Attorneys: Interim School Board members were legally appointed

Published 2:25 pm Friday, December 24, 2021

The Isle of Wight County School Board’s appointing three interim members without first soliciting community input is legal, despite recent criticism from citizens, according to lawyers for the county and its school system.

Volpe Boykin, during public comments at the School Board’s Dec. 9 meeting, threatened to file for a “writ of mandamus” in the county’s Circuit Court to compel the board to hold after-the-fact public hearings on the appointees.

The board had voted in September to appoint Renee Dial as its interim Newport District representative after Vicky Hulick, who had previously held the seat, resigned due to having moved outside her electoral district. The board then voted in November to appoint Michael Vines and Michael Cunningham to its Windsor and Hardy District seats, respectively, after their predecessors, Julia Perkins and Alvin Wilson, also tendered their resignations.

All three interim appointments were made via a majority vote by the remaining board members following closed-session discussions, without first soliciting community input via a public hearing.

Now, Boykin is demanding to know why.

“You’ll either give me an answer before court, or you’re gonna give me an answer in court,” Boykin said.

School Board Attorney Pakapon “Pak” Phinyowattanachip of the firm Haney Phinyowattanachip PLLC confirmed to Board members at the meeting that state law — as spelled out in Virginia Code 22.1-29.1 — mandates that “no nominee or applicant whose name has not been considered at a public hearing shall be appointed as a school board member.”

The specified code references four additional state codes that spell out the circumstances to which the public hearing requirement applies. Virginia Code 24.2-228, which pertains specifically to interim appointees on an elected school board, isn’t one of them, Phinyowattanachip argued.

The interim appointee code makes no mention of a public hearing requirement.

Isle of Wight County Attorney Bobby Jones also addressed the matter at a concurrent Dec. 9 Board of Supervisors meeting, stating he and a number of the supervisors had received “multiple inquiries” as to “whether or not the School Board improperly appointed interim members.”

Virginia Code 22.1-29.1 and its public hearing requirement “is inapplicable,” Jones said, because the county had held a referendum decades ago to transition from an appointed to an elected school board — making the provisions of Virginia Title 24.2, which govern elections, the only relevant chapters.

The School Board’s procedure of appointing an interim member via majority vote following a closed session “has been used for years,” added Board Chairwoman Jackie Carr, recalling that she herself had initially been appointed on an interim basis to fill the Carrsville District seat when Robert Eley resigned in 2017 — without first needing to have her qualifications debated in a public hearing.

The Virginia School Boards Association, however, appears to agree with Boykin.

According to a July 1, 2021 VSBA guidance document titled “Filling Vacancies on Elected School Boards,” the VSBA “frequently gets questions about what to do when there is a vacancy” on an elected school board. Filling a vacancy on an elected school board is a two-step process, the document states, the first being to appoint an interim member to fill the vacant seat and the second, to schedule a special election to fill the remainder of the former member’s term.

“Virginia law provides only a few details regarding the process to be followed in making an interim appointment,” but does mandate that a “public hearing regarding the appointment must be held at least 7 days before the appointment is made,” the guidance document states, with notice of said public hearing being given at least 10 days in advance “in a newspaper with general circulation in the school division.”

But the information provided is only “of a general nature” and “readers should seek the advice of legal counsel regarding specific legal problems or questions or the application of the following information to specific factual situation,” the guidance document clarifies.

Dial attributed racist motives to the recent criticism. She, Vines and Cunningham are all African American.

With Denise Tynes serving in an elected capacity as the Smithfield District representative, the new appointees have resulted in a 4-1 Black majority on the board in a county that’s roughly 70% white, according to 2020 census data.

“I’ve gotten an email about us having to explain why two African American men and two African American women represent 80% of a county that’s white,” Dial said.

The referenced email had come from Boykin on Nov. 8, and had copied Carr, Tynes, Carrsville District School Board member-elect John Collick, Isle of Wight County Schools Superintendent Dr. Jim Thornton, all five supervisors, and the media.

“Please explain to me how two African American women and two African American men and one Caucasian man represent the racial makeup of a county that is 80% non African American,” Boykin wrote.

“My skin color has nothing to do with my ability to do this job … I’m quite offended by that,” Dial said.

“I’ve already been sent threatening emails, and I have not been in this appointed position 30 days yet,” Vines added.

Several emails Vines has received since taking office have concerned “religious beliefs and my stand on certain issues as a minister,” particularly LGBTQ rights and protections, he said.

“I’m able to look past issues of religion and make a collective decision based on the position I’ve been placed in,” Vines said. “I try not to let my religious viewpoint affect the decisions that I make. But I try to abide by the law of the land that has already been established … You don’t know where I stand. You don’t know my viewpoints.”

The Smithfield Times submitted a Freedom of Information Act request to Isle of Wight County Schools on Dec. 17 to obtain copies of the emails Vines referenced, and for any correspondence between the school system and the Isle of Wight County Sheriff’s Office concerning an investigation of the alleged threats. IWCS spokeswoman Lynn Briggs acknowledged the request the same day, but stated via email that because the school system is already on its two-week winter break, the requested records would not be available until Jan. 7.

Thornton too has previously alleged having received threatening emails.

Since the start of the current school year, he’s received four emails from an anonymous opponent of the school system’s equity and inclusion initiatives. He reported them to the Sheriff’s Office for their use of the phrase “Tick Tock, Jimmy.” But the Sheriff’s Office declined to investigate after concluding that “no statements of death or bodily harm had been made” and that the emails had come through a Switzerland-based encrypted email service.