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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

William B. Hartman,

Plaintiff Below, Petitioner

vs.) No. 21-0765 (Putnam County No. 19-C-74)

Putnam County Board of Education,

Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner William B. Hartman appeals the August 31, 2021, order of the Circuit Court of 

Putnam County that granted Respondent Putnam County Board of Education’s (“the Board”) Rule 

12(b)(6) motion to dismiss petitioner’s complaint which claimed the Board violated the Open 

Governmental Proceedings Act, W.Va. Code § 6-9A-1 to -12 (the “Act”).

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This case arises from a work stoppage conducted by West Virginia’s public school teachers 

and other school personnel on February 19 and 20, 2019.

On February 14, 2019, prior to the work stoppage, the Board members Bruce Knell, Robert 

Cunningham, Wade Neal, and Assistant Superintendent Brad Hodges participated in a “group 

electronic communication” (texting or emailing).

2 One of the Board members stated that if a work 

stoppage occurred in neighboring Kanawha County, that school district intended to remain open. 

On the evening of February 18, 2019, Superintendent John Hudson, Assistant Superintendent 

Hodges, and Board members Knell, Cunningham, Neal and Calvin Damron had a group electronic

conversation in which they generally discussed (1) the likely duration of the impending work 

stoppage; (2) the possibility of picketing at schools; (3) the number of school districts that might

close during the work stoppage; and (4) statements made by, and the demeanor of, people attending

a publicly held Board meeting. The suggestion was also made that it might be best to close Putnam 

County’s schools. The next day, February 19, 2019, fifty-four of West Virginia’s fifty-five county 

school districts closed their schools. Superintendent Hudson, pursuant to his statutory authority 

under West Virginia Code § 18-4-10(5) (allowing a county superintendent to “[c]lose a school 

temporarily when conditions are detrimental to the health, safety or welfare of the pupils”), did not 

close Putnam County Schools.

1 Petitioner is represented by Thomas H. Peyton. Respondent Board is represented by 

Kenneth E. Webb, Jr., Joshua A. Cottle, and Francesca C. Rollo.

2 A majority of the members of the Board constitutes a quorum of the Board.

FILED

October 17, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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On April 9, 2019, petitioner filed a complaint alleging that the Board’s group electronic 

communications were meetings in violation of the Act. However, upon a motion by the Board, the 

circuit court, on August 31, 2021, dismissed petitioner’s complaint for failing to state a claim. 

Petitioner now appeals arguing that the court erred in dismissing his case. “Appellate review of a 

circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. 

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).

Petitioner avers that the Board violated the Act by convening electronic “meetings” for the 

purpose of deciding whether to close Putnam County Schools. The Act defines a “meeting” as “the 

convening of a governing body of a public agency . . . in order to make a decision or to deliberate 

toward a decision on any matter which results in an official action.” W. Va. Code § 6-9A-2(5). 

Discussions “by telephone conference or other electronic means” may constitute a “meeting.” Id.

The Board counters that, since the authority to close schools rested solely with Superintendent 

Hudson, its electronic discussions were not “meetings” under the Act because they could never 

have resulted “in an official action.”3 We agree.

Our boards of education are “created by statute with functions of a public nature,” and they 

“can exercise no power not expressly conferred or fairly arising from necessary implication, and 

in no other mode than that prescribed or authorized by the statute.” Syl. Pt. 2, in part, Napier v. 

Lincoln Cnty. Bd. of Educ., 209 W. Va. 719, 551 S.E.2d 362 (2001) (quoting Syl. Pt. 4, Shinn v. 

