All the procedures taken by the board at Thursday's meeting align with the Ethics Commission's guidelines for public entities that need to undo a prior Open Meetings Act violation, the board said in its response.
However, the amended lawsuit filed Friday alleges that Thursday's actions were not adequate because the board's alleged violation of the law was, in fact, done knowingly and willfully. The lawsuit claims that Linger disregarded advice from legal counsel about the legality of the termination before Marple was fired Nov. 15.
"The meeting was simply an attempt by the board to cleanse its plainly illegal act taken on Nov. 15," the lawsuit alleges. "However, the new meeting was nothing more than a ceremonial and perfunctory ratification of the previous illegal termination."
The board insists it did not break the law because no vote was taken in closed session, and said it worked directly with the Ethics Commission to craft the language of the new meeting agenda. The state board also compensated Marple from Nov. 15 through Thursday, just in case.
In its response, the board also cites McComas v. Board of Education of Fayette County. In McComas, the court ruled that a decision made following an improper meeting can be upheld if the public body corrected the prior violation.
In the amendment to the lawsuit, the plaintiffs said that even if the court found that the Ethics Commission's advisory opinion applied, it's still clear that the board's "remedial measures were nothing more than ceremonial and perfunctory."
On Thursday's meeting agenda, "Oath of Office" also was listed, suggesting a new superintendent would be sworn in that day.
"It is obvious to all who attended the meeting on Nov. 29 that the decision to terminate the superintendent had already been made," the plaintiffs said. "By placing items on the agenda that necessarily presupposed the termination of the superintendent, the remedial measures of the board amounted to nothing more than a dog and pony show intended to ceremonially ratify its violation."
In response to the lawsuit's accusations that the board's actions were premeditated, the board reaffirmed that Marple was serving at its will and pleasure and that it had a legal right to fire her.
"Petitioners are confusing the constitutional and statutory duty of the board to instate a superintendent of schools with a 'predetermination' to replace the former superintendent," the response says.
The amendment to the lawsuit maintains the lawsuit's initial request that the justices declare the termination invalid and stop the board from naming a replacement.
In turn, the Board of Education requests that the court declare Marple's termination valid and allow it to name a permanent replacement.
Reach Mackenzie Mays at mackenzie.m...@wvgazette.com or 304-348-4814.