Dear Governor Tomblin:
I am compelled to write after yesterday’s unprecedented and improper School Building Authority (SBA) vote to deny Fayette County’s request to amend its facilities plan. The SBA is statutorily entrusted to you both as to appointing the executive director and as to chairing and appointing citizen members. See W. Va. Code § 18-9D-1, et seq. Yesterday, the SBA held a properly noticed meeting during which the following agenda item was to be discussed:
For amendments relating to 2016 NEEDs Projects, approval of the amendments does not indicate financial support for these projects. SBA approval simply acknowledges that the proper amendment process has been followed by the County Board of Education. A single motion of the Authority may approve all items on the Consent Agenda or, should an individual item be of interest to a member, it may be pulled for discussion. (Emphasis added.)
The agenda item attempts to comply with the statue. It recognizes that approval simply acknowledges that the proper process has been followed. Nothing in the agenda item suggests any a plan can be rejected.
It is incomprehensible to me how a consent agenda item approved by the WVBE and endorsed by Executive Director Sneed to simply acknowledge “that the proper amendment process has been followed by the County Board of Education,” (and in Fayette County’s case, the WVBE which has direct oversight) became a vote on the substantive merit of the plan for future funding.
The SBA’s own policies make clear at §2.3 that “failure to provide information or proposals by the deadlines will eliminate the submitted project from consideration.” There is absolutely no indication that Fayette County failed to provide requisite information or missed a deadline to necessitate elimination from consideration.
There is good reason the SBA cannot simply reject an amendment or a plan. All the plans and amendments proposed to SBA have undergone an extensive process of public scrutiny and often rigorous debate. In the case of Fayette County, the West Virginia Board of Education (State Board) was responsible for this process, and I can assure you it was a rigorous process. After hours of public hearings, years of public comment before the State Board, the soliciting and answering of many questions, the receipt and consideration of hundreds of letters, and robust debate by our members, the State Board approved the CEFP amendment. Without the benefit of any of this process, the SBA substituted its judgement for that of the State Board and rejected the amendment. The SBA effectively took on the role of a super board of education and, without the benefit of all the public debate and input, simply determined it knew more than the State Board that submitted the amendment. Such an action is beyond the statute and beyond the notice provided in the SBA agenda.
The reports from the meeting clearly indicate that the action taken by SBA was not a financial decision, but was the act of SBA to substitute its judgement for that of the State Board on issues like school consolidation and public support for the amendment. These issues are not vested in the SBA, but are specifically given to the local or State Board to decide after the exhaustive process the law requires. Here are just two examples from the press report of the meeting that appeared in the Charleston Gazette:
SBA board members raised objections Monday over forcing Fayette schools to consolidate despite county voters rejecting a school building and renovation bond that would’ve consolidated schools differently but also closed Meadow Bridge High.
SBA board members expressed concern that neither Fayette’s residents nor its locally elected school board voted for the new consolidation plan. “Nobody approved this. Not the local board, not the taxpayers. But wait a minute, the state board approved it,” said Gabriel, of Harrison County. “... This is not a dictator board, this is America and this is West Virginia, by gosh.”
One comment even evidenced a predetermination of the financial viability of the plan before it even had been considered in comparison to other plans:
Burton, of Wayne County, and Lewis, of Jefferson County, both suggested the board should vote against the plan so as not to give Fayette “false hope” that members would approve funding in December.
There is good reason why the Legislature provided that only procedural and documentary matters should be considered by SBA before the financial decisions which SBA inevitable must make. Local boards of education and the State Board are vested with the authority and procedural mandates to guarantee a fair evaluation of substantive issues. The SBA superseded the role of those school boards in the case of the Fayette County amendment to its CEFP, substituting its judgement on such critical issues as school consolidation and adequate public support. That exceeds the legal mandate of the SBA.
First and foremost, county voters are not required to approve a school bond in order to be eligible for SBA funding. The SBA’s own policy at §2.1 makes that clear – no matching funds are required. Second, Fayette County is under WVBE control. The decision to approve or disapprove the proposed amendment rested solely with the WVBE which approved the amendment in a 6-3 vote in early September. It is illogical and far-reaching for the prior voting record of county citizens to be taken into consideration when determining whether a plan is procedurally compliant.
Yesterday’s SBA meeting crossed the threshold of open government compliance when members transitioned a perfunctory consent agenda item into a substantive and official action in direct contradiction of West Virginia law and Ethics Commission Opinion 2007-12, which holds that “each member of a governing body must exercise due care to insure that asking questions of staff or speakers does not transition from the domain of obtaining relevant information into dialogue among the members regarding the merits of a matter on which the Board may reasonably expect to take official action.”
To remedy the excesses of the SBA and the possible violation of the West Virginia Open Meetings Act, you, or your representative, immediately should convene a special meeting of the SBA at which meeting the SBA should reverse its action and reinstate the Fayette County CEFP amendment for consideration along with the other requests. Those members of SBA who by their comments apparently have prejudged the funding decision on the Fayette County amendment should consider whether they should recuse themselves from a decision on the Fayette County amendment.
I personally have visited numerous facilities in Fayette County. Many of Fayette County’s schools are deplorable. The children of Fayette County deserve adequate facilities just like other students in West Virginia. It is equally deplorable that the citizens of Fayette County cannot seem to resolve their local facilities problems. That is one reason the State Board assumed control of Fayette County. But my primary obligation is to the students of Fayette County, and if the adults won’t do the right thing, the State Board must. The SBA should do no less.