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BUCKHANNON -- The City of Buckhannon has filed petitions for injunctive relief to compel Tennerton and Hodgesville Public Service Districts to respond to Freedom of Information Act requests.
City attorney Tom O'Neill said at Thursday's Sanitary Board meeting the FOIA requests had been made Oct. 4 and state law requires the FOIAs to be responded to within five days.
"We let it go for probably three weeks and I filed against both Tennerton and Hodgesville PSDs and Terry Gould since he is the custodian of records," O'Neill said. "Those have been set for hearing on Dec. 5 at 3:15 p.m."
Under the petitions filed Nov. 14 in Upshur County Circuit Court, the City of Buckhannon states it delivered to Terry Gould, the custodian of public records for the Tennerton PSD and Hodgesville PSD, a written request Oct. 4 for the following items: a copy of the each PSD's fiscal year 2019 and 2020 budgets, a copy of each PSD's most current financial statements, including annual profit and loss statement, statement of cash flows and balance sheet, a roster of employees of each PSD for the preceding year including their salaries or rate of pay; a roster of people compensated for work on behalf of the PSDs during the preceding 12 months, whether employees or nonemployees including their salaries or rate of pay and the PSDs' most recent financial audit.
Under West Virginia Code 20B-1-4(d), the PSDs had five days to furnish copies or make documents available for inspection once the request was made Oct. 4.
However, the Tennerton and Hodgesville PSDs failed to do so by Oct. 11 and to date has not tendered the requested information or denied the requests by the City of Buckhannon. Gould is the manager of both the Tennerton and Hodgesville Public Service Districts.
O'Neill said he had received verbal information that the case might be mooted by the Dec. 5 hearing if the PSDs turn over the requested items.
"If that is the case, fantastic," he said. "All we are really after is this information."
Mayor David McCauley said, "We have been asking for this information [informally] for years, but when the 33 West utility matters came up and part of our response has to be whose system has the financial integrity to undertake the project, we were trying to compare apples with apples.
"When that information is not going to be shared by somebody who says 'oh, we can do this project,' maybe we should be able to weigh in and try to determine and let the county commission determine with accurate financial information who can really do the project."
O'Neill said, "If the court were to proceed to consider the question of sanctions against these entities for their willful failure to comply with the statue, I think it is certainly probative that both Tennerton and Hodgesville PSD have a long history of being chronically non-compliant with the requirements of state law in filing reports with the Public Service Commission to the point where they have to be named as respondents in PSC's actions with some regularity to ensure that their statutorily mandated reports are filed.
"All this is going to be brought up," he said. "I have made a motion for costs associated with the action and we will see what the judge does," he said.
The meeting ended at 5:05 p.m. Thursday and the office at the Tennerton PSD and Hodgesville PSD was already closed to try to obtain a comment.
At the previous council meeting, McCauley read a strongly worded four-page response over the Upshur County Commission's vote to allow the Tennerton PSD to begin the process of extending the boundaries of the Tennerton PSD west to the county line.
"We have taken a very strong position both as a board and as a city council in opposition of those efforts," McCauley said at Thursday's sanitary board meeting.
The mayor said there were conversations and ideas being exchanged for funding and trying to reach numbers to agree on.
Just Thursday morning, McCauley said the city received a proposal submitted from J.F. Allen, one of the property owners along Route 33 West, that also involves some other property owners along Route 33 - the Marks and Shaws. Tyler Beaty with J.F. Allen, attended the sanitary board meeting.
However, McCauley said that proposal could not be voted on until the December 19 sanitary board meeting.
"Since we just received it today, other than providing copies very soon to the members of the board to reflect upon, we would have it on our agenda to take action to possibly commence projects possibly as early as spring 2020," he said. "I think we are going to get these utility issues resolved with the developers and the sanitary board and the developers and the water board coming together figuring out the formula to realize how we are going to finance and fund projects.
"We've been pretty steadfast in our position that if we get the financing lined up that we would begin the north side sewer project about March 1.
"We are starting the process to finalize plans, to apply for permitting and to secure any additional rights of way we need to create a very sound project that we believe we could have completed by November or earlier of 2020."
McCauley said almost a year prior, the sanitary board approved going forward with the northside of 33 West sewer only project and committed $100,000 towards the estimated $300,000 project.
"We aren't ready to comment on a project that would likely occur during 2021 construction season that would realize both sewer and water on the south side of 33," he said referencing the proposal from J.F. Allen.
"Our intention would be by this time in 2021, we would have complete water and sewer service to both north and south sides of 33 [West]," McCauley said.