by Ron Gregory
CHARLESTON — In a unanimous decision Tuesday, the West Virginia Supreme Court of Appeals reversed a lower court ruling that promised to bring school consolidation to Nicholas County.
The case was heard on oral arguments October 3, with the decision coming one week later. Justice Margaret Workman issued the opinion of the court with Chief Justice Alan Loughry writing a concurring opinion.
Essentially, the high court did not buy the decision by Kanawha County Circuit Judge Duke Bloom that the state board has established criteria for consolidation approval. Lawyers for the Nicholas County Board of Education had argued throughout the process that the met the requirements set by the state for consolidation of Richwood High, Richwood Middle and Summersville Middle into one school to be located with a vocational-technical school.
The issue arose after Richwood, in particular, and other portions of Nicholas County received what has been labeled a “thousand-year flood” in 2016. The flood waters essentially destroyed the Richwood schools and damaged the Summersville Middle properties.
Initially, it appeared that the local school board would work with the Federal Emergency Management Agency (FEMA) and Richwood officials to assure that their flooded schools were replaced by new buildings in Richwood.
After some months, however, Richwood officials, particularly Mayor Bob Henry Baber, began to voice concerns about the plans. Some accused the county board, FEMA and the county Superintendent of Schools Donna Burge-Tetrick with conspiring to move all Nicholas County middle and high school students to a campus nearer Summersville.
Eventually, the county board voted to do just what Baber expected: move the three schools to the Summersville-preferred location. The state board refused to approve that plan and the county appealed the decision. Bloom basically accepted the county’s argument that, if the written reasons for consolidation were met, the state’s role in approving is merely ministerial. He also agreed with the county’s argument that the decision by the state board was “arbitrary and capricious.”
County officials had argued that Governor Jim Justice, who has publicly stated his desire to see the schools remain in Richwood, exercised influence on the state board decision.
“Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the WVBOE is vested with constitutional, statutory and regulatory authority to exercise its decretion” in approving or rejecting consolidation plans, Workman wrote.
Workman went on to say that “Burge-Tetrick purportedly considered numerous alternative site locations for Richwood Middle School and Richwood High School, none of which she found suitable. After purportedly exploring these alternative locations, (the superintendent) recommended to the board that it consolidate (the Richwood and Summersville school), along with the Career and Technical Education Facility, to be located together on a consolidated campus.”
With regard to the state board decision, Workman wrote that the justices found that “the thoughtful and well-supported rationales offered by the WVBOE members objectively pertain to the feasibility, desirability and efficacy of consolidation.” That, she said, led them to disagree with Bloom’s ruling that the decision-making process was “arbitrary and capricious.”
She continued, citing a previous case, “neither we nor the circuit court can substitute our judgment on this issue for that of the professional educators and administrators charged with the promulgation and implementation of state educational policy.”
Senior Deputy Attorney General Kelli Talbott argued the case for the state board while Kenneth Webb of the Charleston law firm Bowles Rice represented the county board before the supreme court.
While concurring in total with the decision of the other justices, Loughry wrote in his opinion that nobody should be considered a “winner” or “loser” in the case. “While the Nicholas County Board of Education may understandably view this decision as a defeat, such a viewpoint is short-sighted,” he wrote. He added, “The decision of the WVBOE … is simply that there is more work to be done to determine the best solutions for these schools.”
While celebrating the decision as “a great day for Richwood,” Baber said he believes all parties are now open to dialogue. “I’ve already heard some encouraging words from those who favored consolidation,” he said. “It’s time for all of us to stand together and solve the problems this flood brought to our city.”
Baber remains embroiled in a dispute with Richwood city council, who has insisted it has exercised the right to place the mayor on “paid administrative leave.” In doing so, they consistently agree that they lack the charter or state law support for such action but one council leader has said, “he’s on administrative leave until we take him off or a court enters an injunction (returning Baber to the job).”
For his part, Baber has retained legal counsel and said he is still “considering the next step. I wish we could work together on this.”
Council leaders cite some questions about Baber’s handling of a state-issued purchasing card during the state of emergency as the reason for their concerns.