Marple's employment status was not listed on the agenda for the Nov. 15 meeting when she was originally fired; an addition to the personnel portion of the meeting was passed out moments before the vote.
Charleston-based public interest law firm Mountain State Justice filed a lawsuit with the state Supreme Court alleging the board knowingly violated the Open Meetings Act with its vote. It wants the court to reinstate Marple.
Flanagan is also representing the board in that case. He and board members have repeatedly said the board did not violate any laws. The board called another meeting two weeks later to discuss the matter further. At that meeting, board members voted to fire Marple again.
At that meeting, Linger made several comments as to why he thought Marple should be fired. The state superintendent is a "will and pleasure" employee; Linger and other board members have said that means the board can remove the superintendent whenever it chooses.
If any of the board's actions at the Nov. 15 meeting were perceived to have violated any laws, the next meeting corrected those problems, according to a letter Flanagan filed on the board's behalf with the state Supreme Court.
The high court is back in session next week, and the matter is supposed to be on its agenda, Flanagan said.
Department spokeswoman Liza Cordeiro said Wednesday the department was aware of Marple's intent to sue but would not comment on the matter until a complaint has been filed. Marple's replacement, Jim Phares, took the oath of office Wednesday morning.
To sue a state entity, a person must give 30 days' notice to the head of that entity and the attorney general, according to state law. Marple's letter was addressed to Linger and Darrell McGraw, outgoing state attorney general and Marple's husband.
The two parties can discuss the allegations during the 30-day window, Barber said.
"That's very, very, very common. It's uncommon not to have that," Barber said Thursday in a phone interview. "I would be surprised if we don't have some interaction in this 30-day time period."
The 30 days began Dec. 28, which means a lawsuit could be filed as early as Jan. 28. Barber said any lawsuit would be filed in Kanawha Circuit Court.