Ohio Co. judge denies teacher's request for immediate injunction, but says he'll conduct hearing later

By Chris Dickerson | Feb 25, 2019

WHEELING – An Ohio County judge has denied a teacher's request for immediate injunctive relief regarding the county school board's decision to go into executive session to discuss matters related to the recent teacher strike.

Ohio Circuit Judge Michael Olejasz issued his order Feb. 25 denying Jennifer Craig's petition for restraining order and injunctive relief she filed earlier in the day.

Her filing said she feared the school board would hold "an illegal hearing” this evening following the suspension of the controversial state Senate omnibus education reform bill and another alleged illegal school board hearing last week.

In his order, Olejasz ruled that the school board's executive session at its Feb. 19 meeting did not violate state code.


Olejasz  

But, the judge said he will conduct a hearing later "as to the actual propriety of the executive session at issue" and that the board's stated purpose of seeking advice from counsel was proper.

"However, this court also notes that entering into executive session only for the board members to 'express their opinions' or simply discuss 'contentious issues' would in and of themselves be entirely illegitimate and grossly violative of the Open Governmental Proceedings Act and an affront to the American system of government as a whole," Olejasz wrote.

Meanwhile, in the board's response to Craig's petition, board attorney Jacob Manning of Dinsmore & Shohl's Wheeling office writes that the board does not expect to discuss legal options related to the work stoppage now that the strike is over.

Craig, a special education teacher at Wheeling Middle School, filed her complaint this morning in Ohio Circuit Court. Craig also is president of the Ohio County Education Association, which is affiliated with the West Virginia Education Association.

Later on Feb. 25, Craig also filed a Freedom of Information Act request with Ohio County Board of Education President Zach Abraham and board counsel Jacob Manning of Dinsmore & Shohl's Wheeling office.

In it, Craig asks for all communications regarding executive sessions conducted by the board regarding the work stoppage of Feb. 19-20. She also seeks all audio recordings, minutes and memoranda recorded during any executive sessions regarding the work stoppage. 

In addition, Craig requests any text messages or emails to or from any Ohio County school board member regarding "the desire or need" for the board to conduct an executive session regarding the strike or regarding the need to conduct any meeting between any board members in an off-site location not publicly known or not published by the board.

In her court complaint and petition, Craig says she filed the court document “to prevent the significant and irreparable harm to the employees and teachers of Ohio County that will most certainly result” if the school board holds its meeting later in the day.

On Feb. 19 and Feb. 20, teachers across the state held a walkout in opposition to Senate Bill 451. On Feb. 19, Craig says the Ohio County Board of Education held a special meeting.

At that meeting, “Board President Zach Abraham requested that the board go into ‘Executive Session,’” Craig states in her complaint. “Immediately prior to the ‘Executive Session,’ President Abraham stated that the special board meeting was called so ‘board members could discuss matters pertaining to the work stoppage and express their opinions’ and they (the board members) would be discussing some ‘contentious issues.’”

Now, Craig says the agenda for the Feb. 25 meeting says action will be taken “Post Senate Bill 451.”

“Another illegal ‘Executive Session’ on prohibited matter is likely to occur,” Craig’s filing states. “Even though Senate Bill 451 was killed by an act of the West Virginia House of Delegates, the House Education Committee introduced a bill to amend West Virginia Code to allow county Boards of Education to go into Executive Session to discuss Board action on teacher strikes or work stoppages.”

Craig says an unidentified Northern Panhandle County Board of Education asked for the legislation to be considered. But, state code requires that a few exceptions “all meetings of any governing body shall be open to the public.

Based on Abraham’s stated purpose for the meeting, “the board’s purpose for the ‘Executive Session’ did not fall under any of the enumerated exceptions,” the filing states. “Plaintiff believes, and therefore alleges, the discussion of ‘legal options’ in regards to the work stoppage and to express their opinions falls squarely under the category of ‘general personnel policy issues’ of Ohio County schools.”

"We think the rules matter – especially Sunshine Laws – which force our elected officials to conduct business out in the open," Craig earlier told The West Virginia Record. "Our local Ohio County Board of Education works for the people and, therefore, cannot operate in private." 

Craig is being represented by Teresa Toriseva and Josh Miller of Toriseva Law in Wheeling.

Last week, the WVEA and two Putnam County attorneys filed FOIA requests with that county school board regarding its decision to keep schools open during the recent two-day strike.

Putnam was the sole county in the state to not close school for those two days, meaning its teachers and service personnel were not paid for those days like staff in the state’s other 54 counties.

Ben Barkey, a West Virginia Education Association member advocate specialist, faxed a Freedom of Information Act request Feb. 22 to Putnam Superintendent John Hudson.

In his request, Barkey seeks all written email, text message and social media communications (including Facebook Messenger) between Putnam County school board members as well as any such messages between Board President Robert Cunningham and state Senator Eric Tarr or state Senate President Mitch Carmichael from Feb. 14 to Feb. 21. He also asks for any written communications between Hudson and West Virginia Schools Superintendent Steven Paine from Feb. 14 to Feb. 20.

In addition, Barkey requests information about the number of professional employees who did not report to work during the two-day strike and the resulting savings in payroll.

Barkey, who is a Putnam County resident who has two students attending county schools, also asks for a list of the schools that “were not able to serve a meal that complied with USDA standards and the resulting amount the county will be required return or will not receive to/or from the federal government resulting from not being able to comply with the nutritional requirements to receive the payment.”

He also asks for information regarding the number of times the county used its “all call” phone notification system since Aug. 1 as well as the money the school system has spent on subcontracted services for the calendar years of 2017 and 2018.

