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Not so fast! says judge to CB School Board

Colonial Beach School board member Anne Congdon will hold her elected position at least a little longer, despite the premature effort of School Board members Tim Trivett, Mike Looney and Wayne Kennedy to oust her during a meeting on September 9.
Congdon had done her homework and appeared in the Westmoreland Circuit Court on Thursday, September 24 with no attorney.
CB School Board Chairman Tim Trivett was also present at the opposite table that faced Judge Joseph J. Ellis, but Trivett let Reed-Smith law office associate Stacy Haney do all the talking to the judge.

The September 24 hearing in Circuit Court concerned the writ Congdon filed six days earlier that asked the judge to void the three School Board’s action to remove her from the elected office.
Moments earlier on September 24 the School Board filed a demurrer asserting that its three members had acted within their bounds when they declared Condgon’s position vacant due to her temporary move to her mother’s Northumberland County home.
Congdon’s Colonial Beach home was destroyed by fire and the home her family had rented in another part of town became the subject of a foreclosure and her family’s eviction and temporary relocation to her mother’s Northumberland County home.
In court on September 24 Judge Ellis was advised of the demurrer the School Board’s special counsel filed earlier that day. There had been no time for Westmoreland Circuit Court to schedule a hearing on that demurrer. The court’s only business was Congdon’s September 18 writ.
The judge explained that the normal procedure would have been a hearing on the demurrer prior to the hearing on Condgon’s writ. Because the writ was on that day’s court docket, the judge asked Congdon to present her complaint.
Congdon detailed events that occurred during the September 9 CB School Board meeting. Chairman Trivett had determined that Congdon’s position had become vacant and three members subsequently voted to remove her from the Board and solicit applications for a replacement School Board member.
That action, Congdon then asserted, “took my rights away and put the onus on the School Board to determine my residency status.”
Congdon told the judge that she six months earlier advised her School Board colleagues that housing might become an issue. Could she temporarily reside outside the town and still retain her seat?
Congdon told the judge State Board of Elections officials told her it was likely that she would be allowed to keep her seat, that she would not lose her residency status if she in fact planned to return when the home that was destroyed by fire was rendered habitable.
“The house is under construction, with plans on file in the zoning office,” she said of that property’s current status.”
School Board special counsel Haney tried to convince Judge Ellis of the merits of the September 24 demurrer. State law gave the School Board the ability to determine that Congdon’s departure from Colonial Beach created a vacancy on the Board and the Board was correct when it initiated measures to fill the vacancy.
“If [the member] ceased to be a resident, the position would be deemed vacant,” the lawyer told the judge.
Judge Ellis asked Haney to show him the statute that gave the School Board authority to remove Anne Congdon from the Board, but Haney’s best answer was that the seat became “vacant when she moved out of the town.”
“The statute says it shall be deemed but it doesn’t say the School Board has the authority,” Judge Ellis countered.
Haney countered that the School Board’s action of September 9 “was not covered by the writ of prohibition. The School Board acted pursuant to the statute. It was not a quasi-judicial action,” she maintained.
Judge Ellis got down to the crucial question of whether the Circuit Court or the School Board has the standing to decide if a vacancy exists. The judge refused to yield, advising that the case law is clear. Only the Circuit Court has the authority to make that determination.
“The court has not been asked today to decide if she’s a resident,” the judge related.
“Right now the issue is whether the School Board had the authority to replace her and I disagree that [they do].”
“The writ doesn’t apply,” interjected Haney.
“I disagree,” the judge responded. “Today I am asked to prevent her from being replaced.”
Judge Ellis then explained to the School Board’s special counsel that the School Board or some other party would need to file something in order to enable the court to determine if Congdon is still a Colonial Beach resident with standing to retain her seat
Haney argued that case law referenced by the judge has no bearing on the Colonial Beach School Board action of September 9 to oust member Anne Congdon.
The judge was undaunted. “An elected official can’t make this decision. The Circuit Court has to decide who deems what. Right now the only issue [before this court] is whether she can be removed by the School Board.”
Judge Ellis again made it known that the court cannot make a determination on School Board member Congdon’s residency status until a petition soliciting such a determination is brought before the court.
Returning to the School Board counsel’s claim that the School Board has the legal standing to declare Congdon’s position vacant, the judge directed Haney to produce the enabling statute.
“If there’s any legal authority, let me know what it is. If she’s a nonresident, there is no question. The court makes its factual determination upon petition [filed by the School Board]. Absent an action [from the court, the question is], “Does the School board have unilateral authority to remove and replace [its member]?”
“The School Board is directed not to fill the position,” the Judge Ellis stated.
“The court was not asked to decide if [Anne Congdon] is a resident, only if the School Board can do [what] it [did] in the matter [of declaring a vacancy and attempting to locate a replacement],” was the judge’s final statement on the September 24 Anne Congdon question.
When the court’s business was finished, School Board Chairman Tim Trivett said he intended to meet with Westmoreland County Commonwealth’s Attorney Dean Atkins. Congdon disclosed in the September 23 edition of this paper that Trivett had conferred with Atkins prior to the School Board’s September 9 attempt to oust her from her seat.

 

By Betsy Ficklin
 

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