The Register-Herald, Beckley, West Virginia

Columns

December 8, 2012

Firing gives state's high court chance to affirm law

The Back Porch column

 

The state board of education’s unceremonious dumping of state schools Superintendent Jorea Marple is a great lesson in how not to fire a highly placed public official. And thanks to parents James and Michelle Hicks, the lesson will be taught in public through their petition with the state Supreme Court claiming the board violated the state open meeting law.

Members dropped Marple like a hot rock after her 18 months on the job, saying she hadn’t done enough to improve student achievement and graduation rates.

The merits of Marple’s work are not the issue in State ex. rel. Hicks v. West Virginia Board of Education. The issue is how Marple’s Nov. 15 termination was handled.

After the Hickses filed their initial petition Nov. 21, the board met Nov. 29 to again consider Marple’s employment and again fire her. At that meeting, the agenda included items to hire a new superintendent and administer the oath of office to the new hire.

In a supplement to the original petition, the Hickses argued, “By placing items on the agenda that necessarily presupposed the termination of the Superintendent, the remedial measures of the Board amounted to nothing more than a dog and pony show intended to ceremonially ratify its violation from the November 15th meeting.”

They argue that a public do-over does not cure the first violation of the open meeting law.

Attorneys for the state board noted in their response that board members are entitled to discuss personnel matters in executive session. They argue the meeting was properly noticed and the vote to fire Marple was taken in open session.

That interpretation of the law is correct.

But what they missed is the small print in one section of the law they included as an exhibit to buttress their argument. It is in Chapter 6, Article 9A, Paragraph 8: “This subsection does not prohibit a public agency from deliberating, voting or otherwise taking action by reference to an agenda, if copies of the agenda, sufficiently worded to enable the public to understand what is being deliberated, voted or acted upon, are available for public inspection at the meeting.”

They argue the board was entitled to decide Marple’s fate during the personnel portion of the agenda. Based on the draft minutes from the Nov. 15 meeting included in the response, the action item to fire Marple was added after the executive session. It was not listed on the agenda published to the media and available at the meeting.

The public had no way of knowing Marple’s employment would be decided upon until after that executive session, which occurred on day two of the board’s regular monthly meeting.

Do board attorneys believe the state Supreme Court will be convinced by that argument when the personnel agenda lists the suspension of an employee at the School for the Deaf and Blind and the suspension of a RESA 5 employee as action items but absolutely no mention of firing the state schools chief?

The high court’s justices are not that stupid. That omission is a clear showing of intent on the school board’s part to evade the requirements of the law and — once a lawsuit is filed — to try to hide behind them by quoting a lot of extraneous material from the open meeting law.

Finally, the board’s attorneys cite as support McComas v. Board of Education of Fayette County, one of the more egregious examples of a county school board that tried to obfuscate the law by holding secret Sunday meetings before a vote to consolidate the county’s high schools.

In that case, the circuit judge and the state Supreme Court held that the vote to consolidate was null and void because the improper meeting violated state law.

Justices merely have to review the defendants’ own pleadings to find sufficient rope to hang them. Using McComas as guidance, the justices have a clear path to nullify Marple’s termination.

Before West Virginia had an open meeting law, the state Supreme Court consistently upheld the spirit of such a law as outlined in federal and state constitutions — of transparency and openness — even when the letter of the law was fuzzy.

This is a swishing slam dunk for the Hickses for holding the state board of education to the law and for openness and full disclosure in state government.

— Young is a Register-Herald columnist and the author of “Mass Communication Law in West Virginia, 2nd Edition,” which includes a chapter on the state’s open meeting law. E-mail: ynerissa@frontier.com

© Nerissa Young 2012

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