Rick Boothby, Esq.
Rebecca Tinder, Esq.
Boardsmanship in the Age of Social
Media & Electronic Communication
WVSBA at Stonewall Resort
November 8, 2014
A word about this presentation
We speak in general terms today.
The specific facts of each situation
can make a difference in the legal principles that
apply.
This presentation must not be treated as legal
advice about any specific situation.
Due to the rapidly changing nature of the law,
information in this presentation may become
outdated.
When in doubt, don’t act or rely
upon the information contained in
this presentation without seeking
legal advice.
2
The Education Law Group
at Bowles Rice
Leaders of the Group
Adjunct Attorneys
Mark Adkins – Construction Litigation
Bob Bays - Eminent Domain
Aaron Boone – Civil Litigation
Joe Caltrider – Personal Injury Defense
Mark D’Antoni – Real Estate
Mark Dellinger – Human Rights
Kim Croyle - Morgantown Kit Francis – Creditors’ Rights
Jill Hall - Employee Benefits & Obamacare
Roger Hanshaw – Parliamentary Procedures
Justin Harrison – ADA and Employee Leave
Tom Heywood – Legislative Matters
Legal Assistants
Bob Kent - Personal Injury Defense
Leonard Knee – Environmental Law
Sarah Plantz - Charleston Ellen Maxwell-Hoffman – Ethics
Dianne Wolfe - Parkersburg Steve Prunty - Easements
Marion Ray - Workers Compensation
Cam Siegrist – Bond Issues and Finance
Ken2010
Webb - Construction Litigation
Copyright
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Greg Bailey - Morgantown
Rick Boothby - Parkersburg
Howard Seufer - Charleston
Rebecca Tinder - Charleston
Social Media & Electronic
Communication Issues for School
Board Members
Facebook
Maintaining a personal Facebook account
that emphasizes your status as a county
School Board Member
Electronic
Communications
Board Member
Meeting
Participation
Board Meetings
Generally
???????
Implications under The Open
Governmental Proceedings Act
Participating by telephone, Skype, FaceTime,
or similar electronic media
Use of electronic agendas and
electronic attachments
Other questions we were asked to address
Copyright 2010
4
Board Functions - examples
(1) As a governmental unit, providing a
proper framework and the governance
strategies necessary to monitor and approve
student achievement on a continuing basis,
such that the general public can see and/or
hear what it is working on; and
(2) Acting as an adjudicatory body for
students and employees in a manner that is
fair and unbiased.
5
Board Functions - examples
(1) Regular and Special Board
Meetings; and
(2) Hearings.
6
Board Functions - examples
(1) In compliance with the Open
Governmental Proceedings Act; and
(2) In compliance with all laws and policies.
7
What is a meeting?
Is it a meeting if we’re not all
in a room together?
Can we “meet”
electronically?
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Open Meetings Act
"Meeting" means the convening of
a governing body of a public
agency for which a quorum is
required in order to make a
decision or to deliberate toward a
decision on any matter which
results in an official action.
Meetings may be held by
telephone conference or other
electronic means.
Social Media & The Open Meetings Act
9
Open Meetings Act
"Decision"
means
any
determination, action, vote or
final disposition of a motion,
proposal, resolution, order,
ordinance or measure on
which a vote of the governing
body is required at any
meeting at which a quorum is
present.
Social Media & The Open Meetings Act
10
Meeting participation by
telephone and other
electronic means
Board Member Meeting Participation
11
Contemplated by the Open
Meetings Act
Four Basic Rules - Meetings by
telephone and other electronic means:
1.
The person participating by
telephone is able to hear what is going on
in the meeting;
Open Meetings Advisory Opinion No. 99-08
Board Member Meeting Participation
12
Meetings by telephone and other
electronic means:
2.
All persons who physically
attend the meeting -- including the
audience -- can hear what the person
on the telephone says;
Open Meetings Advisory Opinion No. 99-08
Board Member Meeting Participation
13
Meetings by telephone and other
electronic means:
3.
