The Register-Herald, Beckley, West Virginia

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January 9, 2013

Greenbrier commission to hire outside counsel for opinion on swimming pool funding

$1.3 million appropriation of hotel/motel tax could be in jeopardy following change in panel make-up

LEWISBURG — Less than two weeks after announcing that Prosecuting Attorney Patrick Via would defend them against a mandamus action related to funding of a swimming pool, Greenbrier County Commissioners voted to seek outside counsel in the case.

Tuesday evening’s public vote followed the close of a 90-minute executive session during which the commissioners discussed the pending lawsuit with Via.

Commissioner Michael McClung emphasized that the decision to hire a lawyer rather than rely on the prosecutor’s office should not be seen as a “reflection on the prosecutor.” Rather, he explained that the suit might be too time-consuming to be handled in-house, plus the case might present an ethical conflict for Via and his staff because they represented the commission in preparing legal documents related to the swimming pool project.

Newly-elected Commissioner Woody Hanna amended the initial motion authorizing the hiring of outside counsel to cap the scope of that lawyer’s work and the payment for same.

The amendment was approved, capping the payment at $1,000 and the scope of the lawyer’s involvement in the case to rendering “an opinion,” fueling speculation about the current commission’s position on the issues raised in the mandamus petition.

To varying degrees, both Hanna and McClung have expressed opposition to the project, which will reconstruct a long-abandoned indoor pool in a structure on the Lewisburg campus of New River Community and Technical College. Under the terms of a contract between the county and New River, while the facility will continue to be owned by the college, the county will be responsible for the rehab and operation of the aquatic center.

McClung has consistently opposed the project, including voting against the funding measures that are now being challenged in court.

On 2-1 votes, with McClung the only dissenter, the commission last month approved allocating $1.3 million in hotel-motel tax revenue to the pool project and transferring that money to the NRCTC Foundation.

Betty Crookshanks, one of the two commissioners who voted for the funding, left office at the end of the year, and was replaced by Hanna.

During a candidates’ forum in October, Hanna suggested the county work with the Board of Education to construct a pool at a school instead of rehabbing a facility that the county will have to operate.

“Swimming pools are expensive,” Hanna said at the time. “Nobody makes money with swimming pools.”

Fayette County Senior Status Judge Charles M. Vickers has been appointed to preside over the mandamus case, in which four Greenbrier County residents challenge the legality of using bed tax money to make improvements to a building that is not owned by either the county or a municipality.

Commissioners said Tuesday they expect the judge to postpone a scheduled Monday afternoon hearing in the case due to their change of legal counsel. The hearing remained on the Greenbrier Circuit Court docket as of Wednesday afternoon.

— E-mail: talvey@register-herald.com

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