Little action taken in Clay man's FOIA suit against county development agency

CHARLESTON – A year after it was filed, a Clay County man's Freedom of Information Act suit remains at square one.

Since he filed it on Feb. 17, 2011, Michael Boggs' suit in Kanawha Circuit Court to compel the Clay County Business Development Authority to disclose three years' of records has seen little action. The most recent was a motion filed Dec. 9 by his attorney David R. Karr Jr. to file an amended complaint.

Karr's motion came in response to a combined answer, and motion to dismiss filed by the state Development Office which was named as co-defendant in Boggs' suit. The WVDO is the reason the suit is in Kanawha Circuit as after Boggs filed his original suit in Clay Circuit Court two years ago against the BDA and the Clay County Commission, Judge Jack Alsop dismissed it finding WVDO had an interest in determining some of the funds it gave the Authority.

Kanawha County has original jurisdiction in lawsuits involving state agencies.

In its answer, and motion to dismiss filed July 19, Assistant Attorney General Mary Downey denied Boggs' allegations. Also, she asserted a defense WVDO "acted within its legal rights and within the proper standard of practice in the conduct of all activities."

In response to Downey's motion, Karr stated the amended complaint corrected the "perceived flaws in the original complaint argued by the West Virginia Development Office to exist, as per the West Virginia Development Office's motion to dismiss previously filed herein, which has yet be heard by the Court." Among the language omitted in the amended complaint is Boggs' claim WVDO is not only CCBDA's funding source, but it also "has an interest in the determination of various receipts and disbursements."

Boggs' amended complaint contains all the original claims he made against CCBDA and the Commission that include the Authority holding meetings, and making decisions without the minimum number of members, failing to publish its quarterly and annual reports from 2008-2010 and re-appointing him as member on a month-to-month basis instead of a three-year term. Also, the amended complaint continues to aver Boggs' termination from the Board in July 2010 was due to his refusal in "remaining quiet about the above-mentioned statutory violations"

Records show, Judge Charles E. King Jr. has yet to rule on any of the motions including another one made by Karr seeking default judgment against the Commission and the Authority for failing to answer Boggs' suit after 30 days of receiving notice of it.

Kanawha Circuit Court case number 11-C-269