The Register-Herald, Beckley, West Virginia

January 15, 2013

College, foundation seek to intervene in petition filed against commission

By Tina Alvey
Register-Herald Reporter

LEWISBURG — New River Community and Technical College’s board of governors and the school’s foundation are seeking to intervene in a Greenbrier County Circuit Court case involving funding for a public swimming pool.

The pool in question is located in a building on New River’s Lewisburg campus. The Greenbrier County Commission entered into a lease arrangement last year with the school for the aquatic center, with the understanding that the county would pay for the pool’s rehabilitation. Commissioners allocated $1.3 million in hotel-motel occupancy taxes to fund reconstruction of the pool facilities, paying that money to NRCTC’s foundation.

In November, four county residents filed a petition for a writ of mandamus against the commission, claiming that spending bed tax funds on a building not owned by the county is not legal. The petition also asks the court to order the $1.3 million be returned to county coffers and to void the lease arrangement.

As “indispensable parties” to the transactions, the college’s board and its foundation say they have the right to intervene in the case and, further, that both the board and the foundation should have been named as respondents in the mandamus petition.

Filed by Lewisburg attorney Barry Bruce, the petition names only the Greenbrier County Commission and its then-president, Betty Crookshanks, as respondents.

Represented by senior assistant Attorney General Charles Houdyschell Jr., the college’s board of governors also filed a motion to dismiss the case, asserting that the lease “vests the County Commission with sufficient ownership interests to use the hotel tax to fund these obligations.”

The board’s motion also contends the Commission “will exercise dominion and operation of this facility. For all practical purposes, this will be a county swimming pool.”

Foundation attorney Timothy N. Barber brought a theatrical flair to a Monday afternoon hearing before senior status Judge Charles M. Vickers, who was appointed to hear the mandamus case.

Barber argued that including the college and its foundation as respondents was “just elementary; it’s not complicated.” He said “a sixth-grader reading this petition” could see that the two are necessary parties.

“It’s elementary kind of stuff,” he reiterated. “We are entitled to be in this case as respondents. It’s hard for me to digest... that Bruce is surprised by all this.”

Bruce had earlier advised the judge that, with the motions to intervene only crossing his desk Friday, he had not yet had time to consult with his clients and craft a response.

Vickers said it was obvious that little would be accomplished in Monday’s initial hearing on the issues, with the lawyers not even in agreement on who the parties to the suit were.

“It’s seems to me you’ve got controversy,” the judge said, asking Bruce how much time he needed to respond to the foundation and the college board’s motions to intervene.

Bruce said he felt he could review the information, consult with his clients and respond to the motions “within the next two weeks.”

Barber jabbed again at his opponent — whom he referred to variously as “this guy here” and simply by last name — saying he didn’t understand why Bruce couldn’t respond to the motions “in the next three or four days.”

“I’m not a slow reader,” Barber quipped.

Houdyschell also asked the judge to schedule a further hearing as quickly as possible, pointing out that the work scheduled to be done on the swimming pool is part of a larger construction project at the college’s Lewisburg campus.

Vickers scheduled the next hearing for Jan. 30 at 1:30 p.m. The judge asked a bailiff to confirm that a courtroom would be available in the county courthouse on that date, despite Barber’s joking assurances that the hearing would be brief enough that it could be conducted “in the parking lot” or even “in a closet.”

— E-mail: talvey@register-herald.