The meeting otherwise
complies with the Open Meetings
Act; and
Open Meetings Advisory Opinion No. 99-08
Board Member Meeting Participation
14
Meetings by telephone and other
electronic means:
4.
The board has adopted a policy
addressing how meetings will proceed
when a member (or members)
participates by telephone (or other
electronic means) and the policy is
followed. (suggested strongly)
Open Meetings Advisory Opinion No. 99-08 and
State ex rel Regional Jail and Correctional Facility
Authority v. Cabell County Commission (WVSCA)
Electronic Communications & The Open
Meetings Act
15
Board Policy on Electronic Meeting
Participation
The Ethics Commission believes that the
Legislature intended public bodies to
adopt policies addressing how such
meetings will proceed, covering issues
such as:
1. verifying the identity of the telephone
participants,
2. composition of the quorum,
3. compensation
of
telephone
participants for “attending” the Board
meeting,
4. Whether the Board president may
preside by telephone,
5. Etc.
Electronic Communications & The
Open Meetings Act
16
Board Policy on Electronic
Meeting Participation
The Ethics Commission expressed no
opinion on these kinds of procedural
issues, believing them to be beyond the
Commission's authority to impose.
The West Virginia Supreme Court
indicated in a decision that public bodies
would be very wise to adopt a policy
regarding this subject. (Though it is not
expressly required by law.)
Electronic Communications & The
Open Meetings Act
17
What about the use of
Social Media?
Social media is the social
interaction among people in
which they create, share or
exchange information, ideas,
and pictures/videos in virtual
communities and networks.
18
E.g.
A private personal account where only close
family & friends, those granted permission, can
see your posts and respond
A public account where the whole world can
see your posts and respond
Possible Prejudgment & Open Meetings Act
Violations?
Social Media & The Open Meetings Act
19
facebook
Wall
Photos
Name
Logout
Tom Jones, school board member
Wall
Info
Photos
Information
Current City: Smithtown, Smith County, West Virginia
Wall
Info
Photos
Friends
Hometown: Treforest, Pontypridd, Glamorgan, Wales,
Great Britain
Sex: All Man !
Birthday: June 7, 1940
Relationship Status: Always looking !
Employer: Self-employed (entertainer)
Education: School of Hard Knocks
Community Activities: School Board Member, Smith
County, West Virginia
Contact Information
Address: Smithtown, West Virginia, 26111
Phone: 304-555-5555
Email: tjones@smithcountyschools.org
facebook
Wall
Photos
Tom Jones
Tom Jones, school board member
Wall
Info
Photos
Update status
School Board Meeting Tomorrow Night !
New school building location being considered.
Please share your ideas.
Wall
Share
Sally Sue Simpson
Why not tear down the old school
and build the new one right there?
Like · Comment
Info
Photos
Friends
Friends
·
Jill Jones
Billy Budd
Carl Convict
Tom Jones
I’m with you Sue. That sure seems like
the way to go. Like · Comment
Sally Sue Simpson
I like the way you think. Glad to
finally have a board member who
listens to the voters.
Logout
facebook
Wall
Photos
Tom Jones
Logout
Tom Jones, school board member
Wall
Info
Photos
Update status
Share
School Board Meeting Tomorrow Night !
New school building location being considered.
Please share your ideas.
Wall
Info
Photos
Friends
Friends
Jill Jones
Billy Budd
Carl Convict
Tom Jones
Happy to help as always
Like · Comment
Sam Citizen
WHY ARE YOU TALKING ABOUT
THIS OUTSIDE OF A BOARD
MEETING????!!!!
Tom Jones
Oh Pipe Down Sam ! I have the right to
express myself. Like · Comment
Is this a Board
Meeting?
Does it matter who else can
see this?
Are there any other possible
problems with this?
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facebook
Wall
Photos
Tom Jones
Logout
Tom Jones, school board member
Wall
Info
Photos
Update status
Share
Suspension hearing tomorrow for Coach Carl.
