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IN THE WEST VIRGINIA SUPREME COURT OF APPEALS
No. 18-0228

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THE COUNTY COMMISSION OF DODDRIDGE COUNTY,
SITTING AS THE BOARD OF ASSESSMENT APPEALS
AND BOARD OF EQUALIZATION,
Respondent Below, Petitioner,

v.

ANTERO RESOURCES CORPORATION,
Petitioner Below, Respondent.

AMICUS CURIAE BRIEF OF STEVEN L. PAINE,
WEST VIRGINIA STATE SUPERINTENDENT OF SCHOOLS

PATRICK MORRISEY
ATTORNEY GENERAL

KELL! D. TALBOTT (WVSB #4995)
SENIOR OEPUTY ATTORNEY GENERAL
812 Quarrier Street , Second Floor
Charleston, West Virginia 2530]

(304) 558·8989 (phone)
(304) 558·4509 (fax)
Kelli. D. T alhott@ wvago.gov

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 TABLE OF CONTENTS

I.

INTRODUCT ION ........... ... ... . ..... . . .. . . .. . . . . . .. .. .. .. ......... .. I

II.

BACKGROUND

III.

DISCUSSION ...

. .. 5

THE CIRCU IT COURrS RULING WILL DIRECTLY IMPACT REVENUES
TO THE SCHOOLS IN DODDRIDGE COUNTY AND OTHER SIMILARLY
SITUATED COUNTIES, AS WELL AS THE GENERAL REVENUE OF THE
STATE. .......
. .. .... ...... . . ...... .... ............. . ...

...5

IV.

.....•.. .....•......•. . ......•. . . . . .• .. . . . ... .... ..... 2

CONCLUSION ..... . . ...... . . ...... . ... . .... . .... . ..... .. . , . ... ... . .. 7

 TABLE OF AUT HORI TI ES

CASES

Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) ...... " ....................... 2

STATUTES

W. Va. Code § 11·8·6f ..................•... . . ...... ..•................. . "",, 4
W. Va. Code § 18·3· 9 ................... . .. . . .

.. ." .5

W. Va. Code § 18·9A·I ....... . . . . ... . .. . .. .. . . ... . . .. ... .. .. . . . . . .............. 3
W. Va. Code § 18·9A·3 ...... . ....... . . . ... . .. . . ......... . . ....... . .... . . ....... 3
W. Va. Code § 18·9A·4 ................ . ...... .. ............. . ............ .. .... 3
W. Va. Code § 18·9A· 5 ........ . ....... . ...... • ......•..... ... ...........•...... 3
W. Va. Code § 18·9A·6 ...... . .•... . .. . ... . . . .. .. . . .. ... . .. . ... . . ... . .... .. " .. 3
W. Va. Code § 18·9A· 7 ....... . •............. . .................... . ...... • ...... 3
W. Va. Code § 18·9A·8 ....... • ..................... • ............ • ...... .. ...... 3
W. Va. Code § 18·9A·9 ......... ... .. .. . ........ ...... ......... . ........ . . . . . . . 3
W. Va. Code § 18·9A·1 0 ....... .. . . . . . . . . ... . ... ... .... . . . .... . . .. ... . . .. . . . . " 3
W. Va. Code § 18·9A·11 ..... ... ............•............. • ..... . ...... .. ....... 4
W. Va. Code § 18· 9A·12 .... .......... . . ... ...... .. . ... ... . ........ . . . ... . . ..... 3

OT HER

W. Va. Const. Art. XII , § I ..... . . . ... ... . ..... . . .. .... . .... ... ..... . .. .... . . ... . 2
W. Va. Const. Art. XII , § 2 ................. . ................... . ...... . ......... 2

II

 IN THE WEST VIRGINIA SU PREM E C O URT Of APPEALS
No. 18-02 28

THE COUNTY C OMMISS ION OF DODDRIDGE C O UNTY,
SITTING AS TH E BOARD OF ASSESSMENT APPEALS
AN D BOAR D OF EQUA LIZATION ,

Respond ent Below, Petitioner,

v.

ANTERO RESO URCES CO RPORATION,

Petitioner Below, Respondent.

