MORGANTOWN -- The West Virginia Board of Education conditionally approved Friday the Nicholas County Board of Education’s plan to consolidate schools in Richwood, Summersville and Craigsville into a campus near Summersville.
Heather Hutchens, general counsel for the state Department of Education, said the conditional approval will be withdrawn if the state Supreme Court grants the state school board’s requested stay of Kanawha County Circuit Court Judge Duke Bloom’s order for it to give the conditional approval or post a $130 million bond. Without a stay or other temporary relief from the high court, Hutchens said the conditional approval would be withdrawn if the Supreme Court ultimately overturns Bloom’s decision.
“At the time of the making of my motion, there has been no ruling from the Supreme Court,” state board President Tom Campbell said shortly before the vote at about noon Friday. “The West Virginia Board of Education continues to maintain that it acted in the best interest of the students of Nicholas County and within the scope of its broad constitutional authority.”
The state board gave the conditional approval, in a voice vote with no nays heard, at a rare meeting outside of Charleston. The state board voted at the West Virginia University president’s home in Morgantown, after spending about an hour in closed session Thursday and 20 minutes in another closed session Friday.
The state board claimed both closed sessions were legally allowable due to an open meetings exemption for attorney-client privilege or for personnel matters.
Bloom issued a written order Wednesday saying his Aug. 18 ruling, which reversed the state board’s earlier denial of the consolidation, “should remain in effect” during the state board’s appeal so the Nicholas school board could move forward with the state School Building Authority and the Federal Emergency Management Agency “to obtain required approvals and to compile and provide the information needed to receive an award of FEMA section 428 monies by the end of this year.”
The Nicholas board plans to use FEMA recovery money from the June 2016 flood, which damaged Richwood Middle, Richwood High and Summersville Middle, to build the consolidated campus. That money could instead rebuild those three schools, whose former buildings have been closed since the flood.
The proposed consolidated campus would combine those three schools with Nicholas County High and the county’s vocational education center, neither of which closed following the flood.
The state board denied the Nicholas board’s plan on June 13, and on June 27, the Nicholas board filed a lawsuit against the state board and state Schools Superintendent Steve Paine, alleging, among other things, that the denial was arbitrary.
On Aug. 18, Bloom reversed the denial.
Last week, the state board and Paine asked Bloom to stay his Aug. 18 ruling until the Supreme Court ruled on their appeal of his order. The state board argues, among other things, that the state Constitution gives it the right and duty to approve or disapprove consolidation plans on their merits, not just on whether local school boards followed procedures in creating them.
At the end of a hearing Tuesday on the request for Bloom to stay his own ruling, Bloom ordered the state board to at least conditionally approve the consolidation plan this week, or post the $130 million bond Monday to cover the possible loss of that much FEMA funding for the Nicholas board’s plan.
That $130 million figure has been stated as the estimated cost of the consolidated campus. Nicholas public schools Superintendent Donna Burge-Tetrick has said the costs of buying the property for the campus and preparation of the site for construction aren’t part of the $130 million estimation — she said the $130 million figure was just to construct the buildings.
On Thursday, the state board and Paine then asked the Supreme Court to stay Bloom’s order before the end of Friday. Senior Deputy Attorney General Kelli Talbott, representing the state education officials, asked in a court filing for the high court to approve a stay “without the bond on which the September 6 Order is conditioned, which is unprecedented and in direct violation of governing statutes.”
In the filing, Talbott also wrote that the state has requested an extension of the Dec. 26 application deadline -- a deadline already supposedly pushed back from June of this year -- for the Nicholas public school system to receive a type of FEMA money called “428” funds for school rebuilding plans.
Those plans could include the Nicholas board’s plan, or consolidating schools in different configurations, such as by creating a consolidated Richwood Middle/Richwood High in the Richwood area.
Talbott also wrote in the filing that the Nicholas board “made clear” that “it was not willing to develop an alternate plan” that could still be submitted to FEMA in time to receive 428 funds in case the state board wins the appeal.
“By refusing to take any contingency steps by developing an alternate plan, Nicholas County has made it increasingly unlikely that it will be able to submit a timely application for 428 funding at all in the (likely) event that the WVBE prevails in this appeal,” Talbott wrote, using the abbreviation for the West Virginia Board of Education. “An immediate stay is necessary because the circuit court’s injunction -- which effectively blesses Nicholas County’s gamble with funds that could make a significant different [sic] for Nicholas County’s schoolchildren -- may very well cost the State any FEMA funding that would otherwise be available.”
Talbott argued that the state board voting to conditionally approve the Nicholas board’s plan may make the School Building Authority, whose board has yet to vote on whether to approve the plan, “more likely to provide its blessing” for the Nicholas board’s plan, thus allowing the Nicholas board to proceed with its FEMA funding application to a possible point at which, even if the Supreme Court rules in the state board’s favor, it may be too late.
She argued a Supreme Court stay would actually help the Nicholas board by requiring it “to take the prudent step of continuing to develop the alternate consolidation plan now, thus preserving its ability to apply for 428 funding no matter how this appeal is resolved.”
“Any timing crunch in terms of Nicholas County’s ability to file a 428 funding application after this appeal is a crisis of Nicholas County’s own making,” Talbott wrote. “The WVBE disapproved Nicholas County’s proposed plan in June; rather than beginning to work up an alternate plan at that time, when the application deadline did not loom so close, Nicholas County refused to consider any option other than its preferred approach. Indeed, even now it is likely not too late for it to begin this process -- but the same likely will not be true after this appeal is resolved.”
She continued on to write that “granting a stay would not cause Nicholas County to lose potential federal funding; that risk flows from Nicholas County’s own refusal to account for the possibility that it may lose this appeal. The Court should not place its imprimatur on this gambit.”
As of about 5 p.m. Friday, the Nicholas board hadn’t filed any response motions before the Supreme Court.
Reach Ryan Quinn at email@example.com, 304-348-1254, facebook.com/ryanedwinquinn or follow @RyanEQuinn on Twitter.