Big Byrd Said It Well

 

The Law Re: Disposal of School Property

ARTICLE 5. COUNTY BOARD OF EDUCATION.

§18-5-7. Sale of school property at public auction; rights of grantor of lands in rural communities; oil and gas leases; disposition of proceeds; lease of school property.

(a) Except as set forth in subsection (b) of this section, if at any time a county board determines that any building or any land is no longer needed for school purposes, the county board may sell, dismantle, remove or relocate the building and sell the land on which it is located at public auction, after proper notice and on such terms as it orders, to the highest responsible bidder.

(c) The county board, by the same method set forth in subsection (a) of this section for the sale of school buildings and lands, may, in lieu of offering the property for sale, enter into a lease for oil or gas or other minerals any lands or school sites owned in fee by it. The proceeds of the sales and rentals shall be placed to the credit of the fund or funds of the district as the county board may direct.

(d) The county board may make any sale of property subject to the provision that all liability for hazards associated with the premises are to be assumed by the purchaser. In any sale by the county board of improved property in which the actual consideration is less than $10,000 or in any sale of unimproved property in which the actual consideration is less than $1,000, the county board shall make any sale of property subject to the provision that all liability for hazards associated with the premises are to be assumed by the purchaser. The county board shall inform any prospective purchaser of known or suspected hazards associated with the property.

(e) Except as provided by the provisions of subsection (b) of this section, where a county board determines that any school property is no longer needed for school purposes, the county board may, upon determining that it will serve the best interests of the school system and the community, offer the property for lease. The procedure set forth in subsection (a) of this section relating to sale of school buildings and lands shall apply to leasing the school property. Any lease authorized by the provisions of this subsection shall be in writing. The writing shall include a recitation of all known or reasonably suspected hazards associated with the property, an assumption by the lessee of all liability related to all hazards, whether disclosed or not, and provisions wherein the lessee assumes all liability for any actions arising from the property during the term of the lease.

(f) Notwithstanding any provision of this section to the contrary, the provisions of this section concerning sale or lease at public auction may not apply to a county board selling, leasing or otherwise disposing of its property for a public use to the State of West Virginia, or its political subdivisions, including county commissions, for an adequate consideration without considering alone the present commercial or market value of the property.

Note:  Even the GVEDC must pay an adequate consideration.  It can not just be given to the GVEDC.

Old News

Monday, October 17, 2016

Some Times County Commissioners Just Don't Care!!

We got rid of the County Commissioner who was behind the sewage project.  Sadly,  we may have left Jamie Walker,  County Commissioner,  in the process.  He is up for re-election next year and he desperately wants to shed this property from the county portfolio.  But why?

Only the sewage pits have been publically opposed by the community.  The county has allowed the business a 99 year lease on the property with all payments being applied to the purchase at some time in the future on three acres of the property.

The sewage pits were a fiasco just waiting for transfer of the deed.  In fact,  the county commission initially approved the transfer but backed out when it saw what an uproar it had caused in the community.  Apparently, only a few people wanted the smell of raw sewage wafting its fragrance over their homes.  (There were a few folks who didn't mind.)  But by and large,  when it came time to re-elect David Fleming they decided that he was not a good bet for their future and they replaced him with David McLaughlin, a local farmer.

This is now his first test of common sense.  I can name four other county commissioners who have turned their backs on their county and attempted to approve something that did not match with the community's values--David Fleming, James Carpenter, Reta Griffith,  and Joel Callison.  The Sharp's Farm controversy took them out of the equation. 

Ironically,  that was about sewage too!!  Now David McLaughlin,  Bill Beard, and Jamie Walker are flirting with doing great damage to the county with this proposal to dispose of the Slaven Property at Green Bank.

A group of local folks at Green Bank rose up and signed a petition opposing the sewage pit deal and for a while we thought it was dead.  (It may still be but that remains to be seen.)

Since the county commissioners don't have the balls to do the right thing with the property,  they have decided to transfer it back to the Board of Education from which it originated many years ago.  Now, remember,  they had no problem transferring the property (three acres) to the Greenbrier Valley Economic Development Authority.

