Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

West Virginia Board of Education v. Board of Education of County of Nicholas

Supreme Court of West Virginia

October 10, 2017

WEST VIRGINIA BOARD OF EDUCATION and STEVEN L. PAINE, Ed.D., in his capacity as the State Superintendent of Schools, Respondents Below, Petitioners
v.
BOARD OF EDUCATION OF THE COUNTY OF NICHOLAS, WEST VIRGINIA, Petitioner Below, Respondent

          Submitted: October 3, 2017

         Appeal from the Circuit Court of Kanawha County The Honorable Louis H. Bloom, Judge Civil Action No. 17-P-232

          Patrick Morrisey, Esq. Attorney General Kelli D. Talbott, Esq. Senior Deputy Attorney General Charleston, West Virginia Attorneys for Petitioners

          Kenneth E. Webb, Jr., Esq. Rebecca M. Tinder, Esq. Bowles Rice, LLP Charleston, West Virginia Attorneys for Respondent

          Robert M. Bastress, Esq. Morgantown, West Virginia and Jeffrey G. Blaydes, Esq. Carbone & Blaydes, P.L.L.C. Charleston, West Virginia Attorneys for Amici Curiae Richwood High School Alumni Association, American Federation of Teachers-West Virginia, Sharon Glasscock, Michael Fox, and Jocelyn Swearingen

          R. Booth Goodwin II, Esq. W. Jeffrey Vollmer, Esq. Goodwin & Goodwin, LLP Charleston, West Virginia Attorneys for Amicus Curiae West Virginia School Board Association

          JUSTICE WORKMAN delivered the Opinion of the Court. CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

         SYLLABUS BY THE COURT

         1. "A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." Syl. Pt. 1, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).

         2. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).

         3. "To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syl. Pt. 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981).

         4. "Mandamus does not lie to control a board of education in the exercise of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such board." Syl. Pt. 1, State ex rel. Payne v. Bd. of Educ. of Jefferson Cty., 135 W.Va. 349, 63 S.E.2d 579 (1950).

         5. "The West Virginia Board of Education and the State Superintendent of Schools, pursuant to their general supervisory powers over education in West Virginia under W.Va. Const. art. XII, § 2, and their specific duties to establish, implement and enforce high quality educational standards for all facets of education under the provisions of Chapter 18 of the West Virginia Code, have a duty to ensure the complete executive delivery and maintenance of a 'thorough and efficient system of free schools' in West Virginia[.]" Syl. Pt. 1, in part, Pauley v. Bailey, 174 W.Va. 167, 324 S.E.2d 128 (1984).

         6. "Rule-making by the State Board of Education is within the meaning of 'general supervision' of state schools pursuant to art. XII, § 2 of the West Virginia Constitution, and any statutory provision that interferes with such rule-making is unconstitutional." Syl. Pt. 2, in part, W.Va. Bd. of Educ. v. Hechler, 180 W.Va. 451, 376 S.E.2d 839 (1988).

         7. The West Virginia Board of Education is entitled to utilize its discretion in approving or rejecting an amendment to a Comprehensive Educational Facilities Plan submitted pursuant to West Virginia Code of State Regulations §§ 126-176-1 et seq. (2005) in aid of school closure or consolidation.

          WORKMAN, JUSTICE.

         This is an appeal from the August 18, 2017, order of the Circuit Court of Kanawha County, granting a writ of mandamus in favor of the Nicholas County Board of Education ("the Board"), requiring the West Virginia Board of Education and Dr. Steven L. Paine, in his capacity as State Superintendent of Schools (hereinafter collectively "the WVBOE"), to approve the Board's amended Consolidated Educational Facilities Plan ("CEFP"). The amendment to the CEFP constitutes a necessary prerequisite to the Board's efforts to consolidate four Nicholas County schools and its Career and Technical Education Center. The circuit court found that the WVBOE lacks the authority to reject a county board's CEFP and attendant consolidation plan if the county complies with the requirements of West Virginia Code § 18-5-13a (2002) and West Virginia Code of State Regulations §§ 126-176-1 et seq. (2005). The circuit court further found that the WVBOE members' stated reasons for rejecting the CEFP amendment and consolidation plan were "arbitrary and capricious" inasmuch as the reasons were not expressly contained in the WVBOE's promulgated rule regarding school consolidation and closure.

         Upon careful review of the briefs, [1] 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 discretion in accepting or rejecting an amended CEFP and attendant consolidation plan and that mere procedural compliance with statutory and regulatory requirements does not entitle a county board of education to approval of its proposed plan. We further find that the reasons formally adopted by the WVBOE for rejection of the plan were neither arbitrary nor capricious. Therefore, the circuit court erred in granting the writ of mandamus.

