An unsworn member does not count toward a legal meeting quorum.
Under West Virginia law, when an elected or appointed official fails to take the required oath of office, it is legally categorized as a "failure to qualify," which effectively creates a vacancy for that seat. According to guidelines from the West Virginia Ethics Commission, vacant positions are not calculated when determining a quorum,.
Furthermore, West Virginia Code § 6-1-7 explicitly prohibits any person from exercising authority or discharging the duties of an office before taking the oath,. Because a legal meeting requires a quorum to deliberate or make decisions, and an unsworn individual is legally barred from voting or participating in deliberations, their physical presence cannot contribute to the functional capacity required to form a quorum,.
To illustrate how this calculation works:
- If a five-member board has three individuals physically present, but one of them is unsworn, that unsworn seat is treated as a vacancy.
- This reduces the board's active constituent membership to four.
- A simple majority of a four-member active board still requires three qualified members.
- Because only two sworn, qualified members are present, a legal quorum does not exist.
Under these circumstances, the governing body lacks the jurisdiction to act, and any official decisions made would be legally defective and subject to nullification by a circuit court,.
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Based on the provided documents, an unsworn individual cannot attend an executive session in the capacity of a board member, though the board could theoretically invite them to attend as a private guest.
Here is how the law applies to this situation:
Prohibition on Acting as a Member Under West Virginia Code § 6-1-7, an individual who has failed to take the oath of office is legally prohibited from "entering into the office" or exercising any of its authority. Because their seat is legally treated as a vacancy, an unsworn person is expressly forbidden from deliberating toward a decision or casting a vote. Since executive sessions are designed for the "discussion of sensitive items" by the governing body, an unsworn individual has no legal right to participate in those official deliberations or attend as a recognized member.
Attendance as an Invited Guest While they cannot attend or deliberate as an official board member, governing bodies do have the discretion to allow private citizens into closed executive sessions. For example, during a December 17 special meeting, the Pocahontas County Solid Waste Authority voted to go into an executive session and specifically allowed private business owners Jacob and Malinda Meck to attend, while excluding other local officials.
Therefore, an unsworn member could only attend an executive session if the active, legally sworn quorum of the board specifically permits them to enter as a private citizen or guest, rather than as a seated official.
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Based on the provided meeting minutes and records from the last ten years (June 2016 to June 2026), here is the chronological list of all the Pocahontas County Solid Waste Authority meetings where David Henderson’s attendance is explicitly confirmed:
2020
- October 28, 2020 (Regular Meeting)
- December 2, 2020 (Regular Meeting)
2021
- January 27, 2021 (Regular Meeting)
2022
- June 13, 2022 (Special Meeting)
- October 26, 2022 (Regular Meeting)
2023
- January 12, 2023 (Special Meeting)
- January 18, 2023 (Special Meeting)
- January 25, 2023 (Regular Meeting)
- March 22, 2023 (Special Meeting)
- March 29, 2023 (Public Hearing)
- March 29, 2023 (Regular Meeting)
- April 26, 2023 (Regular Meeting)
- July 26, 2023 (Regular Meeting)
- August 30, 2023 (Regular Meeting)
- September 27, 2023 (Regular Meeting)
- October 11, 2023 (Special Meeting)
- October 25, 2023 (Regular Meeting)
- December 6, 2023 (Regular Meeting - attended via teleconference)
2024
- March 27, 2024 (Public Hearing)
- March 27, 2024 (Regular Meeting)
- April 24, 2024 (Regular Meeting)
- June 26, 2024 (Regular Meeting)
- August 14, 2024 (Special Meeting)
- August 28, 2024 (Regular Meeting)
- September 25, 2024 (Regular Meeting)
- November 19, 2024 (Special Meeting)
- December 4, 2024 (Regular Meeting)
2025
- January 21, 2025 (Special Meeting)
- January 29, 2025 (Regular Meeting)
- February 26, 2025 (Regular Meeting)
- March 26, 2025 (Public Hearing)
- March 26, 2025 (Regular Meeting)
- April 23, 2025 (Special Meeting)
- April 30, 2025 (Regular Meeting)
- May 28, 2025 (Regular Meeting)
- June 25, 2025 (Regular Meeting)
- July 16, 2025 (Special Meeting)
- July 30, 2025 (Regular Meeting)
- August 27, 2025 (Regular Meeting)
- September 24, 2025 (Regular Meeting)
- October 15, 2025 (Special Meeting)
- November 5, 2025 (Special Meeting - attended via teleconference)
- November 13, 2025 (Special Meeting)
- December 3, 2025 (Public Hearing)
- December 3, 2025 (Regular Meeting)
- December 17, 2025 (Special Meeting)
2026
- January 28, 2026 (Public Hearing)
- February 4, 2026 (Special Meeting)
- February 18, 2026 (Special Meeting)
- February 25, 2026 (Regular Meeting)
- March 10, 2026 (Special Meeting)
- March 19, 2026 (Special Meeting)
(Note: Prior to 2020, there are several meetings mentioned in the sources, but the provided excerpts either list him as absent or omit the roll call pages confirming attendance).
