Frank L. Blackwell
AGO 020218
No. 020218
West Virginia Attorney General Opinion
State of West Virginia Office of the Attorney General
February 2, 2018
Frank
L. Blackwell
Executive
Director
School
Building Authority of West Virginia
2300
Kanawha Boulevard, East
Charleston,
West Virginia 25311
Dear
Director Blackwell:
You
have asked for an Opinion of the Attorney General concerning
an apparent conflict between the statutory powers of the
School Building Authority of West Virginia ("the
Authority") and regulations that the Authority has
promulgated. This Opinion is being issued pursuant to West
Virginia Code § 5-3-1, which provides that the Attorney
General "shall give written opinions and advise upon
questions of law . . . whenever required to do so, in
writing, by . . . any . . . state officer, board, or
commission, or the head of any state educational . . .
institution . . . ." To the extent this Opinion relies
on facts, it is based solely upon the factual assertions set
forth in your correspondence with the Office of the Attorney
General.
You
have explained that in the wake of extensive flooding in June
of 2016 that damaged multiple schools, then-Governor Tomblin
tasked the Authority with administration of federal and state
disaster relief funding, pursuant to state law. In response
to that directive, the Authority applied for federal funding
from the Federal Emergency Management Agency
("FEMA"). At issue in your request are federal
funds intended to be used to relocate five schools in Kanawha
and Nicholas Counties that suffered substantial flood damage,
and which the United States Army Corps of Engineers have
deemed to be "subject to repetitive damage" because
they are located in a "designated floodway and/or
floodplain." You explain that the FEMA funding includes
not only the funds needed for physical construction of the
damaged school buildings, but also money to purchase real
property to rebuild the schools "out of the floodway and
flood plain, and out of harm's way."
You
further noted that because the Authority is the
"applicant" for this funding, the money will be
transferred initially from FEMA to the West Virginia
Department of Homeland Security and Emergency Management,
then to the Authority. The Authority will, in turn, transfer
the funds to the appropriate Local County Board of Education
("LCBOE") pursuant to the Authority's standard
reimbursement requisition process.
Finally,
you explained that the Authority has not historically used
state funding to purchase real property, in an effort to
maximize the funds available for school construction
projects. Consistent with this policy, you have identified a
number of Authority regulations that appear to prohibit
expending or distributing money from the Authority for
purposes of "site acquisition" for new schools.
Your
letter raises the following legal question:
To what extent is the Authority's statutory
authorization to "administer all federal funds provided
for the construction and major improvement of school
facilities" constrained by regulations that prohibit the
expenditure of Authority funds for the acquisition of real
property?
For the
reasons set forth below, we conclude that the regulations
barring the use of Authority funds for site acquisition must
yield to the Authority's governing statutes, in which the
Legislature has plainly authorized the Authority to purchase
or facilitate the purchase of real property. Accordingly, a
reviewing court would very likely conclude that the Authority
has power to distribute the FEMA funds at issue to LCBOEs to
facilitate the purchase of real property upon which to
relocate damaged schools.
Discussion
There
is no statutory impediment—direct or indirect—to
the Authority acquiring real property for the construction of
new schools, or to helping local entities acquire real
property for this purpose. Consistent with the...
