W. Va. Bd. of Educ. v. Bd. of Educ. of the Cnty. of Nicholas, No. 17-0767

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN, Justice
• Citation: 806 S.E.2d 136
• Parties: 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
• Decision Date: 10 October 2017
• Docket Number: No. 17-0767

806 S.E.2d 136

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

No. 17-0767

Supreme Court of Appeals of West Virginia.

Submitted: October 3, 2017
Filed: October 10, 2017

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

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

806 S.E.2d 140

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

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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...