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David Henderson took his current oath of office on March 31, 2026. This oath is for a four-year Public Service Commission appointment to the Pocahontas County Solid Waste Authority, with his term set to expire on June 30, 2027.
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If a governing board acts without a legal quorum, the primary penalty and remedy under West Virginia's Open Governmental Proceedings Act (OGMA) is the nullification of the body's decisions. Because a meeting without a quorum does not legally exist, any decision reached during that gathering is considered legally defective and voidable. A circuit court has the authority to declare any action taken in violation of the Act to be completely void and overturned.
Beyond the nullification of their actions, there are also potential financial and legal penalties. If the board commits willful violations of the Open Meetings Act, it can result in civil or criminal penalties. Furthermore, a court may order the governing body to pay the attorney fees and expenses of any party that successfully challenges the violation in court.
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Under most state open meetings laws and standard parliamentary procedure (such as Robert’s Rules of Order), if a public body calls a meeting and no quorum is present, the gathering is not legally considered a "meeting" capable of transacting public business.
However, how it is treated depends on whether you are looking at it through the lens of legal authority or procedural transparency.
1. The Legal Definition: No Quorum = No "Meeting"
Most open-door and sunshine laws define a public "meeting" as the convening of a quorum of a governing body to deliberate or take action on public business.
The Rule: If a quorum fails to appear, the legal threshold to establish a meeting has not been met.
The Result: The public body lacks the legal authority to open a floor, debate issues, or vote. Any votes taken or actions decided without a quorum are completely null and void.
2. What the Members Present Can Do
When a public body realizes it lacks a quorum, the members who did show up cannot simply proceed with the agenda. Under standard parliamentary procedure, they are restricted to only a few specific, administrative actions:
Fix the time to adjourn: Set a date and time for the next attempt.
Adjourn: Formally end the gathering.
Recess: Pause briefly to see if missing members arrive.
Take measures to obtain a quorum: Direct staff to contact absent members to compel their attendance.
3. The Public Record (Minutes & Notice)
Even though it isn’t a legal "meeting" for business, it cannot be treated like it never happened if it was officially noticed to the public:
Minutes Must Be Kept: A record must still be generated. The minutes should reflect the date, time, and location, explicitly list which members were present and absent, and state that the meeting was immediately adjourned due to the lack of a quorum.
Public Access: Because the meeting was advertised, the public has a right to be there to witness the failure of the quorum and the subsequent adjournment.
⚠️ The "Walking Quorum" Caveat
While a gathering of less than a quorum generally exempts the group from open meeting requirements, public officials cannot use the lack of a quorum to circumvent the law.
If a smaller sub-group of members uses the occasion to informally discuss public business, or if members hold a series of back-to-back discussions in small groups (often called a "walking quorum" or "serial meeting"), courts routinely rule this a violation of transparency laws if the intent or effect is to build a consensus outside of the public eye.
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No. Under standard parliamentary law (Robert’s Rules of Order) and most state open meetings laws, a public body cannot legally conduct or open a public hearing without a quorum present.
If a quorum is missing, the gathering is procedurally powerless. Here is how this breaks down:
1. A Hearing Requires Collective Authority
A public hearing is an official proceeding of the governing body, mandated by law to gather evidence, testimony, or public comment before making an official decision (such as a budget approval, zoning change, or ordinance adoption).
Because the legal obligation to hold the hearing is assigned to the body as a collective entity, a quorum must assemble to exercise that authority. Without a quorum, the board does not legally exist in that moment to "receive" the public's input.
2. What Must Happen Instead
If members of the public show up for a scheduled hearing but the board lacks a quorum, the members who are present are restricted to the same limited administrative actions as a regular meeting:
They must officially convene only to recognize the lack of a quorum.
They must announce that the hearing cannot be held.
They must formally vote to adjourn and continue (reschedule) the hearing to a specific future date and time.
3. The Consequences of Proceeding Anyway
If the remaining members decide to stay and "listen to the public anyway" under the guise of an unofficial hearing, it carries serious legal risks:
The hearing is invalid: The public body will generally be forced to re-notice and re-hold the entire public hearing from scratch at a later date when a quorum is present.
Procedural Violations: Taking public testimony without a quorum to formally record it into the official minutes can invalidate any subsequent votes or actions the board takes on that topic at future meetings, as the statutory requirement for a valid public hearing was never met.
The Sole Exception: The only time a hearing can occur without a quorum of the governing body is if a specific statute explicitly permits a staff member, a single hearing officer, or a designated subcommittee to conduct the hearing independently to gather facts on the board's behalf. Barring that specific statutory carve-out, no quorum means no hearing.
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Question: Must there be a public hearing before the fee increase can go in effect?
Answer: No quorum means no hearing--no hearing means no fee increase!