The WVEA is the state's largest teacher organization featuring nearly 15,000 members.

Two attorneys with children who attend Putnam County schools also have delivered FOIA requests to the board.

Thomas Peyton, who manages the Peyton Law Firm in Nitro, hand-delivered his request Feb. 22 to the board offices in Winfield. The information he seeks regards the two-day teacher and service personnel strike related to an education reform bill in the Legislature.

Peyton seeks copies of any audio and video recordings of meetings of the Putnam school board from Feb. 18 to Feb. 20 as well as all notes, minutes, electronic memos or other documents that reference or document those meetings.

Peyton also requests any emails, text messages and phone recordings (including cellular phone) between any members of the school board from Feb. 18 to Feb. 20 as well as any between board members and Hudson on those days. He also requests those discussions between any board members or Hudson with members of the state Legislature for those days.

Peyton also wants documents and data showing the number of students who attended Putnam County schools on those days as well as how many school personnel worked. He also requests the food and beverage provided to students at each school on those days.

Jennifer Singletary, a former state Supreme Court attorney, hand-delivered her FOIA request Feb. 21 to Hudson and other Putnam school board officials. She seeks any written correspondence, electronic or otherwise, from “any elected official holding office or any representative of a nonprofit organization with an interest in state legislation” regarding Senate Bill 451, which was known as the Omnibus Education Reform Bill, written from Jan. 20 to Feb. 20.

The request also seeks any such correspondence from Hudson or other Putnam board officials to those elected officials or nonprofit representatives regarding the same bill within the same timeframe.

Singletary’s request also seeks correspondence between Hudson or other Putnam board officials to and from the elected officials and nonprofit representatives regarding “the decision for Putnam County Schools to remain open on February 19-20, 2019.”

Singletary also requests access to or copies of any audio content of voicemails left on the school board’s phone system and extensions between Feb. 18 and Feb. 20 regarding the decision for Putnam County schools to remain open Feb. 19 and Feb. 20.

If such audio records are not transferable, Singletary requests a time for her to listen to them in person at the board office.

At least one other FOIA has been filed by WCHS-TV.

SB 451 has been a controversial topic this legislative session.

Carmichael (R-Jackson) was the lead proponent of the Senate version of the bill, which included provisions to establish charter schools and education savings accounts for households with an income under $150,000 and other items not endorsed by the state’s teachers unions. It did include a 5 percent pay raised previously promised by Gov. Jim Justice.

The Senate version passed, but was changed in the House of Delegates to eliminate the education savings accounts and capped charter schools at two. After that version passed the House, the Senate offered an amendment featuring a maximum of seven charter schools and 1,000 education savings accounts.

When the Senate offered that version of the bill, teachers went on strike for two days. They returned to work Feb. 21 after debate on the bill ended when the House voted Feb. 19 to table the bill, essentially killing it. Teachers stayed off work Feb. 20 to ensure the bill wasn’t resurrected.

Putnam County was the only school system that didn’t close schools Feb. 19 and Feb. 20. A vast majority of Putnam County teachers did not work those two days, opting to picket outside their schools. Few students attended schools those days either, as buses did not run. Like teachers, Putnam County bus drivers, cooks, custodians, secretaries and other personnel who didn’t work were not paid for those two days

Because of the county’s decision to remain open, Putnam County school personnel who didn’t work were the only teachers in the state not paid for those two days.

Carmichael represents part of Putnam County, as does Tarr (R-Putnam), who has been the focus on discussion on social media about his interest in charter schools.

One rumor focused on Tarr wanting to invest in or open a charter school in Putnam County, which was bolstered by a section of the Senate amendment to the House version of the bill that stated legislators couldn’t profit from charter schools. The House version included that language, but the Senate amendment took that section out.

Tarr addressed those rumors Feb. 21 in his own post on Facebook.

“Amongst much of the misinformation around education reform, there are several lies being circulated on social media about me personally, cyber bullying in attempts to affect how I vote in the Senate,” Tarr wrote. “Please consider the motives and behavior of the groups circulating the libel before believing it or perpetuating it.”

Tarr, who owns a variety of businesses based in Putnam County, said he has “never had an interest in personally investing in any manner in a charter school.”

“I have never approached any person or entity about purchasing property, or any school, for the purpose of a charter school,” Tarr wrote.

He also said he respected Putnam County’s decision to keep schools open during the two-day strike, but that he didn’t try to influence that decision.

“I made no arrangement or quid pro quo of any sort to cause it,” Tarr wrote. “I was aware of a board meeting Monday night that indicated it was a possibility. I did not know until hearing it on the radio Tuesday morning that they were for sure closed [sic].”

Tarr also said he did talk to Hudson about the decision to close schools … after he accidentally called another John Hudson, who is a contractor that apparently has done work for Tarr in the past.

“Upon hearing the schools were closed Tuesday morning,” Tarr wrote, “I did call the wrong John Hudson and said, ‘Hi John, I just heard you were keeping schools open. That takes a lot of courage. I hate that our kids and parents have to endure this but I do believe Putnam County is on the right side of history. I’m with you 100 percent. Let me know if you need anything.’

“Once I realized it was the wrong one, I called the correct John Hudson and said the same thing again. As senator of the only county to stay open during the teacher strike, I believed it to be my responsibility to make sure the superintendent had an open line of communication.”

Hudson has not made any public comment about the decision to keep Putnam County schools open when the superintendents of the state’s other 54 counties opted to close schools.

Another Putnam County woman started an online petition to show Hudson that parents were disappointed in his decision to keep schools open.

Ohio Circuit Court case number 19-C-55

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