         I. FACTS AND PROCEDURAL HISTORY

         On June 23, 2016, Richwood Middle School, Richwood High School, and Summersville Middle School were seriously damaged by flood waters. As a result of the flooding, the President of the United States issued a natural disaster declaration, making the schools eligible for Federal Emergency Management Agency ("FEMA") funds. Following the flood, the Board discovered that FEMA funds could not be used to rebuild Richwood Middle School or Richwood High School in their existing locations because they are located in the floodplain. These schools are therefore eligible for "directed relocation funds" used for rebuilding outside of the floodplain. The Board was further advised that FEMA "428" funds were available, which would enable it to consolidate all of the pending FEMA funds and utilize them for projects other than "one-for-one" replacement.[2] It is these "428" funds it seeks to use to build the proposed comprehensive consolidated campus at issue.

         Nicholas County School Board Superintendent Donna 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, Ms. Burge-Tetrick recommended to the Board that it consolidate Richwood Middle and Summersville Middle Schools and Nicholas County and Richwood High Schools, along with the Career and Technical Education Facility, to be located together on a consolidated campus.

         In furtherance of this plan, the Board prepared a written closure and consolidation plan pursuant to West Virginia Code § 18-5-13a and West Virginia Code of State Regulations § 126-176-1 et seq., commonly and hereinafter referred to as "Policy 6204." The statute and regulations, in part, require a county board to collect data and information to be incorporated into a written consolidation plan. Policy 6204 requires the written consolidation plan to include an executive summary containing information and data, as more particularly described therein, pertaining to the following categories: enrollment, facilities, finance, personnel, transportation, and education programs.[3]

         As further required by the statute and Policy 6204, five public hearings were held between February 24 and March 6, 2017, at the affected schools where members of the public spoke both for and against consolidation. After the required hearings, the Board voted unanimously to move forward with consolidation. Pursuant to Policy 6204, the next step was to request amendment of its CEFP from the WVBOE.

         The Board's proposed amended CEFP was placed on the WVBOE's June 13, 2017, meeting agenda.[4] During the meeting, Ms. Burge-Tetrick made a presentation on the merits of the consolidation plan. Additional information was presented by State Superintendent Dr. Steven Paine and Scott Raines, the Director of School Planning from the School Building Authority.[5] Other interested parties spoke in favor of and against the amendment.[6] Members of the WVBOE questioned the various speakers regarding a multitude of issues bearing on the propriety of consolidation.

         During his presentation, Dr. Paine stated that the Board had followed all of the necessary procedures to comply with Policy 6204. Dr. Paine further offered commentary regarding the consolidation, stating that the Board was the most financially solvent of all the county systems, with the greatest amount of carryover funds annually, and that the affected schools were performing well academically. He noted that the June 26, 2017, deadline for application for the FEMA "428" funds was subject to an extension, which he was assured would be granted. He further noted that if the "428" funds were not pursued, other traditional FEMA funds would still be available without such time constraints. Notably, Dr. Paine also noted that he believed that an alternative plan existed which had not been considered by the Board, i.e. consolidation of only the Richwood schools, to remain in the Richwood attendance area, and consolidation of the Summersville schools, to remain in the Summersville area.[7]

         At the close of the meeting, WVBOE Vice President David Perry moved to reject the CEFP amendment due to his belief that "sufficient alternatives and possibilities have not been explored to be assured this plan is in the best interest of the students of Nicholas County, specifically of those in the current [Richwood schools] areas." The CEFP amendment was then rejected on a vote of 7-1.[8]

         The Board thereafter filed the instant action seeking a writ of mandamus to compel the WVBOE to accept its proposed CEFP amendment, contending that the WVBOE acted arbitrarily and capriciously in rejecting the amendment. The circuit court issued a rule to show cause, which was served upon the WVBOE along with the petition. The day before the rule to show cause hearing, the WVBOE convened an emergency meeting to reconsider the CEFP amendment. After presentations and speakers both for and against consolidation, Mr. Perry again moved to reject the amendment, stating that he had "different reasons" for rejection. Mr. Perry stated that 1) he felt there was a lack of "meaningful dialogue" between the Board and the Nicholas County citizens; 2) the Board did not consider alternatives to consolidation including locations in the Richwood attendance area, rather than simply the Richwood city limits; 3) there was equivalent declining population in Nicholas County High School area, rather than just the Richwood High area; 4) utilization of technology would net the same personnel cost savings; and 5) the Richwood schools were comparably educating students and out-performing other schools in the state on most metrics.[9] The WVBOE then again voted 6-1 to reject the amendment.

