State school board, SBA sued over Fayette schools

By Ryan Quinn


The Fayette County Commission, commission President Matt Wender and two parents of kids in Fayette’s beleaguered public school system have filed a lawsuit against the state Board of Education and the state School Building Authority over those agencies’ alleged failure to fulfill their duties to fix Fayette’s school building and academic issues.

Meanwhile, SBA Executive Director David Sneed said Wednesday he expects his agency to resume working with the county to develop a new plan to solve the facility problems. Education officials halted that process after the nonprofit law firm Mountain State Justice filed its legally required intent to sue in early April.

The firm’s lawsuit, filed late Tuesday, does note the process to come up with a new plan, but has criticism of it.

“Respondents [the SBA and the state school board] have thrust Fayette County into yet another apparently interminable process of data collection and planning,” it states. “Respondents have made no commitment of funds to address the outstanding needs of the failing school facilities that present ongoing threats of physical harm to school children in Fayette County. Accordingly, irreparable harm will result from any further delay in proffering a commitment by the Respondents.”

Sam Petsonk, one of two lead Mountain State Justice attorneys on the case, said those he’s representing don’t want the SBA to “go through another year of analyzing Fayette County schools, as they have in the past,” and then have SBA staff recommend a solution to the SBA board only to have that board decline to fund the recommendation. The SBA distributes state general revenue, bond proceeds and lottery money for school construction and renovation projects around West Virginia.

In the case, Petsonk is asking a Kanawha County Circuit Court judge to order the defendants to show cause why the SBA shouldn’t be forced to fund the controversial Fayette school consolidation plan that the SBA board approved in November — under pressure from an earlier Mountain State Justice/Fayette County Commission lawsuit — before denying funding for a month later.

Six members of the state school board, which took over Fayette’s school system from its locally elected school board in 2010, supported that consolidation plan. But of the three state board members who voted against the plan, two — Tom Campbell and Bill White — also are on the SBA’s board.

The push for the consolidation came after State Schools Superintendent Michael Martirano abruptly ordered Collins Middle’s seventh- and eighth-grade building closed last school year because of structural issues, forcing the Fayette school system to relocate about 400 students to county high schools. Along with building problems at other schools, the lawsuit highlights the issues at Collins Middle — where one of the two parents suing, Erica Stewart, has a child, and where the other, Jessica Zukowski, will have one next school year.

The petition for writ of mandamus also requests that the judge order the state school board and SBA to show cause why they shouldn’t be deemed in violation of various duties placed upon them by state law and the state Constitution’s guarantees of equal protection and a “thorough and efficient education.”

Petsonk said the lawsuit isn’t necessarily seeking to force the SBA to fund last year’s consolidation plan — which would have, among other things, combined four high schools into a new one with about 1,550 students, allowing Collins Middle kids to transfer into the current Oak Hill High building.

“The nature of a mandamus proceeding is not to prescribe specific relief for damages, but to identify a duty and a failure to fulfill that duty,” Petsonk said.

He said the state board and SBA could fulfill their duties in a number of ways.

“I think that the premise of the lawsuit is that the state agencies have failed to fund these Fayette County schools in proportion to their needs,” he said. “And that constitutes a legal shortcoming.”

The lawsuit does state that “the high cost of maintaining these numerous high schools has hindered the county’s ability to invest in improving the buildings and the academic services.”

State school board attorney Mary Catherine Tuckwiller and Charleston-based attorney Tom Hurney, who’s representing the SBA in the case, both said late Wednesday that they hadn’t been able to review the lawsuit. They declined comment. Peter Markham, the SBA board’s chairman and Gov. Earl Ray Tomblin’s designee, also said he hadn’t seen the lawsuit.

Sneed said that now that SBA staff have contracted with and spoken with legal counsel, he expects to resume the process to develop a new school building plan.

“I would hope that we won’t come to that conclusion where we pull out,” he said. “And our counsel doesn’t feel that we should.”

He said he’s working with a planning committee comprised of three representatives from each Fayette school: the principal, a member of the school’s community and the chairperson or a representative of its Local School Improvement Council.

Sneed said the SBA has gathered information, unavailable in the previous building plan, on what it would cost to bring every school in the county up to code — he said the process is a long way from discussing which schools should stay open or close. He plans to share more information with the public at a meeting 6 p.m. Monday at Oak Hill High.

Reach Ryan Quinn at, 304-348-1254,, or follow @RyanEQuinn on Twitter.