Nicholas consolidation question: Do local boards have to comply with rules, or go beyond them?

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Nicholas consolidation question: Do local boards have to comply with rules, or go beyond them?
By Brad McElhinny, WV MetroNews

CHARLESTON, W.Va. — If a county school board has met the standards for public involvement as it decides to consolidate local schools, should it expect to receive the stamp of approval from the state Board of Education?

Or does the state board have the right to determine that although the standards have been met as they’re stated on paper, the county board should have gone above and beyond?

Those are the questions Kanawha Circuit Judge Duke Bloom will take a crack at determining as they relate to possible consolidation in Nicholas County.

Bloom heard a little more than seven hours of testimony Tuesday in the Nicholas County case. He did not rule yet, and doesn’t expect to for a couple more weeks. At the hearing’s conclusion he asked both sides for additional written evidence.

The hearing also focused on the question of how much influence has been exerted by the Justice administration.

Gov. Jim Justice named the majority of the state school board in the months after he took office, after several departures of board members named by previous administrations.

On several occasions, Justice has publicly stated his desire to keep school open in Richwood. The governor, though, has also been an outspoken advocate for local control of schools as opposed to the state Department of Education.

Judge Bloom said local control is among the ideas he is thinking about.

“I think that’s consistent with what the governor said to the Legislature — that he wants to put local school systems in charge of education and not the folks in Charleston,” Bloom commented near the beginning of the hearing. “Where is the authority of the state board of education to substitute their judgment?

The Nicholas County school board prefers a plan to combine five schools at one campus in the Summersville area. The schools are Richwood High and Middle Schools, Summersville Middle, Nicholas County High School, and the county’s vocational school.

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.

Twice now, state school board members have rejected that plan. They’re concerned that local board members didn’t adequately listen to concerns from Richwood residents and that alternatives might exist.

Responding to repeated questioning by lawyers and by Judge Bloom, state board members repeatedly said the Nicholas County board abided by the letter of state policy, which they often called by its number, 6204.

But the state board members said they didn’t believe the Nicholas board members listened intently enough to concerns or that they engaged with all county residents with enough zeal.

“They dotted their Is and crossed their Ts procedurally,” said state schools superintendent Steve Paine. “They met the requirements of the policy.”

For example, Paine acknowledged, the Nicholas County board had the appropriate number of public hearings in the appropriate locations before rendering its consolidation decision.

But, Paine said, “What occurred at those hearings? How much dialogue occurred?”

State board president Tom Campbell said there is a difference between the letter of the law and the spirit of the law.

“The letter would appear they had their hearings properly posted,” Campbell said.

But Campbell said state board members, who are appointed by the governor, have a responsibility to judge whether a plan is truly good for the community.

“I think the board has the responsibility to judge the case on the merit,” Campbell said.

Bloom later asked Campbell, “Have you found any inconsistencies with their specific plan?”

Campbell responded, “I think it’s the state board’s responsibility to examine the justification.”

State board member Debra Sullivan, one of several state board members to testify, said she put in 28 hours studying five volumes of hearing testimony. Sullivan, a longtime educator, said that reading led her to conclude that the local school board hadn’t treated its public engagement responsibility with enough enthusiasm.

“How can you tell by reading a transcript?” Bloom asked.

“It was by their responses,” Sullivan said. “It was all very cordial that I could read.”

For instance, Sullivan said local school system officials did not seem to engage residents about their ideas but simply responded with a polite and quick “thank you.” Bloom asked how she could read so much into the tone without having been there.

“So you believe its your role to substitute your judgement for the local board of education?” Bloom asked.

The judge followed up by asking, “Do you think you’re in a better position to know what’s best for students than the Nicholas County Board of Education?”

Other state board members answered similarly to Sullivan. Frank Vitale, who was named to the state board in March, used a metaphor to indicate his belief that Nicholas County hadn’t gathered enough information about residents’ desires.

“I can gather a truckload of sticks or a wheelbarrow of sticks, but there is a big difference,” Vitale said.

The hearing also focused on how much influence Gov. Jim Justice had on the state board’s decision. Justice said in his State of the State address and on other occasions that he hopes Richwood High School can be spared.

At one point during the hearing there was an actual argument about whether the State of the State could be entered into evidence. The lawyer for the state school board wanted evidence that it was, indeed, the text of the State of the State and wondered where this particular copy had come from. The lawyer for the Nicholas board said he had printed it off the governor’s website.

Justice’s connection to Richwood is also emotional. The Greenbrier East basketball teams that the governor coaches play the Richwood teams.  And Justice and the Neighbors Loving Neighbors charitable organization were critical to restoring the Big Red Gymnasium next to Richwood High last fall.

“His stated desire to me has been that while his heart was in that matter the purview was in entities he could not control, such as the state board,” Campbell, the state board president, responded under questioning.

Judge Bloom told Superintendent Paine he would like to hear his impression of the governor’s position.

“I am interested in if the governor has expressed his desire to you,”  Bloom said.

“Absolutely not,” Paine said. “In no way, shape or form has anyone in his office ever had a conversation with me about building a school in Richwood.”

Some former state school board members indicated in testimony that they believe their willingness to consider the Nicholas board’s position led to their departures from the board.

Former board member Bev Kingery, who resigned in February, said she got a call in January from the Justice administration, “asking me how I felt about consolidation in Nicholas County and how I would vote on it.

“I stated each county board has five elected representatives and those five members should make decisions for their county,” Kingery said.

At one point, after some other departures, Kingery thought she would be considered as vice-president of the state board. After a few conversations, it became clear to her that wasn’t going to happen. “I had to do some soul searching,” she testified. “It was better for me to resign.”

Barbara Whitecotton served on the board only this past February and March. Approaching an April board meeting and believing the Nicholas position needed to be heard, she sent an email “expressing strongly I thought it was disrespectful to people of Nicholas County not to be heard.”

By April 9, Whitecotton heard through the grapevine that her official nomination to the board was being withdrawn. She said she never got an official call, though. “I have yet to receive any communication from anyone saying I’ve been withdrawn,” she testified.

Nicholas County Superintendent Donna Burke-Tetrick testified that she was getting daily help on formuating post-flood plans from the Department of Education during the Tomblin administration. She said that changed when the Justice administration took over.

“After the State of the State address, I felt like someone kicked me in the stomach,” she said.

Gus Penix, the president of the Nicholas County board, said he was at the Capitol and ran into state board member Dave Perry one day at the Statehouse.

“He told us we’d better dot every I or cross every T, and if we didn’t he was going to stick it up our rears,” Penix said.

The Nicholas school board has received a six-month extension for formulating a school construction plan from the Federal Emergency Management Agency, which could provide most of the funding for the new schools.

Bloom said he recognizes time is of the essence. Toward the end of Tuesday’s hearing he also lightheartedly recognized the possibility that the divisive nature of the case could make it a likely candidate for appeal.

“I have the feeling somebody is going to appeal whatever I do anyway,” the judge said.