A group of local citizens have proposed that the property be used as a magnet for tourists via a boardwalk (due to the sensitive nature of the wetlands which are present and the rare and endangered Manno grass)  The proposal is for a park which would allow tourists to see the site which is adjacent to the ancient site of Fort Warrick.  I think that this is a great idea!!!

Walker voted to let Meck have the land to build his sewage pits.  Only when people got together and marched on the courthouse did he change his vote.

Time Is Running Out for Old Store in Marlinton

 

Methodist Church Call It Quits for Edray

Land Grab at Greenbank

First Jacob Meck wanted 9 acres to put in six sewage ponds.  Those could have include fracking fluid but most of all Greenbank would have inherited an open sewage system right across from the former GMC dealership and close to the Senior Citizens Center.  A health clinic was developed close to the property.

That didn't work out and we lost a county commissioner.

Then came the giving of all the Slaven property by the County to the Board of Education.  It actually was a good thing because the Board is more law-bound in regard to the disposal of public property.  They have to have a public auction.

But while the property was in the possession of the county commission, the decision was make to circumvent the "public" disposal law by transferring a selected number of acres to the Greenbrier Valley Economic Development Corporation.  The property was then leased to Jacob Meck for $50 per month for 99 years.  Of course, the GVED corporation collected the $50.  Meck went on to put in a car crusher, a solid waste business, and a storage facility.  He later added a trucking business.

This was in addition to a type of deal at Durbin in which the GVEDC collects $8,000 per month rent.  This was a portion of the old Howes Leather Facility. (The big blue building)  The income helped the various counties in the GVEDC.  The county got no direct revenue.

Then Meck wanted a couple more acres of the Board's property.  He finally got the Board to agree to let him "use" the property. A deal was made!

Suddenly, in the Pocahontas Times we read the following:

Now Meck wants all the property.  No auction, no public sale--an exclusive deal.  A private deal!

The Board must auction its property--not dole it out or even lease it to a private person or company.  We are talking 100 plus acres.  To avoid the public sale, the scam involves a transfer to the GVEDC with that group giving it to him, selling it to him, or making a $50 a month lease did for 99 years.  

This property is worth hundreds of thousands of dollars if placed at public sale.  It is worth very little in a private, closed door deal.  He even might get a tax exempt deal like the other property.

Most importantly the school system could be giving away hundreds of thousands of dollars in public property-- Money that could repair the schools or buy vehicles. Or support Senior Citizens.

Our board must do the right thing and auction the property if it wants rid of it.  Give everybody a chance in the county to bid on it, including Jacob Meck. 

 Contact one of these people below:

Pocahontas County

The Honorable Walt Helmick, Pocahontas County Commission
Reta Griffith
Charlie Sheets
Kendall Beverage

Ask David McLaughlin who is on the County Commission and running for reelection if he supports the sale of the property.

Below is a 2015 article in the Pocahontas CommentatorPlus

The Greenbank Property

Pocahontas County owns land at Greenbank which was originally donated for a school.  It has never been used for that.  Various people have suggested possible uses.  One of the latest proposals was as a site for six open sewage pits to hold human waste from Snowshoe, etc.  The CC initially approved the proposal but got cold feet and reneged.

Prior to that Jacob Meck had persuaded the Greenbrier Valley Economic Development Authority to lease him a portion of the Greenbank property which they had been deeded for that purpose by the CC.  Meck built a large building on the property along with three public, paid storage units which he rents out.  He also placed a car crusher on the property and has been running a salvage business from the sit.   You will remember that some local persons including the superintendent at Cass were indicted for selling railroad steel to Meck.

Meck had several tanks along Deer Creek to store Snowshoe's sewage but they started floating on him and he had to dispose of them.  He now stores on the Greenbank Property.  All it all,  Meck has about 7 different businesses on the Greenbank property.  He distributes human waste from the honey wagons on Bill Heavener's farm.

There was a community revolt when he attempted to put in the six open pit sewage ponds right across from the senior center and the new medical center.  The plan blew up.  His favorite county commissioner,  David Fleming, was unelected as CC.

