W. Va. Bd. of Educ. & Steven L. Paine v. Bd. of Educ. of the Cnty. of Nicholas, No. 17-0767

CourtSupreme Court of West Virginia
Writing for the CourtJUSTICE WORKMAN delivered the Opinion of the Court.
Decision Date10 October 2017
PartiesWEST 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
Docket NumberNo. 17-0767

in his capacity as the State Superintendent of Schools, Respondents Below, Petitioners

No. 17-0767


September 2017 Term
Submitted: October 3, 2017
October 10, 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

Page 2

Robert M. Bastress, Esq.
Morgantown, West Virginia
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

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

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

Page 3


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

Page 4

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.

Page 5

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

Page 6

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.


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"

Page 7

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.

Page 8

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.

Page 9

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,

Page 10

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,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT