Parents of Richwood children intend to drop their request that a Kanawha County judge invalidate the state’s approval of using federal flood recovery money to consolidate Nicholas County schools.
That’s according to Amber Chapman, one of the three parents who sued, and James Barber, a Richwood High graduate who’s been their attorney.
The move comes after the state School Building Authority board re-did the vote that the parents challenged, and after the Federal Emergency Management Agency approved extending the SBA’s deadline to sign an agreement to accept more than $150 million from FEMA to build consolidated schools.
SBA Executive Director David Roach specifically requested the extension in order to circumvent the lawsuit’s arguments. The parents didn’t sue FEMA, just the SBA.
Chapman, who announced the parents’ planned abandonment of the suit in a written statement, wrote that the parents “are looking at other legal options in their attempt to obtain a fair and transparent outcome in the rebuilding of Richwood High School and Richwood Middle School.”
She wrote that, after the FEMA deadline extension, “Kanawha courts do not have jurisdiction in this area.”
“We are speaking with groups in other flooded counties to determine whether the problems associated with our complaint are in fact more widespread and systemic,” she wrote. “Namely, a pattern of improper meetings, lack of transparency, inconsistent implementation of state and federal rules and regulations, and overall waste of time and resources.”
Chapman’s statement didn’t include further specifics. Barber said he had nothing to add.
The suit was filed in Kanawha because you can only sue state agencies in Kanawha County.
The Nicholas County school system previously shared proposed budgets of $147.5 million for the planned Summersville-area consolidated school and $30 million for the planned consolidated Richwood-area school.
Nicholas schools Superintendent Donna Burge-Tetrick said in October that those numbers weren’t yet final. On Thursday, she declined to answer questions.
FEMA’s “428” funding method will allow the Nicholas Board of Education to use FEMA dollars from the June 2016 flood to consolidate schools instead of rebuilding them separately.
The county school board plans to use 428 funding to renovate and expand Richwood’s Cherry River Elementary to also fit Richwood Middle and Richwood High students, whose former buildings the board razed following flood damage.
The board plans to build another school near Summersville to replace Summersville Middle, which it also demolished after flood damage. That school would also consolidate Nicholas County High, in Summersville, and the county vocational school, in Craigsville, both of which are still operating in their pre-flood buildings.
The SBA board voted Sept. 4 to allow Nicholas to consolidate through using the 428 funding method.
That same day, Brian Abraham, Republican Gov. Jim Justice’s general counsel and chairman of the SBA board, signed a document that accepted $177.5 million as the school rebuilding project’s “fixed estimate.” FEMA is expected to fund about 90 percent of that: $159.8 million.
The agreement document also said the SBA, Nicholas school board and state Division of Homeland Security and Emergency Management “accept responsibility for all costs above the fixed estimate.” Representatives of the school board and division also signed the agreement.
MaryAnn Tierney, administrator for FEMA Region III, which includes West Virginia, signed the agreement Sept. 6.
On Sept. 24, Barber filed a notice of intent to sue over alleged open meetings law violations on Sept. 4. But when the SBA board scheduled a do-over meeting, Barber publicly said the repeat would moot the suit, so it wouldn’t be filed.
He said at the time that the suit wasn’t meant to scuttle the 428 plan or the plan for two schools, “it’s simply that they make the best choice for a site in Richwood.” He said that because open meetings laws were allegedly violated, “the public was deprived of the opportunity to try to compare and contrast the site analysis the last time before they voted.”
The SBA board let Barber and another Richwood High alumnus present at the Oct. 22 do-over meeting. The two criticized the process Nicholas used to select Cherry River Elementary as the site to rebuild the Richwood schools, and both suggested the “Collins” site, property owned by Collins Hardwood, was superior.
But neither SBA board members nor anyone representing the Nicholas school system responded, and the SBA board members in attendance asked no questions of either side before unanimously re-approving the action from the challenged Sept. 4 meeting.
In November, the Richwood parents pushed ahead with a lawsuit asking Kanawha Circuit Judge Jennifer Bailey to declare invalid the Sept. 4 SBA vote allowing the 428 method and declare invalid Abraham’s signature of the 428 agreement.
“The Oct. 22 meeting did not make the Sept. 4 meeting moot, as a FEMA spokesman has stated that FEMA is relying on the signatures on the 428 agreement from the Sept. 4 meeting,” Barber then wrote in an email. “The Oct. 22 meeting, aside from being an admission that the Sept. 4 meeting was invalid, apparently was only for show, as the FEMA deadline had passed on Sept. 25.”
A FEMA spokesperson did say before the do-over meeting that “September 25, 2018 was the deadline to have the ... agreement signed by the WV SBA and NCBOE,” and “the required signatures for participation in the Public Assistance Alternative Procedures Program were submitted to FEMA prior to the deadline, thus, the SBA meeting outcome does not affect participation.”
Regardless, on Nov. 30, Roach, the SBA executive director, wrote to Michael Todorovich, the current director of the state Division of Homeland Security and Emergency Management. Roach asked Todorovich to ask FEMA to extend the Sept. 25 deadline for signing the agreement past the Oct. 22 re-do meeting “in order to render the arguments of this lawsuit moot.”
In a Dec. 18 letter, Tierney wrote to Todorovich that FEMA approved retroactively extending the Sept. 25 deadline to Oct. 31.
“This is to account for the additional time that was necessary to finalize the fixed-cost estimate,” Tierney wrote, though much of her letter referenced the suit, and she didn’t mention anything that required more time to finalize the estimate.
Chapman wrote that the parents “do not feel that FEMA has the authority or justification to grant the extension after the fact: in all of their literature, extensions are only granted for situations where the fixed cost estimate has not been agreed upon due to extenuating circumstances. This will set a new precedent within FEMA to grant extensions to applicants for the sole purpose for avoidance of lawsuits.”
Dan Stoneking, external affairs director for FEMA Region III, citing a FEMA guide for the 428 program, wrote in an email that: “FEMA has the authority to allow a time extension request … on a project-by-project basis if the request provides justification for the extension and demonstrates continuing progress on the project.” The section of the guide he referenced doesn’t say what the justification can or can’t be.
Before Tierney’s letter granting the retroactive deadline extension, the SBA filed a motion to dismiss the lawsuit.
“FEMA officials have taken no action to void or set aside the grant because of the alleged deficiencies in the Defendant’s meeting notice for the September 4, 2018 meeting,” wrote Senior Deputy Attorney General Kelli Talbott, on behalf of the SBA.
She argued that, if there was an open meetings act violation on Sept. 4, the re-do meeting fixed it to FEMA’s satisfaction.
“The question then arises as to what purpose it would serve to have this Court go back and examine the purely academic question as to whether the Defendant’s September 4, 2018 meeting notice was deficient in some way,” Talbott wrote. “So that the Plaintiffs can use it to try to convince FEMA not to give the State and Nicholas County $159.8 Million Dollars in federal funds to replace devastated schools? ... The exercise of having such an academic question decided by this Court purely for the purpose of giving a party a cudgel to use to convince a non-party [FEMA] to do or not do something, or to use as a sword to try to change something that is not at issue in this litigation [the building site] is the epitome of a non-justiciable controversy.”