The Legalities of Closing PCHS

BREAKING NEWS: Hours after publication of the article below, the Paden City Schools Athletic Association; teachers, coaches and employees of Paden City High School; and parents, grandparents and guardians of Wetzel County students sued to block the closure of PCHS. A Wetzel County Circuit Court judge ordered that the school be reopened and scheduled a hearing for July 25 on the merits of the lawsuit.

To hear Wetzel County Schools officials tell it, the case for closing Paden City High School is open and shut. State law gave Superintendent Cassandra Porter the right to do it for health and safety reasons, and West Virginia Supreme Court precedent settles the issue. The Wetzel County Board of Education acquiesced to her wishes without a fight.

But it’s not as simple as they want the PCHS community to believe. Laws and court rulings are open to interpretation, and judicial precedents can be refined for clarity in response to new legal circumstances or completely reversed.

In this instance, there are good reasons to question the opinions of the superintendent, the board and their lawyer. All of them made a decision, either passively or aggressively, and they are going to defend it. That doesn’t mean their case is beyond dispute.

I am not a lawyer, and this is not a legal brief. But I do have decades of experience analyzing laws, legislative histories, regulations, court cases and technical documents to explain them in plain language. I once led a team that summarized every major bill in Congress and tracked action on them for high-paying Washington powerbrokers.

This column is a similar exercise in critical thinking. Let’s dig into Wetzel County’s justification for closing PCHS and explore the weaknesses in it.

Duties of the superintendent
A good starting point is in the chapter of the West Virginia code that Porter cited when she closed PCHS on July 1. The statute says, “The superintendent shall ... close a school temporarily when conditions are detrimental to the health, safety or welfare of the pupils.”

Depending on their political and policy goals, lawmakers tend to draft either precise bill language to dictate their will to the executive branch, or they craft vague wording to give bureaucrats more flexibility. The authority that Porter cited has a little of both.

It includes the word “shall” instead of “may,” which means if the other conditions exist, a superintendent must close the school. The words temporarily, detrimental, health, safety and welfare restrain that power, but the education chapter of the state code does not specifically define any of those words, so they are open to contextual interpretation.

Porter said PCHS is closed for the 2024-25 school year, but she hasn’t specified when it will reopen. That sounds more permanent than temporary, especially when Superfund sites like the one underneath the school can take decades to clean.

She also said the possibility of a vapor intrusion from soil contaminated with the dry-cleaning chemical PCE is a threat to the health and safety of anyone inside PCHS. But that possibility has existed for years; government scientists who are monitoring the vapor plume under the school say it is not an immediate threat; and any vapors are not a threat at all unless people are exposed to them for long stretches over an extended time.

Safety experts typically use a tool called a risk matrix to determine the seriousness of a perceived threat. It gauges the probability of something happening (from “rare” to “almost certain,” for example) and the severity of the impact if it does (from “insignificant” to “severe”). This helps the experts decide how to best respond under given circumstances.

The U.S. Environmental Protection Agency takes a similar approach when identifying Superfund sites like the one that includes PCHS property. When sites rise to the required level on the Hazard Ranking System, they are added to the national priorities list for closer monitoring and cleanup, as Paden City’s groundwater was in 2022.

Paden City’s score of 50 on the EPA hazard scale puts it in the moderate range. That is on par with other Superfund sites in the Ohio Valley, including those in Hannibal (46.44), Moundsville (53.98), Ravenswood (50) and Vienna (50).

Wetzel County officials have not cited any analysis of the alleged health risk at PCHS. Their decision is unscientifically subjective at best and agenda-driven at worst. In that context, any lawyer worth her billable hours could make a case against the statutory reasoning behind Porter’s overreach. (Update: Teresa Toriseva is representing the PCHS community in a lawsuit.)

Reining in school superintendents
That brings us to another aspect of the superintendent’s duties. Jump down a few sections in the state code from the part that Porter cited and you’ll find this:

Notice all of the limitations written into that emergency power. Lawmakers obviously didn’t want to leave it too open to the interpretation of potentially aggressive superintendents. But why?

It’s hard to know exactly, but a search of the legislative archives shows that those limitations were not always written into the law. From at least 1937 until 1991, the law simply said superintendents shall “act in case of emergency as the best interests of the school demand.”

Administrative power couldn’t get much more sweeping than that. It is not hard to imagine superintendents abusing it in the years before the law was amended and legislators then tightening the reins.

A school board’s calculated silence
Now let’s talk about the Wetzel County Board of Education. Members have insisted that they can’t overrule Porter’s closing of PCHS for two reasons — the power she has under law and a state Supreme Court ruling that allegedly affirms her authority. But both arguments are convenient dodges that allow the board to avoid accountability.

The state code spells out the duties not only of school superintendents but also of school boards, and some board powers are as broad as those of superintendents. That is how checks and balances work in American governance. If a majority of the board disagrees with Porter, they could invoke their own powers or sue on the grounds that indefinitely closing PCHS usurps the board.

Board President Linda Fonner suggested otherwise at a June 25 board meeting. “The board has nothing to do with that decision, nor can we override her decision,” she said. “We cannot even vote to say we disagree with it. We don’t get a vote because of that West Virginia Supreme Court ruling that she has the exclusive authority.”

But the 2022 court case she referenced, William B. Hartman v. Putnam County Board of Education, isn’t so clearcut. For starters, the dispute wasn’t between a board and superintendent; it was between a citizen and both the board and superintendent.

The complaint also wasn’t about temporarily closing a school; the citizen objected because county schools were not closed during a two-day teachers’ strike in 2019. And the heart of his complaint was actually that a majority of the board and the superintendent met illegally via electronic communication to decide how they would respond if the strike materialized.

In siding with the board, the Supreme Court did note that the legislature gave superintendents the “exclusive authority” to “temporarily close schools.” But that opinion would not necessarily preclude a board from challenging a superintendent’s indefinite closure of a school. A two-day decision not to close a school is a far cry from a decision to close one for a whole school year at minimum and with no predictable end in sight.

With the exception of one now-former member who is a Paden City native and PCHS graduate, no one on the Wetzel County board seems to care that Porter arguably exceeded her authority. It is reasonable to take their calculated silence on the issue as a sign that a majority agrees with Porter, perhaps because they see it as a backdoor opening to future school reconfiguration that includes the permanent closure of PCHS.

If that is where this school closing is headed, the outcry should be coming from more than the pro-PCHS crowd. Every board in the state should be fighting against the precedent that Porter’s power grab will set, and every legislator should be drafting language to keep dictatorial superintendents like her in check.

State legislators who represent Wetzel County did not respond to requests for comment on this issue.