The Logan County school board's attorney advised board members in a letter dated earlier this month that they can't, without their superintendent's agreement, rescind the four-year contract extension for their superintendent, Phyllis Doty.
In the memorandum, attorney Shana L. O'Briant Thompson, who didn't return calls for comment Monday, opined that the board can't take such action, which members have been contemplating, because it already has approved the extension and Doty accepted it.
"To do so would be considered a unilateral cancellation of a contract, which could be considered a breach of contract and may result in a civil lawsuit by Mrs. Doty to enforce the terms," Thompson wrote.
"I do not represent Mrs. Doty, nor have I advised her regarding this contract, so I am not saying any of this as a threat that she will bring suit: I am simply advising the Board as to what it may stand to face should it take such actions," Thompson continued. "Further, I have not given Mrs. Doty a copy of this memo or any previous memos regarding this matter."
She also advised board members about a contract amendment that Doty has agreed to put on the agenda for Tuesday's board meeting. She called "impermissible" a line of the contract extension - previously approved in February - that promises the school system "will pay the employee's portion of the medical insurance coverage" for Doty.
She recommended the board raise Doty's salary by nearly $6,000 next school year to include enough money for her to offset the cost of health insurance premiums being deducted from her pay, like the deductions all other Logan school employees have - or to mutually agree to other terms. Thompson said that the board's previous pledge to pay the cost of those premiums is "a 'benefit' which was (sic) already been offered under the contract and accepted by Mrs. Doty, I am of the opinion that the Board should not simply rescind or amend this term without the mutual agreement of Mrs. Doty," once again stating Doty may have the option to file suit.
"... Though there has been conflict among the Board with the vote on the contract, I would urge that (sic) is in the best interest of the Board to agree on this matter and to vote to mutually amend the terms to include the health insurance premiums in the salary specified or with other terms that are agreed to by the parties," Thompson wrote.
Thompson wrote that both West Virginia Department of Education Chief Operations Officer Joe Panetta and Charleston-based longtime education attorney Howard Seufer Jr. "recommended the Board increase the salary specified in the contract by the amount of the (sic) paid by the employee for her health insurance premiums."
But Panetta, while he agreed that the February contract extension's insurance benefit is illegal, told the Gazette-Mail he didn't make such a recommendation. Seufer declined comment Monday.
The controversy is being fed partly by the fact that by the time the contract - which also includes $2,500 annual raises - takes effect July 1, the five-member board will have four members who didn't vote for it and don't approve of it. But Doty said she won't, as some members have publicly requested, newly agree to lower her contract extension to one year.
Former board president Jim Frye, who died of brain cancer March 8, joined the Feb. 25 meeting by teleconference and voted for the extension. He's since been replaced by Don Elkins, and three new board members elected during the May primary will take the place of Elkins and two other current members come July 1.
Board members Elkins, Phyllis Adkins and Debbie Mendez all told the Gazette-Mail they had recently discussed what to do about the contract in one-on-one, separate discussions with one another, and Mendez and Elkins also said board President Pat Joe White, who hasn't returned the Gazette-Mail's requests for comments, had discussed the issue with them.
A 2007 West Virginia Ethics Commission advisory opinion stated that "public officials could be in violation of the [Open Meetings] Act if they use a series of communications, whether face-to-face meetings, telephone conversations, or an exchange of electronic mail, with the intent of allowing a majority of the governing body to predetermine the outcome of a particular matter pending before the entity on which they serve."
Mendez, who's in her second year on the board, said that wasn't her intent and she wasn't aware of the rules surrounding such discussions that, even though they're one-on-one, add up to a majority of board members.
Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, 304-348-1254, facebook.com/ryanedwinquinn or follow @RyanEQuinn on Twitter.