How much did Justice weigh on consolidation decision? Plenty, judge concluded

CHARLESTON, W.Va. — How much did Gov. Jim Justice influence the state school board’s decision to override a consolidation proposal by a local school system in favor of a struggling community?

That was a theme — although not the specific legal grounds — that ran through a case in the court system this summer.

Circuit Judge Duke Bloom, issuing a decision late last week that the state school board overstepped its authority, based his position on the state Constitution, state law and the state board’s own rules.

But Bloom’s decision also said Justice’s influence was clear. The judge referred to hours of July 11 testimony by state Superintendent of Schools Steve Paine and all the state board members — most of whom were named by Justice.

MORE: Read Judge Bloom’s ruling in the Nicholas consolidation case.

“Moreover, testimony from the July 11, 2017, hearing indicated that the state Superintendent knew from the Governor’s State of the State address that the governor wanted a school in Richwood,” Bloom wrote.

“Board President Campbell knew that the Governor’s heart was in community schools. Board Vice President Perry told a friend weeks before the Nicholas Co. BOE’s CEFP (consolidation) amendment was even considered by the State Board that “Nicholas was going to lose” because “that’s what the governor wants.”

Bloom concluded, “Such testimony lends support to the Petitioner’s theory — WVBE members constructed arbitrary and pre-textual justifications to deny the NCBOE CEFP amendment.”

The state school board gets yet another crack at the issue this Thursday during its regularly scheduled board meeting. The board’s agenda already says the Nicholas County issue will be discussed during an executive session, although no action will be taken coming out of that session.

One possibility is the board may pursue an appeal to the state Supreme Court.

The state board twice rejected the Nicholas County schools consolidation decision, saying the local board members didn’t go deeply or broadly enough in considering community opinion. That put the case into Bloom’s courtroom.

On Monday, during a press conference about a range of issues, Justice was asked to react to the ruling. He again made it clear that he wishes Richwood could have its own school. But some of his comments seemed to recognize the limits of his power.

“Like I said before, if I had my d’rathers, there’d be a school in Richwood,” Justice said. “And there’d be a school in all our communities. I don’t like consolidation because I think it kills our communities.

“But that’s why we have a state board of education, and that’s why they have courts and they make decisions and everything. That’s where I’m not supposed to nor do I weigh in on that.”

Justice said the technological ability of current times better enables smaller communities to make their schools efficient and excellent.

“So I really — I see it, especially with this day and time to where we have so many means through the internet or whatever to bring things into school and not have to move the students to the technical capabilities.”

He went on to again describe his dislike of consolidation.

“But I just hate it. It’s just another nail in West Virginia’s coffin every time we have to consolidate and save a buck. And we have the death of another community here and there, and I don’t like it,” he said. “I just don’t like it.”

Richwood High and Middle and Summersville Middle were destroyed in last summer’s devastating West Virginia floods. For now, students are learning in portable classrooms.

The Nicholas County board prefers a plan to use disaster recovery money from the Federal Emergency Management Agency to consolidate schools on a single campus.

The school system hopes to work under FEMA’s “428 program” that would allow consolidation of grant funds into one pot to be used for projects outside the scope of direct replacement.

Under that proposal, the county would combine five schools at one campus at Glade Creek Business Park in the Summersville area. The schools are Richwood High and Middle Schools, Summersville Middle, Nicholas County High School, and the county’s vocational school. The new facility is expected to cost $130 million.

The county has already received a six-month extension on a FEMA deadline, running out in December now, to work through differences with the state.

The battle could still continue.

A response filed ahead of Bloom’s decision by lawyers for the state school board said claims of interference by state leaders in the school consolidation issue were overstated.

The Nicholas County school board “has attempted to pose red herrings like ‘political pressure’ and notions that the WVBE has completely abandoned Policy 6204 to consider wild, unexpected issues in an attempt to draw attention away from the core issues in this case,” wrote Kelli Talbott, senior deputy attorney general.

Richwood Mayor Bob Henry Baber put out a statement after the release of Bloom’s decision pushing for a Supreme Court appeal.

“Let us all hope that the WVBOE appeals and the WV Supreme Court overrules the NCBOE’s ‘Suit to Loot’ two wonderful schools with the help and aid of FEMA,” Baber stated.

Baber accused Bloom of not taking community sentiment into account in the context of flood devastation and recovery.

“His ruling is as cold as grave digger’s tools in January,” Baber said.

Bloom’s main conclusion was that state school board members relied too much on their own perspective, rather than on principles spelled out in state code and their own guidelines — particularly one referred to as Policy 6204, which directs local boards to hold public hearings and provide justification based on enrollment, facilities, finance, personnel, transportation and educational program.

Bloom’s ruling pointed to various reasons given for votes to reject the Nicholas County consolidation plan:

  1. Thomas Campbell, President of the State Board, testified that he voted to reject the Nicholas Co. BOE’s CEFP amendment because of a lack of community outreach and collaboration even though he conceded that Policy 6024 did not expressly require community outreach and collaboration. Importantly, Mr. Campbell also conceded that local school boards are in a better position than the State Board to understand what the local community wants and needs.
  2. David Perry, Vice President of the State Board, testified that he believed he could consider ‘criteria’ other than that contained in Policy 6204 and that he voted to reject the Nicholas Co. BOE’s CEFP amendment because of the lack of ‘meaningful dialogue’ and other factors not mentioned in Policy 6204 like where the money is coming from, specific site considerations and the benefits of community schools.
  3. State Board member Debra K. Sulivan did not believe, based upon her reading of public hearing transcripts, that the Nicholas Co. BOE did not consider in detail the impact of consolidation on extracurricular activities. Mrs. Sullivan was also concerned about “parent involvement and was in favor of smaller community schools.
  4. State Board member Frank Vitale did not believe that the Nicholas Co. BOEdid “enough” to solicit in put from their community.
  5. State Board member Jeff Flanagan did not believe that the Nicholas Co. BOE provided enough detail about potential sites or funding even though he conceded that he did not know if Policy 6204 required the county board of education to provide details about sites and funding. Mr. Flanagan further testified that he did not completely read the NCBOE closure documents.
  6. State Board member Miller L. Hall believed that the Nicholas Co. BOE should have considered how consolidation impacts student discipline even though he admitted that discipline is not a factor contained in Policy 6204.
  7. State Board member Frank Scott Rotruck wanted the Nicholas Co. BOE to consider other community school type options.

Bloom concluded the state board acted arbitrarily in rejecting the local school board’s consolidation plan.

“In this case,” he concluded, “the State Board did not follow its own rules and procedures set forth in Policy 6204 and rejected the NCBOE Consolidation Plan based on multiple factors, none of which are contained in Policy 6204.”

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