The Register-Herald, Beckley, West Virginia

December 9, 2012

Greenbrier Commission: New pool may be in hot water

By Tina Alvey
Register-Herald Reporter

— The Greenbrier County Commission’s allocation of $1.3 million for construction of a swimming pool may be in hot water.

Lewisburg attorney Barry L. Bruce penned a letter to the commission Monday threatening legal action if a $1 million check issued to New River Community and Technical College’s foundation is not restored to the county’s bed tax fund within a week.

Bruce is acting on behalf of as-yet unnamed clients, whom the letter refers to as “Greenbrier County citizens,” who asked the attorney to research whether the commission had the authority to spend bed tax money for construction of a pool on property not owned by the county.

In the letter, Bruce states that his review of West Virginia Code indicates that, while the law permits hotel-motel tax revenue to be applied toward the construction, operation or maintenance of public parks, tourist information centers and recreational facilities, the definition of “recreational facilities” offered in the statute is those owned by a county or municipality.

Therefore, Bruce concludes, the $1 million allocation approved by the commission during its Nov. 13 meeting was transferred in violation of state code and must, therefore, be returned to the county.

Commission President Betty Crookshanks said she called an emergency meeting Tuesday afternoon in

response to the demands in Bruce’s letter. But the actions taken by the commission during that meeting — as well as the last-minute notice of the meeting — appear to have only thrown gasoline on the fire.

The commissioners first voted unanimously to change the minutes of the Nov. 13 meeting to remove wording that indicated the $1 million allocation was for construction of a swimming pool.

Then, after Crookshanks read Bruce’s letter aloud to her fellow commissioners, a vote was taken to increase that initial $1 million outlay by 30 percent. The additional $300,000 set aside for New River’s Fine Arts Building and Aquatic Center was approved on a 2-1 vote, with Commissioner Michael McClung opposing the measure.

In an interview with The Register-Herald, Crookshanks explained, “We have contractors waiting, and we had to let the college know if we were going ahead with this.”

She said the total cost of the project, which will restore the aging swimming facility located inside the college’s Fine Arts Building, is $1.45 million.

“We knew from the beginning how much we had to have,” Crookshanks said, pointing out that delays in the planning stage led to the need to have the project re-bid.

She said private donations and state funds designated for the project by then-Gov. Joe Manchin were supposed to make up the difference between the $1 million in bed tax money originally allocated and the project’s actual cost.

“But when we counted up our money, it wasn’t enough,” Crookshanks explained, with a cryptic reference to $200,000 that had been expected from “another source.”

She noted that at Tuesday’s emergency meeting, the commissioners knew they needed to come up with that $200,000, plus “a little contingency,” which she rounded off to $100,000.

The minutes from the emergency meeting reflect that Crookshanks’ motion to approve the additional $300,000 included the stipulation that “if there is a court ruling that says that (the commission) cannot use the money on the pool, then the college can have it for the Fine Arts Building.”

Crookshanks said Thursday she stands behind that decision, but hopes the swimming pool project comes to fruition.

“If we can’t use it for the pool, a lot of people will be disappointed,” she said.


Tuesday’s emergency session was held with little warning. A notice was posted on the courthouse door minutes before the meeting began, and a few media representatives received telephone calls from the commission’s assistant.

One person who did not receive notice of the meeting was the attorney whose letter ostensibly prompted the emergency session.

“I’m just absolutely dumbfounded,” Bruce said when contacted by The Register-Herald. “It’s bizarre.”

Bruce said he is aware that an announcement of the meeting was placed on the courthouse door and that “some media” were contacted, but said he has been unable to obtain a copy of the notice that was posted.

“My understanding is that the cause of the emergency and a full agenda were not on the notice,” he said, “but when I asked to see the notice after hearing a meeting had been held, I was told they don’t have it.”

Bruce said he believes Tuesday’s meeting — during which decisions were made on both an increase in the bed tax allocation and signing a contract to lease five vehicles for the Sheriff’s Department — violated the state’s open meetings law.

“The meeting was illegal,” he said. “To up the ante to a million three and take action on other issues — it was illegal.”

He added, “I’m writing another letter right now telling them they were completely off-base.”

Getting back to the primary issue of using bed tax money to pay for construction of a swimming pool, Bruce said his clients are not necessarily opposed to the county’s plan to operate an indoor pool.

“People want to know the cost and where the money is going,” he said, noting that during the Nov. 13 meeting when the initial $1 million was allocated, the agenda did not reveal the amount of funds that the commission was considering transferring for the Fine Arts Building and Aquatic Center.

Bruce said he felt an agenda item that made it clear that $1 million was on the line “would have grabbed people’s attention.”

Moreover, he said, the statute setting forth allowable expenditures from bed tax revenue does not mention “brick and mortar” projects of the sort the swimming pool represents, given that the building in which the pool will be located is not owned by the county.

Crookshanks sought an opinion Monday on the expenditure from the state auditor’s office, pointing out the cultural activities planned for the college’s Fine Arts Building, as well as the 92-year-old structure’s historical significance.

Emphasizing that he was not offering a legal opinion, Ora L. Ash, director of local government services for the auditor, responded to Crookshanks’ inquiry by saying state code “clearly lists the promotion of the arts as one of the legitimate expenditures” for bed tax funds.

Ash wrote, “Based on the information that you provided and my understanding of the aforementioned code section, it would appear that this would be a legitimate allocation of up to 50 percent of the revenue received from this tax.”

Bruce disagreed with Ash’s evaluation and said he anticipates filing a writ of prohibition on behalf of his clients Monday, unless the Greenbrier County Commission reverses course.

He continued to decline to identify his clients, saying, “That has nothing to do with the issue. The issue is what (the commission) did is wrong.”


Apparently prompted by the threat of legal action, the commission moved up the date of next week’s meeting to Monday at 10 a.m. and adjusted the agenda to include the following items:

“Correct minutes from the November 13, 2012 Regular Meeting.

“Vote & Reconsider the motions made pertaining to the New River Community & Technical College Fine Arts & Aquatic Center and any amendments proposed.

“Vote & Reconsider the signing of the lease agreement on the 5 vehicles for the Sheriff’s dept. and any amendments proposed.”

Monday morning’s meeting will be considered a special session, taking the place of Tuesday evening’s regular session, according to commission assistant Kelly Banton.

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