The Register-Herald, Beckley, West Virginia

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January 29, 2013

As pool lawsuit draws nearer, parties seem to be growing even further apart

By Tina Alvey Register-Herald Reporter

LEWISBURG — With a scheduled court hearing now only hours away, there is no indication that parties connected to a lawsuit challenging the expenditure of bed tax funds for a public swimming pool are any closer to settling their differences.

In fact, judging by the number of revisions, responses and renewals recently deposited into the court file, the warring factions may be even further apart than they were during a contentious initial courtroom appearance two weeks ago.

Lewisburg attorney Barry Bruce filed a petition for a writ of mandamus against the Greenbrier County Commission on behalf of four clients in November. The petition contended that a $1.3 million allocation of bed tax funds for reconstruction of a long-abandoned indoor swimming pool in a building owned by New River Community and Technical College was illegal.

The petition asked the court to order the money be returned to county coffers and to void the lease arrangement between the commission and New River.

As “indispensable parties” to those transactions, the college’s board and its foundation have asserted the right to intervene in the case, over the objections of Bruce and his clients.

Two days after a hearing before special Judge Charles M. Vickers, Bruce amended the original petition to read that his clients — now numbering only two — request the court to make a finding and issue an order “that the Greenbrier County Commission had no authority to transfer funds from the hotel/motel tax revenues for any reason other than those provided for under West Virginia State Code.”

Bruce then filed an objection to any stipulation for intervention in the case by either the college or its foundation because the petition was now narrowed to the single issue of appropriateness of the bed tax expenditure.

Foundation attorney Timothy N. Barber filed a renewed motion to intervene Monday, scoffing in his filing, “The amendment is a simple transparent attempt to avoid the intervention of the Foundation.”

Senior Assistant Attorney General Charles Houdyschell Jr., who represents the college’s board of governors, filed a reply Thursday to the petitioner’s objections to the intervention and again asked the court to deny the writ request.

The Greenbrier County Commission’s attorney, Richard A. Robb, filed an answer Jan. 22 to the amended writ petition, writing, “(T)he respondent denies it has violated any of the provisions of the West Virginia Code, willfully or otherwise.”

Robb also asked the court to dismiss the petition and, for good measure, filed a counterclaim against the petitioners, claiming their actions have delayed the planned pool construction project, thus causing the County Commission to lose a $200,000 grant.

“This action has been willful, malicious and wholly contrary to the public process available to the petitioners for opposing this project,” Robb wrote, asking the court to award the commission $200,000, plus attorney’s fees and costs.

Vickers signed an order last week setting a hearing on the intervention issues for Wednesday at 1:30 p.m.

— E-mail: talvey@register-herald.com

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