Negotiations underway to settle 2020 fine arts lawsuit against Fairmont State

Oct. 27—FAIRMONT — A lawsuit filed two years ago challenging the closure of Fairmont State University's arts programs is on a path towards a resolution.

At the end of September, Marion County Circuit Court Judge Patrick Wilson responded to a motion in the civil suit over alleged foul play by Fairmont State in the dissolution of its theatre arts and music education programs and degrees.

In February, the court heard arguments from both the defense — Fairmont State and the plaintiffs which are three members of the Falcons Fighting for the Arts organization — on the facts of the case, and whether the defense had grounds for a summary judgment.

A summary judgment is where the judge hears the facts of the case and makes a ruling without having a jury trial.

The case comes down to two major complaints by the plaintiffs, the first states that Fairmont State's Board of Governors violated the Open Government Proceedings Act by discussing the termination of the arts programs in closed sessions. The second states that Fairmont State violated the Freedom of Information Act with unfounded redactions in documents handed over to the Falcons Fighting for the Arts.

Fairmont State also requested a summary judgment in its own favor on both counts.

In September, Judge Wilson issued a written response to the defense's request for summary judgment, and denied the request. One count alleged a violation of Open Government Proceedings Act and held the request on the count which alleged a violation of FOIA in abeyance until the plaintiffs have a chance to review the unredacted documents.

This is quite the development. In the February hearing where the request for summary judgment motion was filed, Wilson said he was leaning toward summary judgment in the case.

OGPA Violations

According to the court papers, the opinion of the court is that the case, specifically the matter of open government violations, would be best suited for a jury.

"Two of Defendant's witnesses admitted that the Defendant's committees discussed matters in executive session which were not appropriate to be withheld from the public. ... The Defendant admitted that it tied all matters related to the potential dissolution of the Music and Theatre programs together and discussed them in executive session as it viewed them as 'baked in' to other considerations," the court papers read.

"Thus, the record contains evidence which could support a finding that Defendant committed multiple violations of W.Va. code... and those violations deprived the public of the opportunity to observe Defendant's deliberations. ... As such, a jury must weigh the credibility of the evidence as so what, if any, violations of the OGPA occurred and the Defendant's motion for summary judgment should be denied."

Fairmont State argues that it took "curative action" to remedy the violations alleged to have happened in February and April 2020 by holding a fully transparent meeting in June 2020.

While the court recognized that there is precedent where "curative action" can be taken to remedy similar situations, all examples of such were taken after the party infringing on the OGPA was found guilty of such, where Fairmont State is attempting to take such action preemptively.

FOIA Violations

As for the second count, regarding violations of Freedom of Information Act, the Falcons Fighting for the Arts argue that the information that was redacted in provided documents was not legally exempt from the Freedom of Information Act.

The arguments in the matter were complicated, since in order for the plaintiffs to know if that were true, they'd need to see the unredacted documents. Judge Wilson reviewed the documents in chambers and decided the plaintiffs should be allowed to review the materials.

Fairmont State posits that the redactions are to keep personal information private and similarly filed for summary judgment in the matter as well. The judge has held this request in abeyance until the plaintiffs can review the unredacted materials and can formulate arguments from there.

Although the court found that the FOIA matter "is not ripe for a determination on summary judgment at this time."

Possible settlement

Currently the parties are in the case's second mediation period. According to an individual familiar with the case, neither side is anxious to go forward with the case, as the suit has been ongoing since late 2020.

No agreements have been signed and no plan has been put into motion, but the mediations are ongoing, and negotiations are underway.

Reach David Kirk at

304-367-2522 or by email