Ambulance Fee, Building Purchase Invalidated

By Jean A. Flanagan
Moorefield Examiner –

In a scathing 31-page order, Senior Status Judge Andrew N. Frye Jr. voided Special Emergency Ambulance Fee and the Hardy County Commission’s purchase of the former Mathias-Baker Rescue Squad building, known as the Baker building. Frye also ordered the commission to “forthwith refund all moneys to those citizens which have previously paid the Special Emergency Ambulance Fee.” The order was filed in the Hardy County Circuit Clerk’s office on Friday, Aug. 8.

In Nov. 2013, a group of five Hardy County citizens petitioned the court to remove Commissioners J. Michael Teets and William “JR” Keplinger from office, nullify the purchase of the Baker building and void the Special Emergency Ambulance Fee. The case was separated and Frye was appointed to hear the two latter petitions after 22nd Circuit Court Judges Charles Parsons and H. Charles Carl recused themselves.

In the order, Frye uses the framework of West Virginia statute and case law to establish his opinion that the County Commission had no jurisdiction to decide the matters at hand because they did not set a schedule of “regular” meetings at the beginning of the year. Therefore, the judge writes, “regular sessions must be fixed in advance to give county commissions jurisdiction…” Meetings set outside of the regular “fixed in advance” meetings are considered special meetings.

Because the meetings of the Hardy County Commission were not fixed in advance and only announced at the previous meeting, Frye contends they are “special meetings” which have a different set of criteria in regard to notice and agenda. “The regular versus special session is not a distinction without difference, it is fundamental, jurisdictional and cannot be construed as meaningless,” Frye writes.

Frye goes on to address the petitioners allegations that the commissioners violated the Open Governmental Proceedings Act by not providing proper public notice of the votes to purchase the building or institute the ambulance fee.

“Based on the record, this court finds significant and chronic violations of the OGPA in the conduct of Hardy County Commission business,” Frye writes.

He cites the practice of publicly posting an “agenda” and an “appointment” list as being “inherently deceptive” considering the fact that the appointment list changes up until the day of the meeting.

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