         The following day, on July 11, 2017, an evidentiary hearing was held on the rule to show cause. Each WVBOE member who voted to reject the plan was questioned regarding the basis of his or her vote. WVBOE President Thomas Campbell testified that he voted to reject due to several reasons including lack of community outreach, poor communication, and financial considerations. He further expressed concern that consolidation of two high-performing schools would not necessarily translate into a singular high-performing school. President Campbell emphasized the WVBOE's obligation to assess impact on the system as whole. Vice President Perry testified consistent with the reasons articulated in his formal motion. Member Debra Sullivan testified that she did not believe the Board considered the views of the citizens, nor the impact of consolidation on extracurricular activities, and generally favored smaller community schools which typically enhance parent involvement. Member Frank Vitale testified he did not believe the Board did enough to solicit input from the community. Member Jeff Flanagan testified he did not believe the Board provided enough detail about potential sites or funding. Member Miller Hall testified he did not believe the Board considered the impact of consolidation on student discipline. Member Frank Rotruck testified he wanted the Board to consider other community school options. A recurrent concern throughout the testimony was the high number of impoverished students from the Richwood area and the research supporting the notion that such students perform better in smaller, community schools.[10]

         The circuit court found that the WVBOE "did not follow its own rules and procedures set forth in Policy 6204" by rejecting the plan based on "factors" not contained in Policy 6204. The circuit court found the WVBOE members' reasons for rejection "arbitrary" and matters which "the Legislature did not intend them to consider[.]" The circuit court further found that the WVBOE's rejection was "pre-textual and an abuse of power, " relying on testimony regarding the Governor's stated preferences for a school in Richwood during his State of the State address.[11] The circuit court further found that the WVBOE's only role relative to consolidation is "to determine whether the county boards are following the requirements of" and/or "supervising compliance" with the statute. Expressing that the county is in a better position to determine its needs relative to consolidation, the circuit court found that the WVBOE "does not have unfettered discretion to simply substitute its judgment for that of a local county school board[.]"

         The circuit court therefore awarded the writ of mandamus, ordering the WVBOE to approve the Board's CEFP amendment.[12] This appeal followed.

          II. STANDARD OF REVIEW

         "A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." Syl. Pt. 1, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008). Moreover, "[interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).

         Insofar as the underlying standard for the circuit court's grant of the writ, we have held: "To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syl. Pt. 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981). However, we are mindful that "[m]andamus does not lie to control a board of education in the exercise of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such board." Syl. Pt. 1, State ex rel. Payne v. Bd. of Educ. of Jefferson Cty., 135 W.Va. 349, 63 S.E.2d 579 (1950).[13]With these considerations in mind, we turn to the parties' arguments.

         III. DISCUSSION

         The issue presented herein is whether the WVBOE has authority to reject a CEFP amendment attendant to a consolidation plan, where the local board has complied with the requirements contained in West Virginia Code § 18-5-13a and West Virginia Code of State Regulations §§ 126-176-1 et seq. If the Court determines that the WVBOE has such authority, it must ascertain whether such authority was exercised arbitrarily or capriciously in this case. We wish to make plain, however, as this Court has historically observed in cases of this nature, that the advisability, or lack thereof, of consolidation is not properly within this Court's purview. The wisdom, efficacy, and feasibility of school consolidation are matters reserved to the respective boards of education. See City of Benwood v. Bd. of Educ, Cty. of Marshall, 212 W.Va. 436, 442, 573 S.E.2d 347, 353 (2002) ("[W]e note that our focus in this case was not on the merits of consolidation or our beliefs as to whether or not consolidation is advisable for the schools of Marshall County[.]").[14]This Court's charge is solely to ascertain whether the WVBOE's rejection of the CEFP amendment was a proper use of its lawful authority.

         A. Authority of WVBOE to Reject CEFP Amendment

         The circuit court found that the WVBOE has only such authority as is expressly granted by the Legislature and that neither the statute nor regulations at issue provide for the WVBOE's exercise of its discretion to reject a CEFP amendment and/or consolidation plan which is compliant therewith. The WVBOE contends that it has both a constitutional grant of supervisory authority over such matters and that the particular statute and regulation at issue are further designed to make such matters subject to its approval. We therefore begin our analysis by examining the circuit court's discussion of the relative powers and duties ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.