Well, now a new plan has been presented:  using the property for "agricultural purposes."  Unfortunately,  there is no definitive definition as to what is meant by that. 

 After all,  Jacob Meck sprays human waste on a local farm for fertilizer.  Is that what is meant by "agricultural purpose." 

 Or perhaps, we have a closeted "pig farm" coming out way. 

Police Misconduct Resulted in $500 Loss to Spouse

 We have received a report from a lady who has suffered a $500 loss because a deputy was in too big a hurry to take her husband to jail.

According to her report, her husband was savagely beaten on the streets of Marlinton one night by a thug. As a consequence, both her and the husband were arrested.  He was was taken to the Pocahontas Courthouse to be arraigned at the courthouse.  The magistrate was called and was on her way to the court house.  Despite one deputy's pleading to wait on the magistrate to get to the courthouse,  Deputy Brian Shinaberry rushed her husband off to Tygart's Valley Regional jail.  The magistrate was left  in the lurch and his wife had to wait until morning to bail him out.

She claims that she had the money to make bail on her person but the deputy's action resulted in her husband being jailed overnight and making bail the next day.

Due process demands that within certain time constraints all arrested persons have a right to be arraigned before a magistrate asap. 

It is the magistrates job to order bail, not a sheriff's deputy!  One person actually lost $900 when the magistrate refused to make bail.  She was admonished for this.  That has happened since then.  So this appears to be a new device to jail people before the magistrate gets there. It is a lose, lose proposition for everybody. 

The deputy owes her $500 dollars and apology AND THIS PRACTICE NEEDS TO STOP.  He should have to repay the county for its costs!!!!

This action was not the fault of the magistrate but the fault of the deputy, Shinaberry.  The matter could have been handled that night but instead the deputy had to deliver her spouse to the Tygart's Valley jail minutes before the magistrate arrived.  It cost the deputy his time, expenses, and the county $48 dollars.

The wife had to go get her husband the next morning at Elkins.  The husband has cancer and this was an unnecessary  expense for all involved.  

This validates the Commentator's charge that Tygart's Valley is too far away for poor people.

The deputy's are too anxious to transport their charges to Elkins. 

Plus,  the jail should be returning people who make bail to Pocahontas County. 

The only person we are aware of who was transported back to the county was Ferrell Kelly. 

Matthew and Chelsea Wedding Collages (Video Affiliate of Southern Charm Photo)

Rush to Judgment

We spent the morning trying to get a copy of the report that was used to oust the Day Report Director.  To no avail!  

The County Commission office doesn't have it and we are no sure it even existed in written form at all.  It is possible that there is no written report of the committee.  It could well have been mere hearsay.

When did the committee meet and what was their agenda?  Do we have a functional "Star Chamber?"

Who attended that mysterious meeting that formulated the charges against Danny Arbogast? Was this the reason that they would not articulate the actual charges?  Perhaps there were no written charges at all.

This we do know from WVMR that there was no complaint from the grieved person it came from a relative.  It therefore was second hand information. (Not admissible in court)  

Secondly,  when and where did this committee meet!  That has to be a part of the record.  Who actually voted to remove the Director of Day Report?  And how as the choice of an Interim Director made?  (Madora Smith the secretary was chosen by someone!)

Here are the reported members of this Committee:

Sam Felton, Jeff Barlow, Gene Simmons, Public Defender, Wanda Wyatt, Missy Keatly,  Jacklyn Hollandsworth, and Pam Dale.  Jesse Grosclose is the president of the committee.

Did (do) they have a copy of the report?  Or did they ever see a copy of the report?  Was there even a report?

To what extent will the above persons will be charged with a violation of Arbogast's civil right to due process?  Will they have to empty their own wallets to pay for this? Will the county be liable since they voted to accept this report?

Will the next person face this lack of due process?

The clients of Day Report know full well that all you have to do to get rid of a Day Report director is get a relative to complain.  

