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Suit may invalidate approval of Nicholas using FEMA funds to consolidate

Richwood High School (after flood)

Richwood High alumni hang a sign that says "Bring Back the Lumberjacks" to a fence in front of the shuttered high school in Richwood on Aug. 6, 2017. The school was closed after sustaining damage in the June 2016 flood, and has since been demolished.

Three parents of Richwood school children are asking a judge to declare invalid the state School Building Authority’s approval for the Nicholas County school system to use over $150 million in federal flood recovery funds to consolidate schools.

The Federal Emergency Management Agency’s “428” funding method would allow Nicholas to use FEMA dollars from the June 2016 flood to consolidate schools instead of rebuilding them separately.

The Nicholas Board of Education 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, plus Nicholas County High, in Summersville, and the vocational school, in Craigsville. Those last two schools are still operating in their pre-flood buildings.

The school system has shared proposed budgets of $147.5 million for the Summersville-area school and $30 million for the Richwood-area school. Nicholas schools Superintendent Donna Burge-Tetrick said last month that those numbers weren’t yet final.

The suit, filed Tuesday in Kanawha County Circuit Court, alleges open meetings law violations and argues those violations render invalid the SBA board’s Sept. 4 approval for Nicholas to use the 428 funding method.

The suit also asks Kanawha Circuit Judge Jennifer Bailey to declare invalid the signing of a document that accepts $177.5 million as the rebuilding project’s “fixed estimate” and says the Nicholas school board, SBA and state Division of Homeland Security and Emergency Management “accept responsibility for all costs above the fixed estimate” — meaning FEMA won’t pay for them.

“We think we did everything we were supposed to do,” SBA Executive Director David Roach said before declining further public comment.

Charleston-based attorney and Richwood High graduate James Barber filed the suit Tuesday on behalf of Heather Sharp-Spinks, of Nettie, Tabby Smith, of Richwood, and Amber Chapman, of Craigsville.

Barber earlier filed a notice of intent to sue over alleged open meetings law violations regarding the Sept. 4 meeting, but then publicly said the suit wouldn’t be filed after the SBA board scheduled a do-over meeting.

“The Monday meeting moots the suit, so the suit’s never going to be filed,” Barber told the Gazette-Mail last month.

He said at the time 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.”

“Had a lawsuit been filed the purpose was ... try to get this info in front of the board before they voted and the argument was because they didn’t comply with open meeting laws and didn’t even have the info themselves the public was deprived of the opportunity to try to compare and contrast the site analysis the last time before they voted,” Barber said last month.

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 meeting.

“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 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 Sandy Recovery Improvement Act [SRIA] 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.” SRIA is often called 428.

The spokesman, Will Powell, wrote in an email Wednesday that FEMA doesn’t comment on ongoing litigation. He said he was still researching Wednesday whether FEMA could simply extend the Sept. 25 deadline to Oct. 22 or later.

“The Sept. 4 meeting was held by SBA to approve a plan for FEMA and the State to spend over $150 million on schools in Nicholas County,” Barber wrote, when asked what the goal of the suit now was. “Every step of that process needs to be done by the book, and within the rules. It would be a disaster if, at some future point well into this process, it is determined by an auditor or oversight group that FEMA or some other government body missed a step, overlooked a deadline, or failed to follow policy in some way so as to jeopardize the whole process.”

He wrote that “we simply want to be sure that everything is done above board and by the book” and “the goal of the suit is just what it says: a declaration that the actions taken at the Sept. 4 meeting were invalid and should be annulled.”

Reach Ryan Quinn at,, 304-348-1254 or follow

@RyanEQuinn on Twitter.

Funerals for Today June 18, 2019

Anderson, Jewell - Noon, Tyler Mountain Funeral Home, Cross Lanes.

Barker, Lorena - 11 a.m., Armstrong Funeral Home, Whitesville.

Barnette, Alice - 2 p.m., Waybright Funeral Home, Ripley.

Field, Nancy - 1 p.m., Leonard Johnson Funeral Home, Marmet.

Fields, Norma - 6 p.m., O'Dell Funeral Home, Montgomery.

Garnes, James - 2 p.m., Casto Funeral Home, Evans.

Johnson, Roy - 6 p.m., Ward Church of God, Cedar Grove.

Karnes, Sherri - 5 p.m., St. Timothy in the Valley Episcopal Church, Hurricane.

Nichols, Ethel Pauline - 1 p.m., Wilson-Smith Funeral Home.

Rayburn, Sandra - 11 a.m., Allen Funeral Home, Hurricane. 

Thomas, Tony - noon, 305 B McDonald Ave, South Charleston.

Weaver, Charles - Noon, Koontz Funeral Home, Hamlin.