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First test of bill requiring legislative approval of West Virginia education rules underway

Kelli Talbott, general counsel for the West Virginia Department of Education, told the state Board of Education Monday that approval of a new rule setting design standards for school transportation vehicles was the first step in challenging a law passed by the Legislature earlier this year that attempts to take away the state board’s rule-making authority. (Photo courtesy of West Virginia Department of Education)

CHARLESTON — A showdown could be possible between the West Virginia Board of Education and the Legislature over whether lawmakers have any legal authority to approve or reject rules approved by the state board.

The board announced Monday afternoon that it was planning to sue Secretary of State Kris Warner after the board approved Policy 4334, West Virginia Design and Equipment Requirements for School Transportation Vehicles, during a special meeting earlier in the day.

According to a press release, the state board said the Secretary of State’s Office rejected the submitted rule, which would have gone into effect 30 days from Monday. It would have applied to all 55 county school systems, the West Virginia Schools for the Deaf and the Blind and the West Virginia Schools of Diversion and Transition and set specific design and equipment standards for school buses and other modes of transportation used by schools.

The rule was first approved by the state board on May 14 and put out for a 30-day public comment period, with only two comments received.

“In full transparency, this board voted nine to nothing to file policy 4334 in the same manner in which we have filed all policies with regards to the Secretary of State’s office,” said Paul Hardesty, chairing his first state board meeting since being elected to a second term as its president last week. “I think there’s no need for me to say anything further on the matter. … That is our action for today and I’m sorry I don’t have much more to add to that but it basically … is what it is.”

Traditionally, the next step for the board is to file the final rule with the Secretary of State’s Office to be included in the State Register, a weekly online publication which provides information on approved and pending legislative rules. State code also requires the final rule to be submitted to the Legislative Oversight Commission on Education Accountability. But rules approved by the state board could only be reviewed by lawmakers.

However, a new state law passed by the Legislature during the 2025 regular session upends the state Board of Education’s rule-making authority.

“We have these policies come before the board on a regular basis, during your regular meetings particularly, and it’s almost a routine, but today, the reason this policy is being taken up is actually not routine,” said Kelli Talbott, general counsel for the state Department of Education.

House Bill 2755, which went into effect on Friday, requires that all legislative rules enacted by the board must first be authorized by the Legislative Oversight Commission on Education Accountability. The proposed rules would then be submitted to the full Legislature for review, which could result in approval, amendment or rejection.

HB 2755 passed the House of Delegates on March 20 in an 84-12 vote. The state Senate approved the bill on April 10 – two days before the end of the 60-day session – in a 19-15 vote. However, Gov. Patrick Morrisey did not sign or veto the bill, which allowed it to become law without his signature.

In May, the state board voted to begin pursuing litigation to contest the constitutionality of HB 2755, though no lawsuit had been filed to date. Monday’s action by the state board on Policy 4334 will likely become the test case.

“Today, we’re here taking the next step in that process, and so by voting to file it with the Secretary of State with an effective date, you’re challenging the purported requirements of House Bill 2755,” Talbott told board members.

Supporters of HB 2755 cite Article 12 of the West Virginia Constitution, which states that “the Legislature shall provide, by general law, for a thorough and efficient system of free schools,” and placing the supervision of the school system with the state board “…which shall perform such duties as may be prescribed by law.”

Yet, a 1988 decision by the West Virginia Supreme Court of Appeals in West Virginia Board of Education v. Hechler determined that a 1983 law requiring legislative approval of state board rules was unconstitutional.

“Of course, the board’s position is and has been that House Bill 2755 is unconstitutional,” Talbott said. “Indeed, you guys will recall during the legislative session that there were legislators and legislative counsel who said as much on the floor during committee meetings, admitted that it was unconstitutional.”

In both 1989 and 2022, the Legislature adopted joint resolutions to place on general election ballots constitutional amendments to give education rule-making approval to the Legislature, but voters rejected both. The 2022 proposed constitutional amendment failed in a 58%-42% vote.

“In this year, the Legislature passed House Bill 2755 and ignored Hechler, ignored the vote that was taken in 2022, and it is our position that you should vote to file this rule with a 30-day effective date with the Secretary of State so that we can pursue the next steps in this process,” Talbott said.

In a statement Monday afternoon Secretary of State Chief of Staff Donald “Deak” Kersey said the secretary’s role in rule-making is ministerial by hosting the database, publishing the State Register, assisting state agencies with deadlines. But the office was bound by the new law unless a court intervenes.

“We want to acknowledge that the separation of powers doctrine requires the Secretary of State to follow the law passed by the Legislature, as the Secretary of State’s role here is mostly ministerial,” Kersey said. “Importantly, only the judicial branch has authority to weigh in on questions of constitutionality. We are reviewing the BOE’s position, HB 2755, and we will communicate with them accordingly.”

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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