Kangeroo Court in Session

The Way It was Done:

WVMR Report:  Immediately upon opening the meeting, the commissioners voted to go into executive session with only the Community Criminal Justice Board members, and County Prosecutor Eugene Simmons allowed to remain in the room with the Commissioners. Both Arbogast, and his attorney, Josh Hardy were excluded from attending the Executive Session, as well as were the press and other citizens.

The Law:

EXECUTIVE SESSIONS  

---

When may a governing body go into an executive session?

A governing body may go into an executive session for any of the reasons set forth in the Open Meetings Act at W.Va. Code § 6-9A-4. Some common grounds for going into an executive session are to discuss personnel matters or pending litigation; to consider matters involving the purchase, sale or lease of real property, or to plan or consider an official investigation.   A governing body must attempt to segregate the non-exempt portions from the exempt portions of its meeting unless segregation would make a coherent discussion impossible.

How do you convene an executive session?

A member of the governing body must make a motion to go into executive session. The motion must state in plain language the grounds for convening an executive session.

For example, a member may state that he or she is moving to go into executive session based upon the personnel exception. It is not necessary to cite the specific code provision. A governing body may go into executive session to discuss only matters that appear on the meeting agenda. 

Must the agenda state that the governing body will go into executive session?

No.  In fact, a governing body may not decide in advance of a meeting that it will go into executive session. The agenda may indicate that it is anticipated that a matter may be discussed in executive session, but the governing body may only go into executive session by a majority vote of the members present.
The agenda item must be descriptive enough to put the public on notice of the nature of the matter being discussed regardless of whether it will be discussed in an open session or executive session.
For example, an agenda item to discuss pending litigation may read, “Discuss pending lawsuit of Smith v. Jones with legal counsel.” Once again, generic agenda items such as “Discuss pending litigation” are too vague to adequately put the public on notice as to the matter to be discussed. 

May a governing body vote on matters in executive session? 

No. Votes may not be taken in an executive session. A governing body may only vote after it reconvenes in an open session.
One exception is that a governing body may vote to give its attorney settlement authority in an executive session. The fact that a governing body has authorized its attorney to engage in settlement negotiations and/or has set a settlement range is not required to be disclosed. If a settlement is reached, then the settlement agreement, including the amount, becomes a matter of public record. 

Is a governing body required to take minutes for an executive session?

No.  The decision of whether or not to take minutes for an executive session lies within the discretion of the governing body. The governing body may want to seek the advice of legal counsel concerning whether minutes should be taken. If a governing body decides to take minutes in an executive session, the Act does not require the disclosure of such minutes to the public.

The Constitution: 

Constitution of United States of America 1789 (rev. 1992)

PreambleArticle IArticle IIArticle IIIArticle IVArticle VArticle VIArticle VIIAmendment IAmendment IIAmendment IIIAmendment IVAmendment VAmendment VIAmendment VIIAmendment VIIIAmendment IXAmendment XAmendment XIAmendment XIIAmendment XIIIAmendment XIVAmendment XVAmendment XVIAmendment XVIIAmendment XVIIIAmendment XIXAmendment XXAmendment XXIAmendment XXIIAmendment XXIIIAmendment XXIVAmendment XXVAmendment XXVIAmendment XXVII

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The County Way:

Attorney Hardy spoke on behalf of Director Arbogast/ He challenged the propriety of the proceedings. Hardy said that his client has never been provided with the specifics of any allegations made against him, only generalities. Also, that his understanding is that these allegations were made on behalf of a former participant in the Day Report Program, but were not made by the participant herself, but by a family member. Hardy said the complaining person does not have any legal standing under the procedures to make an allegation on behalf of another person. Hardy further stated that Director Arbogast was not given the required opportunity to present his side of any allegations before the Community Criminal Justice Board, as should have been done before that board made any termination recommendation to the commission.

Problems:

1. Guilt by Anonymous Allegation
2. Guilt by Generalization
3.  Failure of Due Process of Law
4.  No Opportunity to Defend One's Self.

Music in Early Times

Thinking of Michael

The Norman Battle of Conquest

Condidtions in the Coal Mines (Reference)