AMICUS CURIAE BRIEF OF STEVEN L. PAIN E,
W EST VIRGINIA STATE SUPERINTENDENT OF SC HOOLS
I.

INTRODUCTION
Comes now Steven L. Paine, the West Virgi nia State Superintendent of Schoo ls, by counsel,
Kelli D. Talbott, Senio r Deputy Attorney Genera l, and fi les this am icus curiae brief pursuant to Rule

30(a) of the West Virginia Rules of Appellate Procedure. The State Superi ntendent submits this
amicus brief not to argue the various tax law issues that are presen ted and that wi ll undoubtedly be
fulty briefed by the parties to th is casco Instead, the State Superintendent files this amicus brief to
provide important info rmation to this Court about the substant ial adverse impact thai wii1 ensue if
the Circui t Court ' s decision is left to stand and available school funding revenues are decreased in
Doddridge County and othe r similarly situated counties.

 As the chief school officer of this State pursuant to Article XII , § 2 of thc West Virginia
Consti tuti on, the State Superin tendent is in a unique pos ition to weigh in on this case and provide
mean ingful input on the real worl d impact to schools. The debate in this case over the specific legal
issues may seem to some like an esoteric academic exercise. Yet , the consequences of an advcrse
outcome will have a d ircct impact on students, educators and all taxpayers and citizens in this State
who value the fundamental constitutional right

10

an education enshrined in our Constitution. I

Because adequa te educatio n funding is necessary to ensure the de livery of that fundamental
constitutiona l right, this case prese nts important questions. Indeed, as this Cou rt held in Pauley v.
Kelly, 162 W. Va. 672 , 719, 255 S.E.2d 859, 884 ( 1979), " [o]urbasic law makes education's funding

second in priori ty on ly to payme nt of the State debt, and ahead of every other State func tion. Our
Constitution manifests, throughout, the peo ple's clear mandate to the Legislature, that publi c
education is a prime function of our State government." It is in the context of this constitut ional
mandate that the State Superintendent files this amicus curiae brief to urge this Court to reverse the
order of the Circuit Court of Doddridge County.

II.

BACKGROUND
The C ircuit Court of Dodd ridge County entered an underlying order on appeal in this ease
that overturned the manner in wh ich the Doddridge County Commission and the State Tax
Department valued Anlero Resources' producing oil and gas wel ls in Doddridge County. Asaresult ,
of the Ci rcu it Court's order, it is the Stale Supe rintendent 'S understand in g that there will be a

West Virgi nia Constitution Article XII , § I manda tes that a thorough and efficicrll system of
rree schools be provided in this Stale.
I

2

 consequential reducti on

In

lax revenues in Doddridge County and other oil and gas producing
I

counties.
This reduction will directly impact the available revenues for the public schools in Doddridge
and other similarly si tuated coun ties. Moreover, the reduction in tax revenues w ill have a statewide
impact inasm uch as it will necessarily cause downward pressure on the general revenues to the State
because the Stale will have to appropriate more general revenue doltars to ensure that affected

counties can meet the minimum financial Ocor that is sct forth in the West Virginia Public School
Support Plan (PSSP), West Virginia Code §§ IS-9A-l ef seq.
To understand the impact, it is necessary to lmdcrstand the fund ame ntals of the PSSP. The
PSSP statutori ly fixe s both the State and county responsibilities for finan cing schoo ls. Its purpose
is to provide a bas ic level of support to all county school systems so that there will be an "equitable
opportunity" for all children regardless of where they live. West Virginia Code § l8·9A· I . Under
the PSSP , the counties arc divided into four population densities based upon the number of students
per square mile. The population density of each county is considered in several of the basic step
allowances.
These step all owances provide a basic level of funding for educator, service personnel and
professional student support personnel sa laries and benefits, student transportat ion costs, operation
and maintenance expenses, substitute and faculty senate costs, and the costs for improvement of
instructional programs, technology and advanced placement programs. West Virginia Code §§ 18·
9A-3 , IS-9A -4 , IS-9J\-5, l8 -9A-6, 18-9A-7, IS-9A-8, t S-9A -9 and t 8-9A-l O.
Once the step allowances are added up, a total basic program allowance is detennined for
each county. West Virginia Code § 18·9A· 12. The total basic program allowance is the total

