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Judge rules in favor of Cabell County BOE
Highlawn resident Susan Gillette, one of four plaintiffs in a case against the Cabell County Board of Education, gives opening statements Tuesday in a declaratory judgment hearing in front of Cabell Circuit Court Judge David Pancake.
Purchase this photoHUNTINGTON -- The Cabell County Board of Education will proceed with building a new middle school at the former University Heights site after Cabell Circuit Court Judge David Pancake found the board did not mishandle 1991 bond funds.
The case was brought by residents Johnny and Karen Nance and Paul and Susan Gillette. They alleged that there were left-over bond proceeds that were transferred into a general fund and ultimately used toward the purchase of the University Heights property off U.S. 60 last summer from Prestera Center for Mental Health Services.
The 1990 bond call stated that the old Huntington East High School on 5th Avenue -- which became the school system's central office and operations headquarters in the late 1990s -- would become a middle school for Enslow and Beverly Hills.
But Pancake said the money, no matter the amount, could be used because it was excess tax collections and not bond proceeds. Under West Virginia state law, once a bond is paid off, any excess tax collections held by the Bond Commission can be turned over to the board of education to spent at its discretion.
"There are two streams of funds that are critical to understanding this case," said school board attorney Patrick E. Clark. "The first stream is proceeds from the bond being sold to pay for the projects. The second stream is the taxes. Those are not for the purpose of completing projects. They are for paying off the bonds."
Pancake agreed, but Nance and Gillette said the case exposes a flaw in state law. Nance said if there are tax collections left over when a bond has been paid off, and the projects cited in the bond election are not complete, the excess funds should be used to finish what the voters approved.
"I think there is something wrong with law when they can take our money and spend it on something else," Nance said. "I still think we're right. Maybe not legally, but morally."
Pancake didn't completely disagree with the plaintiffs' argument. But he said there were no precedents, and the cases cited by the plaintiffs were not applicable to the case.
That includes the 1992 case of McCallister vs. The Cabell County Board of Education. Huntington resident and former mayoral candidate Tom McCallister filed suit against the school board after it had decided not to use what is now known as KineticPark as the site for Huntington High School. McCallister went so far as to ask the judge to declare the entire special election and subsequent issuance of bonds invalid.
Judge L. D. Egnor said in his decision that because the site was used in the bond call language, the location might have affected the outcome of the election.
As a result, Egnor allowed the school board to choose one of three paths, including a special election to allow the voters to decide the high school's new site. That's what the board chose, and voters decided on the alternate site where the high school stands today.
Pancake said that decision may have been the right one then. But its context does not apply today.
"There is no law that dictates the (future) location of the school be tied to prior bond elections as long as bond proceeds are not used," he said.
Superintendent William Smith said he's happy it's over and disappointed the case had to cost taxpayers $50,000 in legal fees.
Next up in the process, he said, is the mitigation over the historical value of the former West Virginia Colored Children's Home, which is on the University Heights site. It is on the National Register of Historic Places and must be mitigated to secure its history before it can be torn down.
