The Register-Herald, Beckley, West Virginia

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June 28, 2013

Judge rules Greenbrier meetings, pool expenditure were illegal

LEWISBURG — Challengers to the legality of a pair of Greenbrier County Commission meetings and the resulting allocation of $1.3 million in bed tax funds for renovation of a swimming pool have prevailed.

Special Judge Charles M. Vickers issued a written ruling Thursday afternoon granting the petitioners a writ of mandamus, voiding the actions taken at commission meetings on Dec. 4, 2012, and Dec. 10, 2012, and invalidating the expenditure of hotel/motel tax revenues for the pool renovation.

The $1.3 million at issue was transferred to the New River Community and Technical College Foundation following those December meetings. The swimming pool — termed an “aquatic center” in many court documents — is located inside a building on the campus of New River’s Greenbrier Valley campus, which is in Lewisburg.

Although the renovation of the entire building is well under way, the county commission last month asked the college foundation to return the $1.3 million, a request rebuffed by New River President Dr. L. Marshall Washington.

In his ruling, Vickers found that the topic that triggered the commission’s “emergency” meeting of Dec. 4 was not truly an emergency. That meeting was called, the judge quoted the commission as saying, “due to the contractors waiting on the signed contract” for the renovation of the aquatic center.

Vickers wrote, “This situation does not appear to require immediate action, and this court finds that a meeting to address this issue could have been properly noticed as a regular or special meeting.”

The judge, therefore, voided the action taken at that meeting — allocating $1 million in bed tax money for the pool renovation.

As to the Dec. 10 meeting, Vickers ruled that only two days’ public notice was provided prior to the session, violating the commission’s own agenda policy and procedures as well as the Open Governmental Proceedings Act, commonly known as the Sunshine Law.

The judge also voided the action taken at that meeting — allocating an additional $300,000 in bed tax money for the aquatic center.

Bed tax revenue can only be spent on certain, narrowly defined projects and purposes, which are specifically delineated in the State Code.

Vickers noted in his 13-page ruling, “The parties agree that the expenditure in question (for the aquatic center) falls within the recreational facility provision, if at all. Petitioners note that expenditures for recreational facilities must be made for facilities ‘owned by a county or municipality.’”

The county commission argued that the county has an ownership interest of sorts, in that it has a lease with New River for a portion of the facility in question, and that the college and the county are both “derived from the State of West Virginia.”

Vickers rejected the commission’s position, writing, “The statute is plain and unambiguous, and the words ‘owned by a county or municipality’ will be given their ordinary meanings. In other words, for the hotel/motel tax revenues to be used for a recreational facility in Greenbrier County, Greenbrier County must own that facility.

“It is undisputed that Greenbrier County does not own the Fine Arts & Aquatic Center. Accordingly, the hotel/motel tax revenues cannot be used for renovation of this facility under the provision approving use of hotel /motel tax revenues for the construction, operation, or maintenance of recreational facilities.”

Vickers reserved his strongest language for actions taken by former Greenbrier County Commission President Betty Crookshanks, who in August 2012 sought advice on the bed tax expenditure from the state auditor’s office. The initial opinion Crookshanks received from a Mr. Ash in the auditor’s office said “such expenditures did not appear to be legal in light of the fact that the facility is not owned by the county,” Vickers wrote.

The judge continued, “In an apparent effort to disguise the true nature of the expenditure, Ms. Crookshanks submitted a second letter seeking Mr. Ash’s opinion as to the expenditure.”

In that second letter, Crookshanks described the bed tax allocation as going toward renovating the college’s Fine Arts Building, which is one of the names by which the aquatic center’s home is known, and said the money would go toward “promotion of the arts.”

“It is clear that swimming pool renovations do not constitute promotion of the arts,” Vickers wrote.

He added, “Accordingly, this court finds that the commission’s after-the-fact attempts to justify the unlawful expenditure constitute a deliberate and knowing refusal to exercise a clear legal duty, which entitles petitioners to attorneys’ fees in this action.”

Vickers also cautioned the commission not to simply hold another meeting and attempt to re-allocate bed tax funds for the swimming pool project “in contravention of this court’s ruling.”

It was not clear Thursday afternoon what impact the judge’s ruling will have on the ongoing renovations at New River’s Greenbrier Valley campus, or the county’s contract to operate the aquatic center at that site or on the county’s budget.

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