Bd. of Educ., 39 W.Va. 497, 20 S.E. 604 (1894)). West Virginia Code § 18-5-13 lists the powers 

boards of education may exercise, none of which include the right to decide whether to temporarily 

close schools. Instead, and as noted above, the Legislature specifically granted county school 

superintendents the exclusive authority to “[c]lose a school temporarily when conditions are 

detrimental to the health, safety or welfare of the pupils[.]” W. Va. Code § 18-4-10(5). Moreover, 

we have recognized that a county superintendent is the authority statutorily appointed to decide 

whether to temporarily close a school. See Dillon v. Bd. of Educ. of Mingo Cnty., 171 W. Va. 631, 

634, 301 S.E.2d 588, 591 (1983) (“Under W.Va. Code, 18-4-10, a county superintendent has 

authority to temporarily close a school[.]”). A school superintendent’s authority is “independent 

of the school board.” See Mullins v. Kiser, 175 W. Va. 56, 57, 331 S.E.2d 494, 495 (1985).

Because the Board did not have the authority to take official action regarding the temporary 

closing of the county’s schools, any conversation between the Board’s members and the 

Superintendent regarding the closing of Putnam County Schools (to the extent any such 

conversation occurred) was not a “meeting” as defined by the Act. See W. Va. Code § 6-9A-2(5).

Accordingly, we find no error in the circuit court’s dismissal of petitioner’s complaint.

Affirmed.

ISSUED: October 17, 2022

CONCURRED IN BY:

3 The Act defines an “official action” as “action which is taken by virtue of power granted 

by law, ordinance, policy, rule, or by virtue of the office held.” W. Va. Code § 6-9A-2(6).
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Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice William R. Wooton

DISSENTING: 

Justice Tim Armstead

Justice C. Haley Bunn

Armstead, J., dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral 

argument to thoroughly address the issues raised in this appeal. Given the broad authority granted 

to county boards of education by our Legislature in West Virginia Code § 18-5-1 (1945), which 

states, in part, “[e]ach county school district shall be under the supervision and control of a county 

board of education,” I believe a formal opinion of this Court is warranted, rather than a 

memorandum decision. This is especially important where, as here, the public’s access to potential 

decision-making deliberations of its government is called into question.

Our Legislature has embraced a policy of openness through the Open Meetings Act:

The Legislature hereby finds and declares that public agencies in this state 

exist for the singular purpose of representing citizens of this state in governmental 

affairs, and it is, therefore, in the best interests of the people of this state for the 

proceedings of public agencies [to] be conducted openly, with only a few clearly 

defined exceptions. The Legislature hereby further finds and declares that the 

citizens of this state do not yield their sovereignty to the governmental agencies 

that serve them. The people in delegating authority do not give their public servants 

the right to decide what is good for them to know and what is not good for them to 

know. The people insist on remaining informed so that they may retain control over 

the instruments of government created by them.

W. Va. Code § 6-9A-1 (1999). In examining this language, we have stated: 

From the legislative statement of policy and its constitutional 

underpinnings, it is clear this Court should accord an expansive reading to the Act’s 

provisions to achieve its far-reaching goals. A narrow reading would frustrate the 

legislative intent and negate the purpose of the statute. See State ex rel. Badke v. 

Village Board, 173 Wis.2d 553, 570, 494 N.W.2d 408, 414 (1993) (“[t]he 

fundamental purpose of the open meeting law is to ensure the right of the public to 

be fully informed regarding the conduct of governmental business”). Moreover, we 

are concerned a narrow interpretation of the Act would invite avoidance tactics. 

Thus, a court applying the law should “push [its coverage] beyond debatable limits 

in order to block evasive techniques.” Sacramento Newspaper Guild v. Sacramento 

County Bd. of Supervisors, 263 Cal.App.2d 41, 50, 69 Cal. Rptr. 480, 487 (1968).
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McComas v. Bd. of Educ. of Fayette Cnty., 197 W. Va. 188, 197-98, 475 S.E.2d 280, 289-90 (1996) 

(footnotes omitted).

Given the clear Legislative intent for the government to operate in a transparent manner 

and this Court’s precedents, I believe this matter should have been set for oral argument.

Accordingly, I respectfully dissent.

I am authorized to state that Justice Bunn joins in this dissent.