City takes PSDs to court over financial records

Katie Kuba
November 14, 2019

BUCKHANNON – The City of Buckhannon has filed legal actions against two public service districts to compel them to hand over financial documents.

City attorney Tom O’Neill on Thursday filed petitions in Upshur County Circuit Court against the Tennerton Public Service District, a sewer utility, and Hodgesville Public Service District, a water utility, to force both entities to comply with its requests to provide financial records pursuant to the Freedom of Information Act.

The documents also name Terry Gould, who is the manager of both PSDs, “as custodian of public records” for Tennerton PSD and Hodgesville PSD.

O’Neill filed two petitions for injunctive relief to compel the PSDs to respond to the FOIA requests the city sent Oct. 4, 2019.

The petition states that on Oct. 4 the city delivered to both public service districts “a written request for certain public records,” including:

Copies of Tennerton PSD’s and Hodgesville PSD’s fiscal year budgets for 2018-2019

Copies of the Tennerton PSD’s and Hodgesville PSD’s fiscal year budgets for 2019-2020

Copies of each PSD’s most current financial statements, “including annual profit and loss statement[s], statement[s] of cash flows and balance sheets”

Rosters of all individuals employed by the Tennerton and Hodgesville PSDs over the past year, including their salaries and pay rates

Rosters of all people “compensated for work on behalf” of Tennerton and Hodgesville PSDs over the past 12 months, “whether employees or nonemployees,” including rates of pay.

Tennerton PSD’s and Hodgesville PSD’s most recent audits

In the filing Thursday, O’Neill cites state code, saying it requires FOIA respondents to provide the requested documents “no later than five days from the date of request” except for weekends or legal holidays.

The Freedom of Information Act, according to state code, says a public entity must, within that time frame, do one of three things: provide the requested documents; inform the person or entity when he or she can inspect or make copies of the documents; or deny the request in a written statement.

The action notes that given this time frame, the PSDs were required to respond by Oct. 11, but as of Thursday, Nov. 14, the PSDs had provided neither the documents nor a reason for denying the city’s request.

O’Neill asks the court to enjoin the Tennerton and Hodgesville PSDs “from further unlawfully withholding the requested public records” and order them to deliver the financial records “forthwith on penalty of a finding of contempt.”

The city also asks that a hearing on the matter to be scheduled for the earliest possible date.

O’Neill provided a statement to My Buckhannon on Oct. 28 explaining the city’s rationale for issuing FOIA requests.

“The city has sought the information covered by the FOIA requests for quite a long time, but has always been rebuffed,” the city attorney wrote. “PSDs are public bodies with clear responsibilities about recordkeeping and disclosure.”

The FOIA request is related to the ongoing dispute between the City of Buckhannon and Tennerton PSD regarding which entity will provide sewer service on the north side of Route 33 West. At an Oct. 31 meeting, the Upshur County Commission voted to begin the process that would allow the Tennerton PSD to expand its area of service to the area along Route 33, west of Buckhannon – an area the city says is its utility territory.

(Read the most recent developments in that decision here.)

In the Oct. 28 statement, O’Neill said city officials have concerns about the Tennerton PSD’s ability to efficiently operate additional utility lines.

“Much of our objection to Tennerton PSD’s involvement in the project on Route 33 West has to do with their operational and financial performance, including their continuing substantial indebtedness to the [city] Sanitary Board (by Tennerton PSD) and the [city] Water Board (by Hodgesville PSD). We are deeply concerned about the large volume of water continually wasted in Hodgesville’s system due to leaks, especially in light of our recent near-drought conditions.”

Gould, the manager of both PSDs, did not immediately return phone messages Thursday; however, he previously told My Buckhannon during a Nov. 8 interview that the city’s FOIA requests constituted harassment.

When asked why he hadn’t provided the financial documents, Gould said both public service districts’ annual reports were available on the West Virginia Public Service Commission website, psc.state.wv.us.

The most recent annual statistical reports for any public or private utility listed on the PSC’s website are from 2017. That year, the Hodgesville Public Service District (water utility) had an operating revenue of $664,722 and 1,199 customers. The Tennerton Public Service District (sewer utility) showed an operating revenue of $455,100 and a customer base of 884 in 2017.

A Nov. 7 letter to the West Virginia State Auditor’s Office from Upshur County Commission President Sam Nolte indicates county officials “recently became aware of two public service districts in the county (Tennerton PSD and Hodgesville PSD) that have failed to receive audits, and therefore, are not in compliance with West Virginia Code 16-13A-11.”

“Multiple letters have been sent to both PSDs throughout the last year,” the letter says, adding that Gould had provided an explanation and acknowledged “neither entity [had] received audits for a number of years.”