State Supreme Court upholds school boards' right to private counsel

In what can only be described as a victory for Boards of Education and county prosecutors, the Supreme Court of Appeals ruled yesterday in Longwell, et al. v. Bd. of Ed. of Marshall County, No. 30987 (May 6, 2003) that "[w]hen a county board of education is in need of legal services, it may exercise its own discretion in determining whether to utilize the services of the county prosecuting attorney, who has a duty to represent it under W. Va. Code s 7-4-1 (1971) (Repl. Vol. 2000), or to hire its own legal counsel pursuant to West Virginia Code s 18-5- 13(l) (2002) (Supp. 2002)." Id. at Syl. Pt. 4.

The 4-1 majority (McGraw, J. dissenting) agreed with the circuit judge who appropriately summarized the matter as follows:

Clearly, by both case law and statute, boards of education in West Virginia are allowed to employ "outside" legal counsel, and for the past thirty-plus years, this practice has been followed in most, if not all, of the counties in this state. This practice is necessary, in large part, due to the ever increasing and enormous complexity of the educational law found in Chapters 18 and 18A of the West Virginia Code, along with the increasing burdens placed upon county prosecuting attorneys.

Most prosecutors simply lack the time and expertise to handle modern education law. This decision is certain to save taxpayers money by allowing school boards to hire the most qualified attorneys available to defend them against lawsuits from disgruntled employees, parents and students. A ruling for the taxpayer plaintiffs in this case would have had the perverse effect of increasing the cost to the taxpayers in the long run.