CHARLES TOWN — Emails sent to the Jefferson County Commission and members of the Jefferson County Development Authority have become the basis of one of two lawsuits filed this week by a citizens group that opposes the construction of an insulation factory in Ranson.
Jefferson County Vision filed separate but similar lawsuits Monday seeking government communications and other documents from the JCDA and the JCC related to the construction of a Rockwool factory and the behind-the-scenes economic development work intended to support it.
The JCV requested the documents through formal Freedom of Information Act requests that were either denied or only partly provided, according to papers filed in Jefferson County Circuit Court.
One suit seeks complete emails between JCDA board members and county commissioners. In that case, separate emails from two JCDA board members – Julia Yuhasz, a staff member with the Hospice of the Panhandle, and farmer Lyle Tabb — were released but with some portions blacked out.
Content not blacked out in those emails, however, show concerns both have regarding what they saw as pressure made against JCDA board members to vote on Rockwool-related items without what they considered to be complete or timely information.
“I would have had many more questions if I had seen even a simple picture of this planned facility with smokestacks or been provided any amount of company marketing materials,” Yuhasz wrote in a Sept. 12 email to JCDA Chairman Eric Lewis.
The JCDA has a 21-member board of directors—including Yuhasz, Tabb and a recently added labor representative — that votes to approve formal actions of the development authority. The JCDA board has been debating whether to authorize a $7 million public utility bond to finance a water line that would serve Rockwool and other future development at the former Jefferson Orchards site.
The JCV’s other suit seeks documents related to an Aug. 8 closed-door meeting several government officials, including JCDA representatives, had with Rockwool executives and employees at the Bavarian Inn in Shepherdstown to discuss opposition to the Ranson factory.
That case challenges a JCDA decision to deny access to emails exchanged between Rockwool and government officials about the meeting on the grounds that state law is designed to protect proprietary information of corporations involved in economic development projects.
JCDA board member Dan Casto said the emails shared by Tabb and Yuhasz with the county commissioners were redacted because they contained confidential information from the JCDA’s Aug. 28 executive session.
“In its lawsuit against the Jefferson County Commission, the Jefferson County Vision alleges certain information requested pursuant to the FOIA request should be released,” Casto said. “But several members [of the JCDA] have expressed concerns about the release of that information.”
In the JCC case, County Administrator Stephanie Grove wrote JCV’s attorney that the email related to the session needed to be withheld until a complaint pending with the West Virginia Ethics Commission resolves a related legal question because
information in Yuhasz’s and Tabb’s emails was directly related to an executive session the JCDA board had in August.
Jefferson County Vision is being represented in court by Billie Garde of Clifford & Garde in Washington, D.C. Garde is a Jefferson County resident.
In an email sent to Lewis, Tabb asks whether an executive session the JCDA sat in on in August was in violation of the West Virginia’s Open Meetings Act. Tabb wrote that a meeting agenda improperly described the matter to be discussed in the executive session as a “real estate contract/legal matters.” A description he provided of the discussion was redacted in the document provided the JCV.
Moreover, a Sept. 12 email from Yuhasz to Lewis running about 11 paragraphs involves a request to table a scheduled vote that the JCDA board had planned to take to authorize the utility bond for the water line.
In the portions of her email that were not blacked out, Yuhasz asked several questions about the bond and the JCDA’s review and approval process for Rockwool. She asked why a $7 million bond is being sought when the water project is expected to cost half that amount. She also asks about documents, including a 40-page bond ordinance, provided to JCDA board members in insufficient time to review before scheduled board decisions and votes. She also indicates engineering and construction bidding by the City of Ranson over utility construction projects for the factory were “improperly handled.”
Yuhasz also references “insufficient communication” to authority board members regarding the Rockwool project, which she stated caught her and other authority board members “off guard” when citizen protests arose against the factory this summer.
“I was never given the impression that Rockwool was heavy industry, could have such significant health impacts on compromised populations, or would be building smokestacks,” she wrote. “Had such information been provided about Rockwool, members would have had over a year to conduct their own research and discuss with others. I believe that many JCDA members would have participated in a more robust discussion of this project or [sic] whether it was the ‘right fit’ for Jefferson County.”
Yuhasz wrote that she was “extremely uncomfortable voting for something that many in public leadership do not entirely understand even now or fervently oppose as a decision which creates financial obligations for Jefferson County for the next 40 years, has untold public health implications, and great potential to drastically change the character of our community.”
Casto said West Virginia State Code provides exemptions from Freedom of Information inquiries to development authorities, in part so that private companies can negotiate with jurisdictions without fear of competing jurisdictions intervening.
According to the second FOIA lawsuit, the JCV asked the development authority in August for “all documents” and written communications related to the closed-door meeting at the Bavarian Inn.
The citizens group also requested documents about the planning of the hotel meeting, presentation materials that Rockwool may have provided to anybody who attended the meeting, and copies of any invoices, receipts for any funds the JCDA spent to hold it.
That meeting was attended by eight Rockwool officials and more than a dozen federal, state and county officials in order to “speak candidly” about the facility, the court papers state. In addition to JCDA officials, West Virginia Department of Environmental Protection Secretary Austin Caperton, Jefferson County Commissioner Patsy Noland and Ranson Mayor Keith “Duke” Pierson were in attendance.
The meeting, which occurred after a June groundbreaking, was prompted by protests about the health and environmental safety of the plant, which is being built North Jefferson Elementary School.
“Documents created for, distributed at, or created after the August 4, 2018, Bavarian Inn meeting, attended by numerous public appointed officials, for the purpose of ‘candid conversations’ about public opposition to and concerns about the Rockwool project, cannot reasonably be construed to be covered under the cited exemption,” the JCV lawsuits states. “Rather, the public is entitled to the documents requested by the JCV for the purposes of holding their public officials accountable for actions taken on its behalf.”
In a letter to the JCV last month, JCDA Executive Director Nic Diehl wrote that the JCDA determined that state law prevents the disclosure of “records associated with the JCDA’s efforts to furnish assistance to a new business in West Virginia which are not agreements signed or entered into by the JCDA that obligate public funds.”
Diehl cited West Virginia Code 5B-2-1 that specifically exempts from FOIA document disclosures most records involved with state economic development projects. In a telephone interview Tuesday, he said he was not aware of the JCV lawsuits and had not received formal notice from the circuit court about them.
However, Diehl said state law establishes a legal obligation not to publicly release documents involved with economic development projects that are legally protected. Signed contracts and documents that obligate spending of public funds are considered public documents that can be released to the public, he said.
Diehl said the JCDA does not have any documents related to the Bavarian Inn meeting, except for an agenda that has already been publicly released. “In this case, I can tell you we don’t have any documents,” he said. “We didn’t have them to begin with. We do not have any documents.”
Garde said the exemption in the state disclosure law that Diehl cites is modeled after federal law that seeks to protect only proprietary information and business secrets of corporations engaged in economic development projects. She said the exemption does not protect communications between government officials about economic development projects.
“We’re seeking the government’s documents,” Garde said. “We do not believe the exemption was intended to shield the inner workings of the JCDA.”