3

 !

amount of fund ing determined by ou r Legi s latu re to be necessary to provide, base level resources to

!
deliver a thOrolJgh and crficien l education to the students enrolled in each county system. T he total
bas ic program a llowa nce is then split between the State and each county based upon the port ion of

the lotal that each count y has the means to contribute for the ir " local share."
"Loca l share" is th e computation of a county' s projected regular levy properly lax collections
for a given year. West Virginia Code § IS-9A- ll . " Local share" is computed by multiplying the
taxable assessed va luatio n of all property in the school district for the current fiscal year, as certi fi ed
by the county assessor, by ni nety percent o f the regular levy rates for the year, as set by the
Legis lature. Assessed values for Tax Incremcnt Fi nancing (TIF) di stricts are subtracted from the
taxable assessed valuations of each county as applicable. And , the estimated regular levy tax
col lect ions fo r each cou nty are reduced by fo ur percent for an allowance for disco unts, exonerations
and delinquencies and the app licable percentage fo r the Assessor's Val uation Fund. An adjustment
is also made for county boards of education that qual ify under the Growth County School Facilities
Act, West Virginia Code § \\-8-6f.
County boards of education are autho rized to levy an excess levy if approved by a majority
orthe voters. Fo rt y-two offi fly-fiv e counti es (including Doddridge) had such levies in place for the
20 17-2018 year. Projected tax co ll ections from excess lev ies are no t included in the determi nat ion
of " local share."
Because the ru ling of the Circuit Court of Doddridge County impacts the coun ty ' s regular
levy prope rty tax collect ions, it will directl y im pact the com putation of the tota l basic program
allowance fo r the County. A discussion of the particulars for Doddridge County and other counties
wi ll be set forth in the next segment o f thi s amicus brief.

4

 III.
DISCUSSION
THE CIR CUIT COURT'S RULING WILL DIRECTL Y IMPACT REVENUES TO
THE SC IIOOLS IN DODDRlDGE COUNTY AND OTliER SIMILARLY
SITUATED COUNTIES, AS WELL AS THE GENERAL REVENUE OF THE
STATE.

Based upon information provided by the State Tax Department, it is estimated that the total
property tax dollars for oil and gas producing properties in some count ies coul d be reduced by as
much as fifty percent as a result of the Doddridge County C ircu it Court decision. Using the State
Tax Department's infonnation, the Department of Education 2 conducted computations to assess the

impact on Doddridge County. The estimated reduction in " local share" for Doddridge Coun ty for
the 20 17-20 18 fiscal year is $2,053, 103. As out lined above, a reduction in the county's "local share"
means that the State is responsible under the PSSP to make up the difference to meet the county's
total basic program allowance. However, because the regular levy collections for Doddridge County
were projected to be relatively high during the 2017-2018 year, the local share calcu lation for the
County was reduced by $1 ,502,338 so thaI it d id nOl exceed the total basic foundat ion all owance.
As a resu lt, the Department o f Education estimates that the Sta te wil l be responsi bl e for
appropriating $550,765 to Doddridge County if the Circui t Court decision stands.
Also , it is important to note that the Departmen t of Education ' s computations project that due
to the estimated reduction in excess levy tax co ll ections and regular levy tax co ll ections flowing
from the Doddridge County Circuit Court decision , the Doddridge County Board of Education stands

2 Pursuant to West Vi rgin ia Code § 18-3-9, the Slate Superi ntendent is req uired to maintai n a
Department of Education at his office at the Slale Capito l to carry into effect the school laws, including
the PSSP.

