August 11, 2013
CHARLESTON — It is likely a make-or-break week for Lincoln County School Board member Gary McCallister.
According to Joan Parker, director of the State Ethics Commission, McCallister is in a precarious situation. It may even be impossible to straighten out the situation, since McCallister failed to request an opinion about his situation prior to taking the Board’s oath of office.
At primary issue is whether or not McCallister or anyone else can serve both on the Lincoln County Board of Education and the Lincoln Public Service District. Interestingly enough, the PSD’s primary (and only) office is situate in Kanawha County, making it subject to that county for legal situations.
Nonetheless, it is the Lincoln County Commission that appointed McCallister to the PSD board long before he was a candidate for the School Board. Therein lies part of the problem.
McCallister surfaced as one of three nominees for the House of Delegates seat vacated when Democrat Josh Stowers of Lincoln resigned to accept a job in the State Treasurer’s Office last month. Many questioned whether that was legal for a School Board member to be involved in partisan politics.
However, Parker, the Ethics Commission and Secretary of State Natalie Tennant take the position that being nominated by a Delegate District Executive Committee and considered by Governor Earl Ray Tomblin is not an “election” as defined by law and, thus, McCallister did not meet the legal definition of being a “candidate.”
That having been determined, attention was then directed to Section 18-5-1a (2) and (3)(A) and (B) of the West Virginia Code. There, the Code clearly says, “A person who is a member of a county board (of education) may not engage in the following political activities: become a candidate for or hold any other public office, other than to succeed him or herself as a member of a county board subject to the following: A candidate for county board who is not currently serving on a county board may hold another public office while a candidate 9f he or she resigned from the other public office prior to taking the oath as a county board member.”
In response to a reporter’s question, Parker challenged McCallister’s claim that he asked the Ethics Commission for an opinion about his service on both boards and was told “it was okay. I got the green light.” Parker said McCallister had not sought any opinion and if he had, “he would have been told he had to resign from the PSD before taking the oath for the Board of Education.”
All of which begs the question: did McCallister break the law by knowingly taking the Board of Education oath while remaining on the PSD board? And, if so, does that make his oath of office as a School Board member invalid? At least one member of the Lincoln Board was not sure at the end of the week. Steven Priestley, a Lincoln School Board member, said, “This is the first time I’ve heard about this. I think it will take some serious looking into.”
School Superintendent Trish Lucas did not return repeated phone calls regarding the subject. McCallister told a reporter he was “unaware” of the prohibition.
When asked what the Ethics Commission would do to enforce the provision, Parker was not certain. “Our Commission is only required to enforce parts of that Code section,” she said. “Other parts are left to other agencies. We will have to see who enforces this, although we clearly issued an advisory opinion, 2004-03, that points out the impropriety of serving on the boards of both a PSD and the School Board. Parker said McCallister’s position on the Lincoln Economic Development Authority will not be challenged since it is a non-paying position. Members of PSDs are paid, however.
McCallister received seven of eight committee votes in balloting to replace Stowers. Josh Barker received all eight ballots and was eventually chosen by Tomblin. The third candidate, Wendy Elswick, withdrew from consideration the day after she was nominated.
Both the Lincoln County Commission and the Lincoln County Board of Education are scheduled to meet this week, the board on Tuesday and the commission on Thursday. Commission President Charles Vance and Commissioner K.K. Matthews said they expect McCallister’s continuing presence on the Lincoln PSD to be discussed at their meeting in Hamlin. It begins at 6 p.m.