, keep in mind that what is discussed does not always remain behind closed doors.

Should you have any questions or concerns regarding this issue or any other legal matters, please contact the attorneys of Dinsmore's Education Law Practice Group.