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BOE disputes Marple firing lawsuit claims

CHARLESTON, W.Va. -- The West Virginia Board of Education is disputing claims that it violated state open-government laws by firing Superintendent of Schools Jorea Marple.

A lawsuit filed by Mountain State Justice Inc. -- a public interest group -- alleges that the process used to fire Marple on Nov. 15 was illegal because plans for her termination were not listed on the meeting's agenda. The group filed the lawsuit on behalf of parents James and Michelle Hicks of Foster.

The lawsuit alleges that the state board has a history of violating the principles of open government and asks the West Virginia Supreme Court to declare the board's decision invalid and block its members from hiring a new superintendent.

An amendment was added to the lawsuit Friday afternoon and alleges illegitimate reasons for Marple's firing -- pointing to her refusal to support no-bid contracts tied to certain board members.

In its response to the lawsuit, filed Friday evening, the Board of Education claims that its actions did not break the law because, while Marple was not specifically named on the agenda, "personnel matters" was listed. It is a longstanding process of the board to discuss "sensitive issues" in private when dealing with personnel matters, the response states.

The wording in the agenda did not include any language that would limit the board to only discuss the two employees who specifically were mentioned in "personnel matters," according to the response to the lawsuit.

"Rather, a reasonable reading of this agenda item would allow for the board, while in executive session, to discuss any personnel matters that need to be deliberated," the board says in its response.

The board voted 5-2 to fire Marple at the Nov. 15 meeting. Board members spent more than an hour in closed session and then reappeared with the announcement of an addition to personnel matters. President Wade Linger then passed a piece of paper around to fellow board members, asking them to vote on the matter. The lone sentence on the paper asked them to vote to terminate Marple and that it take effect immediately.

The state open-meetings law prohibits public bodies from taking action on matters not posted in their published meeting agenda and prohibits amending agendas within two business days of the scheduled meeting, except in emergencies.

Emergencies are defined under the law as an "unexpected situation or sudden occurrence of a serious nature, such as an event that threatens public health and safety."

However, a 2005 advisory opinion that the state Ethics Commission issued concerning the Open Governmental Meetings Act provides guidance of how to cure a violation of the act. The commission's opinion states that a violation of the law that was not knowingly and willfully committed can be rectified. To do so, the governing body must take "reasonable remedial measures" that go above and beyond ceremonial or superficial ratification of their previous official action.

On Thursday, a Board of Education meeting was held to revisit Marple's firing. The board again voted to fire Marple, this time in a vote of 6-2, with the addition of board member Lloyd Jackson. He was not present at the Nov. 15 meeting.

Linger and Jackson joined Gayle Manchin, William White, Robert Dunlevy and Michael Green in voting to fire Marple. Priscilla Haden and Jenny Phillips again voted against the motion.

The Board of Education allowed three business days' notice of the new meeting, posted a description of the matters to be reconsidered on its website and opened the meeting to the public. Nearly 20 people signed up to address the board with their concerns.

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.mays@wvgazette.com or 304-348-4814.


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