June 15, 2014
By Ron Gregory
CHARLESTON — A member-elect of the Mingo County Board of Education apparently can take office, although the state Ethics Commission appears concerned about potential conflicts.
Ethics Commission General Counsel Kim Weber referred a reporter to advisory opinion 2014-08 regarding questions about Mingo County school board member-elect Mark Colegrove. The commission is operating without a permanent director since the termination of Joan Parker two weeks ago. Weber responded to a reporter’s questions by citing the 2014-08 opinion.
The state Ethics Commission is prohibited from confirming that a complaint has been filed. Normally, in practice, commission staff point reporters to applicable decisions already issued by the panel.
Colegrove, along with his wife, Maxine, has a pending 2012 lawsuit on behalf of their child, who was allegedly injured on a school playground. Although the suit apparently was not an issue in the May 13 primary election, questions have arisen since the election about Colegrove’s ability to serve. Mingo County Commission President Greg “Hootie” Smith is one of Colegrove’s attorneys in the pending court action.
The opinion cited by Weber was in response to a question from an appointed member of a county solid waste authority. Basically, the opinion says the appointed member can serve on the authority while his or her business has a suit pending against the agency, but must insulate himself or herself from all discussions and actions concerning the lawsuit. The 2014-08 opinion, and others issued by the commission, makes it clear that serving on a board while having a lawsuit pending gives the “appearance of impropriety.”
That means, according to Weber, that Colegrove can serve but cannot participate in any communication concerning his and his wife’s suit against the board. Among the issues considered by the commission in their original decision was West Virginia Code 6B-2-5(b) which says, “a public official or public employee may not knowingly and intentionally use his or her office or the prestige of his or her office for his or her private gain or that of another person.”
A second section of code noted is 6B-2-5(e) which states, “No present or former employee may knowingly and improperly disclose any confidential information acquired by him or her in the course of his or her official duties nor use such information to further his or her personal interests or the interests of another person.”
The opinion also says a member of a public body cannot vote if “they, or an immediate family member … have a financial interest.”
The opinion declares that an affected member must “excuse him or herself from participating in the discussion and decision-making process by physically removing him or herself from the room during the period, fully disclosing his or her interest and recusing him or herself from voting on the issue.”
Weber also cited advisory opinion 2011-16, which says a board member is prohibited from “using confidential information obtained as a consequence of his public position to further his personal interests.”
That opinion continues, “(the board member is required) to recuse himself from being involved in deliberations or votes relating to the lawsuit, including but not limited to, litigation strategy and matters relating to settlement negotiations, if any. Additionally, the meeting minutes must reflect the basis for the recusal and that the board member left the room during all consideration, discussion and vote on the item under consideration.”
The decision further prohibits a member from informally communicating with fellow board members concerning the suit. It adds that the commission recognizes that the prohibitions imposed may impact whether the board member can fully carry out his duties. “A board member who — fairly or not — is perceived to have a conflict of interest between (his) public and private roles does not engender the trust and confidence that the public position requires.”
Father Douglas Sutton, acting chair of the commission at the time, signed the opinion cited by Weber.
Colegrove’s attorneys, Smith and Christopher Heavens filed the lawsuit in September 2012 in Mingo County Circuit Court.
A spokesman for the state Board of Education was on leave this week and unavailable to answer a reporter’s questions. A receptionist referred the reporter to the ethics commission.
Telephone calls to the number Colegrove listed on his campaign financial reports were not returned by press time.