Simple Math: An unsworn member does not count toward a legal meeting quorum.

 

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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