Judge: Nicholas School Board Meetings On Mergers Did Not Violate Laws 

CHARLESTON GAZETTE-MAIL, (By: Ryan Quinn) – A judge ruled Friday that the Nicholas County school board didn’t violate state open-meetings laws when deliberating on and deciding to consolidate Richwood Middle, Richwood High and Summersville Middle schools, which all closed after last June’s floods.

Circuit Judge James Rowe denied consolidation opponents’ request for an injunction blocking the consolidation, saying in his ruling that there was “no convincing evidence” that can prove “secret meetings” took place.

Supporters of rebuilding Richwood’s schools in the Richwood area, including the Richwood High School Alumni Association and the schools’ choir director and assistant band director, filed the lawsuit in February against the board and Nicholas schools Superintendent Donna Burge-Tetrick. The lawsuit alleged that they intentionally violated the laws.

The county school board plans to use Federal Emergency Management Agency flood recovery money to build the campus, rather than using that money to rebuild Richwood Middle, Richwood High and Summersville Middle schools.

The consolidated campus, at the Glade Creek Business Park, would merge those three schools with two that didn’t close because of floods: Nicholas County High, in Summersville, and the county’s vocational education center, in Craigsville.

The Glade Creek Business Park is about 40 minutes from the Richwood schools. The consolidated campus is planned to include one middle school and one high school. They would be Nicholas’ only middle and high schools. The high school would incorporate the county’s vocational education.

Richwood would be left with one school: Cherry River Elementary.

Although rumors of consolidation were swirling months before, it wasn’t until January that Burge-Tetrick officially recommended consolidation to the board. The board then held the legally required public hearings on the proposed school closures. The last two hearings, at Richwood High and the vocational center, drew about 250 people each.

Almost without exception, speakers at the 3½-hour Richwood High closure hearing denounced the consolidation plan. Supporters of rebuilding Richwood’s schools in the Richwood area also appeared to be in the majority at the vocational center hearing, although several consolidation supporters did speak.

The board voted 5-0 on March 7 to consolidate.

If the consolidation moves forward after Friday’s decision, the Nicholas board will still have to get approval from the state Board of Education for the related school closings.

Although students of the three flood-closed schools are learning in different locations, those three schools still legally exist as distinct entities, and the state school board must sign off on their closings for Nicholas to build its consolidated campus.

According to transcripts of depositions taken as part of the lawsuit, Nicholas board members said they did attend meetings with FEMA employees outside of publicly noticed open board meetings. School officials indicated that board members were purposefully avoiding having three members at any one of the non-noticed meetings. According to Friday’s ruling, this could be perceived in either two ways: an attempt to circumvent the open-meetings law or a way to avoid violating it.

“Such conduct does raise suspicions and creates the appearance of potential violations of the Act,” the ruling reads, but, without “actual evidence,” the court cannot act.

“There were a couple of us that went with the superintendent and the engineers and physically looked at sites, both for modulars and for permanent sites — to no avail — in Richwood and the Craigsville area,” board member A.J. Rogers said in his deposition.

Three members constitutes the majority, or quorum, legally required on a five-member school board to take action or deliberate toward a decision requiring action. Publicly noticed open meetings are required for board action and, generally, also are required for deliberation toward that action.

Even discussions about an issue among less than a majority of members could be a violation when those discussions, in total, include a majority of members, according to a 2007 state Committee on Open Governmental Meetings opinion.

Among other allegations, the lawsuit’s complaint argued that Burge-Tetrick “met individually or in small groups with each of the Board’s members to discuss and deliberate on closing and consolidating Richwood Middle and High Schools with schools in Summersville.”

Burge-Tetrick said in her deposition that she had “no idea what they were going to do.”

Board member Fred Amick said he didn’t know how he’d vote until 3 a.m. March 7, the date of the vote to consolidate. Rogers said he didn’t know that he would vote for the consolidation until that night.

The open-meetings laws do say some gatherings of even a quorum of board members don’t meet the definition of a “meeting” requiring public notice. These include gatherings where “public business is discussed but there is no intention for the discussion to lead to an official action.”

The May 9 final hearing on the case involved plaintiffs testifying on the witness stand about board member Darrell White’s post-vote comments, about a prepared motion that board President Gus Penix read before a vote and an alleged board member gathering at a Bob Evans restaurant.

White also testified that, on March 7, he had a related, non-publicly noticed teleconference discussion.

He said the teleconference was with FEMA and state School Building Authority representatives, to get questions answered related to the proposed consolidation. Penix also was part of the teleconference, White said.

White also said board members communicated in the wake of the June 2016 flood about recovery issues, but said no decisions were made.

Staff writer Caity Coyne contributed to this report. Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow @RyanEQuinn on Twitter.

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