Please share your opinions
Wall
Sally Sue Simpson
Fire the bum !!! Like · Comment ·
Info
Photos
Friends
Friends
Jill Jones
Tom Jones
I’m with you Sue. That sure seems
like the way to go. Like · Comment
Billy Budd
Carl Convict
Sally Sue Simpson
I like the way you think. Glad to finally
have a board member who listens to
the voters.
facebook
Wall
Photos
Tom Jones
Logout
Tom Jones, school board member
Wall
Info
Photos
Update status
Share
Suspension hearing tomorrow for Coach Carl.
Please share your opinions
Wall
Info
Tom Jones
Happy to help as always
Like · Comment
Photos
Friends
Friends
Jill Jones
Billy Budd
Carl Convict
Sam Citizen
WHY ARE YOU TALKING ABOUT THIS
OUTSIDE OF A BOARD MEETING????!!!!
Tom Jones
Oh Pipe Down Sam ! I have the right to
express myself. Like · Comment
Is this a Board
Meeting?
Does it matter who else can
see this?
Are there any other possible
problems with this?
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facebook
Wall
Photos
Tom Jones
Logout
Tom Jones, school board member
Wall
Info
Update status
Photos
Share
Suspension hearing tomorrow for Principal Pete.
Please share your opinions
Wall
Info
Photos
Friends
Friends
Sally Sue Simpson
Harry House
Carl Convict
Jill Jones, school board member
Principal Pete has always been a
decent upstanding member of our
community. He has my support.
Like · Comment ·
Tom Jones
Oh BIG SURPRISE ! Jill, you always
support the employee no matter what the
evidence is. Like · Comment
Jill Jones, school board member
That’s not true and you know it, Tom !
facebook
Wall
Photos
Tom Jones
Logout
Tom Jones, school board member
Wall
Info
Update status
Photos
Share
Suspension hearing tomorrow for Principal Pete.
Please share your opinions
Wall
Info
Billy Budd, school board member
Right on Tom !
Like · Comment
Photos
Friends
Friends
Sally Sue Simpson
Harry House
Carl Convict
Sam Citizen
SHOULD ANY OF YOU BE
TALKING ABOUT THIS OUTSIDE OF
A BOARD MEETING????!!!!
Jill Jones, school board member
Oh Pipe Down, Sam ! We have the right to
express ourselves ! Like · Comment
Is this a Board
Meeting?
Does it matter who else can
see this?
Are there any other possible
problems with this?
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Open Meetings Act Questions
to Ask
Was there a quorum present?
Were these board members
“deliberating towards a decision” ?
- Is this a simple objective question
that everyone will agree on?
Social Media & The Open Meetings Act
30
Open Meetings Act
What about just hitting the
“like” button on a comment?
Is that evidence of bias or
prejudgment?
Social Media & The Open Meetings Act
31
Cell Phones
Text Messages
Emails
Twitter
Electronic Communications & The Open
Meetings Act
32
Everyone uses email now.
But among school board
members . . .
Electronic Communications & The Open
Meetings Act
33
"Generally,
written
communications,
including electronic mail or ’E-mail,’
should not be used to avoid public
discussions that would ordinarily take
place in the context of an open public
meeting.
Therefore, an exchange of E-mail
communications among a quorum of a
governing
body
which
involves
deliberating toward a decision on a matter
requiring official action is not permitted by
the Act."
Open Meetings Advisory Opinion No. 2006-09.
Electronic Communications & The Open
Meetings Act
34
Cell phones are used
everywhere . . . but during
Board meetings?
Electronic Communications & The Open
Meetings Act
35
“Based upon the cited opinion and the
plain language of the Open Meetings
Act, the Committee finds that a quorum
of a governing body, including a quorum
of any committee or other sub-unit of a
governing body, may not communicate
via text messaging, instant messaging,
email or any other form of electronic
communications during the course of a
meeting for the purpose of deliberating
on a matter which will require official
action.”
Open Meetings Advisory Opinion No. 2009-08
Electronic Communications & The Open
Meetings Act
36
“This form of communication may not
be used to avoid deliberations which
the Open Meetings Act requires to take
place in the context of an open
meeting.
Just
as
electronic
communications may not be used to
circumvent the Act outside of the
meeting, the same rule of laws applies
in regard to the use of electronic
communications during the meeting.”
