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Board seeks dismissal of former superintendent’s lawsuit

By Samuel Speciale, Education reporter

The state Board of Education filed a motion Friday asking a Kanawha judge to dismiss former state Superintendent Jorea Marple’s wrongful termination lawsuit.

Marple, who was fired by the board on Nov. 5, 2012, filed a lawsuit last month claiming the board unfairly fired her, which resulted in a “loss of reputation in the education field, loss of ability to get another job close to what she had and mental anguish.”

The lawsuit was Marple’s second against the board. The first was filed Feb. 2013 in federal court before U.S. District Judge Thomas Johnston, who dismissed the case last month at the request of Marple’s attorney.

When Marple’s attorney, Timothy Barber, filed the second lawsuit, the board was not issued a notice of intent to sue.

State law requires a person to issue a notice of intent 30 days before suing a state agency. The board chose not to officially comment until it had filed its motion.

In the motion, the board lists reasons why Marple’s claims should be dismissed — chief among them being the state Constitution giving the board immunity from liabilities.

The state Constitution says that any subdivision, officer, agent or employee of the state, except for the state of West Virginia itself, can never be made a defendant in any court of law.

The state Supreme Court ruling of Clark v Dunn established that the Board of Education is an agency and arm of the state and thus entitled to immunity from suit of monetary claims.

State code also prohibits a government agency from being ordered to pay punitive damages in any action.

The motion specifically calls for the lawsuit against former board President Wade Linger to be dismissed because it is “duplicative” and unnecessary to sue him and the board for the same thing.

The board also argues that Linger’s former position as board president gives him immunity. In Robinson v. Pack, the state Supreme Court said government officials who perform actions involving policy judgment are shielded from liability as long as their conduct does not violate their statutory or constitutional rights to do so.

Marple claims Linger had an agenda against her, but the motion said he and the board acted within their “constitutionally derived governmental functions” when they chose to fire Marple, who was considered an employee that served at the will and pleasure of the board.

Marple also claims that her termination ruined her reputation and prevents her from gaining employment in a similar capacity.

In the motion, the board said it made no statements about Marple that threatened her “good name, reputation, honor or integrity.”

In fact, Linger said on the record during a board meeting that Marple was only fired because the board wanted to go in a new direction with leadership after an audit found the Department of Education had unnecessary staff and millions of dollars in inefficiencies.

“We are not saying that superintendent Marple is any more responsible than governors, legislators, education or board members for these shortcomings,” Linger said. “We are not here to affix blame today.”

He said the problems outlined in the audit needed to be fixed and that a change in leadership was necessary.

Marple’s lawsuit also seeks relief for the board’s alleged violation of the Open Governmental Proceeding Act.

Marple says her termination violates open meeting laws because the only thing listed on that November meeting’s agenda was a personnel matter to be addressed in executive session.

The board was heavily criticized for that move, but could be protected because Marple is time barred from making any claims because she filed her suit nearly 18 months after the meeting she was terminated in occurred.

The motion, which was prepared by Pullin, Fowler, Flanagan, Brown and Poe, PLLC, said “it is clear that the plaintiff cannot succeed on her claims against the defendants under any set of facts alleged in the complaint.”

Andrea Lannom contributed to this report.

Contact writer Samuel Speciale at sam.speciale@dailymailwv.com or 304-348-4886. Follow him at www.twitter.com/wvschools.


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