5

 to lose approximately $4,7 19,581 in overall propeny tax revenue thai will inot be made up through
the PSSP or any other source. The loss of this revenue will force the Doddridge County Board of
Education to make reductions in spending, panicu larly in those areas Ihal are included in the
County's excess levy call fo r spe nd ing on textbooks. educatio nal technology, fi ne arts and
performing arts, activity buses, vocational programs, building operations and maintenance, school
health programs, 4-1-1 programs, ex tracurricular programs and employee salaries and benefits.
For example, Doddridge Coun ty will likely be forced to rcduce the Counly's local sa lary
supplemen t for educators and other cmployees that is funded by the excess levy. The Doddridge
County salary supplement was increased by ten percent during the 2016-2017 fiscal year, which
provided an average annual salary increase of $4,654 for professional employees and $2,625 for
service personnel .
The Doddridge County Board of Education is also projected to sec a reduction in bond levy
taxes in the amount 0[$199,116 from the oil and gas industry. However, because the County's
overa ll bond ob li gation will remain unchanged , the County wi ll be required to increase the bond levy
rale charged to taxpayers in order

10

generate the necessary amount of bond levy taxes to meet thc

required debt service amounts . This will increase the overall tax burden on the taxpayers in
Dodd ridge County.
The prccedent set by the Doddridge County Circuit Court order will necessarily require the
State Tax Department to change the way assessed values are calculated for producing oi l and gas
wells in al l counties to achieve uniformity. This will reduce the means that a number of count ies will
have to su pply " loca l share" under the PSSP. The Department of Educatio n's estimated statewide
reduc tion in "local share" for all affected counties is $12,774 ,0 15, which means that the State will

6

 be requ ired under the PSSP to increase the amoun t of State fun ding to the afrected county boards of
educat ion ou t of the ge neral revenues of this State. Unless there is an increase in general revenues
through increased revenue collections or tax increases, the State will have to make budgetary cuts
elsewhere in order to comply with the existing total basic program allowancc set fo rth in the PSSP
statutes.
In addit ion, the Doddridge Coun ty precedent will cause affected county boards of education
to experience a total reduction in excess levy revenues in the amount of $ 15,840,640 and an
additiona l total reduction of$2,38 1,559 in regu lar levy collections that \>,tillnot be made up by the
State through the PSSP. Like the Doddridge County Board of Education, those counties will simply
have to reduce spending for thi ngs like teacher salaries, technology, and other operations in order
to address the loss in reve nues. Thi s undoubted ly will have a mark ed impact upon the delivery of
a high Qua lity education to hund reds of studen ts. In effect, the students and teachers in the impacted
counties will become the collateral damage in thi s debate over the taxation of oil and gas wells.
Because of these impacts, the State Superintendent is deeply conce rned about the outcome
of thi s case and the effect upon the State's sc hools. The State Superin tenden t urges this Court to
reflect upon these impacts in its decision of this case.

IV.
CONCLUSION

WHEREFORE, based upon the fo regoing, Steven L. Paine, the West Vi rgi nia State
Superintendent of Schoo ls respectfully requests that this Court reverse the ordcr of the Circuit Court
of Doddridge County.

7

 STEVEN L. PAINE, WEST VIRGINIA STATE
SVl'ERINTENDENT OF SCHOOLS
By Counsel

PATRICK MORRISEY
ATTORNEY GENERAL

KELL! D. TALBOTT (WVSB #4995)
SENIOR DEPUTY ATTORNEY GENERAL
812 Quarrier Street, Second Floor
Charleston, West Virginia 25301

(304) 558-8989 (phone)
(304) 558-4509 (fax)
Kcll i. D. T alboWw,wvago.gov

8

 CERTIFICATE OF SERV ICE

I, Kelli D. Talbott, Senior Deputy Attorney General for the State of West Virginia, do
hereby certify that a true and accurate copy of the forego ing Amicus Curiae Brief of Steven L.

Paine, West Virginia State Superintendent of Schools was served on this

8'~y of June,

20 18, via United States mai l, First Class, postage prepaid to the following:

Jonathan Nicol
Lin dsay Gainer
Kay Casto & Chaney, PLLC
Post Office Box 2031
Charl eston, West Virgin ia 25327

Brandy D. Bell
Kay Casto & Chaney, PLLC
1085 Van Voorh is Road, Suite 100
Morgantown, West Virginia 26505
Craig A. Griffith

John J. Meadows
Steptoe & Johnson, PLLC
Post Office Box 1588
Charl eston, West Virginia 25326
Katherine A. Schuhz
L. Wayne Williams
West Virginia Attorney General

1900 Kanawha Boulevard, East, Room W·435
Charleston , West V irginia 25305

~.£)~
KELLI D. TA LB OTT