Members of West Virginia University’s Board of Governors met for more than three hours June 19, discussing the school’s budget, tuition and fees, capital projects, the coronavirus pandemic and a petition signed by more than 800 people calling WVU “systemically anti-Black.”
That’s according to a member who attended that meeting. None of the discussion took place in public, although the Board of Governors is a public body leading a public university with a $1.1 billion annual budget, including student tuition and state and federal taxpayer money.
Public entities in West Virginia may meet privately to discuss such issues as litigation and personnel matters. Open meetings laws typically allow private discussions, called “executive sessions,” for sensitive personnel or legal matters but operate under a premise that public bodies generally conduct business in the open based on the fact they use public money.
West Virginia’s law states: “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 be conducted openly, with only a few clearly defined exceptions.”
The board is scheduled to meet at 4 p.m. Friday, when members are expected to discuss “confidential legal, personnel, and deliberative matters” regarding the pandemic.
WVU plans to move students back onto campus starting in two weeks.
It is unclear whether the discussion will be public — another possible executive session is on the agenda.
In addition to the June 19 meeting, the board talked in private about COVID-19 for an hour and a half June 2, and the board voted in previous meetings to go into executive discussion to talk about the pandemic.
Tuition, budgets, the pandemic and hundreds of people denouncing WVU as racist and demanding change aren’t among the “clearly defined” exceptions written in the open meetings act.
Asked how WVU justifies privately discussing these matters, school spokeswoman April Kaull only said in an email that “as stated previously, the WVU Board of Governors operates within provisions of West Virginia Code. Meeting agendas, posted and publicly available, include Code authority related to potential executive sessions.”
“No formal decisions are made and no formal votes are taken during executive sessions,” she wrote. “When Board decisions are made or votes taken, they are always made in public with full transparency.”
The West Virginia Open Government Guide, written by two WVU professors for the Washington, D.C.-based Reporters Committee for Freedom of the Press, says that “unfortunately, many of the exemptions (called ‘exceptions’) specified in the Open Meetings Act are so broad that they are subject to abuse.”
“And,” the guide says, “even though a public agency cannot make a decision while in executive session, it is possible that everything but the actual decision will be made in an executive session and the reasons behind the decision will not be disclosed.”
The guide also says “there are no decisions of the West Virginia Supreme Court of Appeals interpreting any of these exceptions to the Act.”
The website of the West Virginia Ethics Commission, which doesn’t enforce the open meetings act but does provide government officials advisory opinions about its meaning, says: “A governing body must attempt to segregate the non-exempt portions from the exempt portions of its meeting unless segregation would make a coherent discussion impossible.”
A vote to go into executive session “must state in plain language the grounds for convening an executive session.”
When WVU board members vote to go into executive session, they reference the specific exemptions in the open meetings act but provide little detail on how what they will discuss meets those exemptions. In the case of the black community’s concerns and other issues, like a discussion about athletics, board members did not state beforehand that those subjects would be discussed.
Seven minutes into the June 19 meeting, the board voted to move to a private line and blocked the public from the discussion that followed, some of it centered on race two days after the school received the petition charging prevalent racism on campus.
“We ... discussed at some length the expressed concern and demands by the black community on our campus and the protests that we heard loud and clear,” board member Elmer Coppoolse said.
But it wasn’t until about 4:30 that afternoon that the public could hear Coppoolse’s explanation of what was discussed. And it only got to hear what Coppoolse was willing to share.
West Virginia’s open meetings law stipulates that “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.”
WVU board Chairman David Alvarez spoke briefly about WVU’s response to racism but after the private discussion occurred.
Other topics included in the private discussion were a talk with the athletic director about the “outlook for this upcoming season;” the business college; emergency pay policy; and federal Title IX regulations, which deal with issues that include the handling of sexual assault cases.
During the June 2 meeting, the board voted to talk privately just two minutes after the session began.
“We received an update from management on planning scenarios for the fall,” Alvarez said when the meeting reopened to the public.
“The leadership of the university has made great progress in planning for the fall — including both from an academic and an operational perspective — as we look to take steps to provide a reasonable, safe and effective set of requirements and capabilities for a successful on-campus fall,” Alvarez said. “Management is preparing to make a series of announcements in the coming days relating to our next steps.”
The meeting then ended.
The public did not observe the possible board response to initial plans presented by university administrators during the private portion of the meeting, or whether feedback from board members altered the plans before they were announced publicly in the following days.
Board members spent two-and-a-half hours meeting privately May 1 discussing, among other things, according to the agenda, “matters regarding 2020-21 academic year and budgets” and “legal, personnel, and deliberative matters relating to West Virginia University’s ongoing response to the COVID-19 pandemic.”
“As one might expect in these times,” board member Marty Becker said afterward, “most of our discussion dealt with the various ramifications taking place as we deal with this pandemic and its impacts on the university.”
“I will say the committee was quite impressed with the level of planning and preparedness the university leadership team has been undertaking in their plans and actions regarding the whole COVID-19 situation, it was very well presented,” Becker said. “There were no votes taken, no actions taken, all will be dealt with at later times.”
The May 1 and June 19 executive sessions were during meetings of committees of the board. Those panels are bound by the same open meetings law the full board is.
On both dates, two committees met together for the secret discussions. A combined 14 of the full board’s 17 members serve on the committees.
To read the agenda for Friday’s meeting and see how to listen in, visit https://bog.wvu.edu/agendas.