(emphasis added)
Open Meetings Advisory Opinion No. 2009-08
Electronic Communications & The Open
Meetings Act
37
Board Meetings
&
Electronic
Documents
Use of electronic agendas and
electronic attachments
38
If your board uses
electronic agendas
and agenda
attachments, must it
also provide paper
copies to those who
attend the meeting?
Use of electronic agendas and
electronic attachments
39
There are no Advisory Opinions on the
use of electronic agendas and
attachments.
Best advice from the Ethics
Commission (informal):
1. Make paper copies available at the
meeting, or
2. Notice: paper copies available upon
request (cumbersome).
3. Request an Advisory Opinion from
the Ethics Commission about this
Use of electronic agendas and
electronic attachments
40
Some Other Topics
County information
available to Board
members
Delegations & Open
Hearings where students
or other employees are
discussed
Inviting others into Executive
Sessions
Is it a meeting? Retreats,
work sessions, public forums
...
Copyright 2010
41
Board members seeking
more information about
the operations of the
school system
What school system
records can board
members see?
Information available to Board Members
42
Best Practice: develop a
policy that clarifies what
documents will be shared
and when and who is
responsible for sending
them
Information available to Board Members
43
WV Code 18-5-14(a)
“. . . each county board shall adopt . . .
policies . . . that promote school board
effectiveness . . . between the county
board and its faculty senates for the
purpose of enabling the county board
to receive information, comments and
suggestions directly from the . . .
faculty senates regarding the broad
guidelines for oversight procedures,
standards of accountability and
planning for future needs . . . .”
Information available to Board Members
44
WV Code 18-5-14
The policies shall address the following
objectives:. . . using . . . performance data
provided by the state board and other
available data in county board decision
making to meet the education goals of the
state and other goals as the county board
may establish.
Information available to Board Members
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WV Code 18-4-10
Superintendent has a duty to
(4) Report promptly to the county board
…
(9) Keep the county board apprised
continuously of any issues that affect the
county board or its schools, programs
and initiatives...When practicable, the
reports shall be fashioned to include a
broad array of data and information that
the county board may consult to aid in
making decisions;”
Information available to Board Members
46
FOIA, WV Code 29B-1-1 et
seq.
Public records
Information available to Board Members
47
Delegations & Open
Employee Hearings
Must boards go into
executive session if
students’ names or
employee’s names and
personal information will
be discussed?
Delegations and Open Hearings
48
Generally
- Agendas should not state that a matter
will be heard in executive session
- There is no legal reason to print
“executive session” on a board
agenda
- Ok to indicate the board MAY go into
executive session, but why do it?
Advisory Opinion No. 2000-15
Delegations & Executive Sessions
49
Speakers/Delegations
Should we tell speakers that they are not
permitted to identify district employees or
students by name ?
Should we require them to speak in
executive session if they insist on
identifying district employees or students
by name ?
Delegations & Executive Sessions
50
Who is invited? Who is not (or
should not be) invited?
It depends on the situation:
-Generally speaking
-Superintendent Evaluations
-Disciplinary Hearings
Executive Sessions
51
State ex rel. Marshall County Commission v.
Carter, No. 35272 (January 29, 2010).
The provision of the Open Governmental
Proceedings Act that recognizes a specific and
limited right of governing bodies to meet in an
executive session which is closed to the public
is not intended to prevent the legitimate
discovery in a civil action of matters discussed
in an executive session which are not otherwise
privileged.
Executive Sessions
52
-Retreats
-Work sessions
-Public forums/town meetings
Are these meetings under the
Open Meetings Act that have
to be noticed like all other
meetings?
Is it a meeting under the Open Meetings
Act?
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E-Newsletter Mailing List
Send an email to Sarah Plantz:
splantz@bowlesrice.com
Tell Sarah:
.Who you are
.Your position in public education
.Your school board’s name
.That you want to receive the ENewsletter
Copyright 2010
54
Remaining Questions?
Rick Boothby:
rboothby@bowlesrice.com
304-420-5535
Rebecca Tinder:
rtinder@bowlesrice.com
304-347-2132
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