Plowing through the records

 

Here are the references to the granting of waivers found within the sources, categorized by their context:

Waivers for Green Box Fees

• Use of Private Haulers: According to Section 6.1 of the PCSWA's policies, the Green Box fee will be waived if the billed individual provides monthly receipts proving their garbage is picked up by a private hauler operating in Pocahontas County.
• Use of the "Free Day": The PCSWA permitted the waiver of the Green Box fee for residents who provided receipts proving they utilized the landfill's "free day" every single month in a fee period. If a resident skipped even one month, the waiver would be denied, which was the justification used to deny Petitioner Bernier a waiver for a six-month period in 2006. This strict requirement was reiterated to a citizen at a 2011 board meeting, emphasizing that one "cannot skip, to have the Green Box fee waived".
• Low-Income Waivers: A 2014 Freedom of Information Act (FOIA) request filed by Jerome Heinemann sought all documents and minutes regarding instances where the PCSWA granted a reduction, exemption, or "waiver of fees" for individuals on a fixed-income or low-income.
• General Mitigation Strategy: An analysis of public finance notes that "Full Waivers" can be used as a mitigation strategy to eliminate fees for certain groups to maximize social equity, though it requires subsidies from other sources.

Denied Requests to Waive Penalties and Judgments

• Illness/Late Penalty: In July 2025, a resident named Tara Faler requested that the SWA waive her $150 penalty for a late 2024 Green Box fee because she had been ill and out of town. Chairman David Henderson explained that while sympathetic, the board "cannot waive the penalty due to an illness" because it would set a poor policy.
• Past Due Judgments: In March 2021, Billy Joe Brock requested that the SWA waive $5,869.98 in legal judgments and balances owed for Green Box fees spanning from 2001 to 2013. The board declined to take action, stating their policy has always required individuals to pay their judgments in order to get property liens released.

Waivers of State Authority

• The 2014 FOIA request from Jerome Heinemann also demanded copies of documents showing instances where the West Virginia Department of Environmental Protection (WVDEP) and the Public Service Commission (WVPSC) "waived their respected authorized powers," and where the Office of the Attorney General "waived its authority" to allow the PCSWA to bypass administrative procedures.

Legal and Administrative Waivers

• Injunction Bonds: In West Virginia environmental litigation, the requirement for a private plaintiff to post a bond for an injunction "may sometimes be waived or reduced if the injunction serves a significant public interest".
• Employee Health: The SWA's Personnel Policy includes an appendix containing a "Hepatitis Vaccination Waiver" for employees.

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Based on the provided sources, there is no record of a 2-2 tie vote occurring during the Solid Waste Authority (SWA) meeting on December 4, 2013.

While only four board members were present at that meeting (Ed Riley, David Henderson, Morgan McComb, and Douglas Bernier), all recorded votes passed either unanimously (4-0) or by a 3-0 margin with one abstention. The approved motions that day included passing meeting minutes, paying November and December bills, and authorizing a recycling advertisement.

If you are looking for a 2-2 tie vote from the SWA records, there are only two such deadlocks documented in the sources:

• February 18, 2026: As we discussed previously, the board deadlocked 2-2 on whether to accept the multi-million dollar "Option 4" transfer station lease with Jacob Meck's company, JacMal, LLC.
• April 27, 2011: The board had a 2-2 tie vote that resulted in a failed motion to pay the SWA's bills. Board members Jim Burks and Doug Bernier voted against the motion specifically to protest the billing practices of the SWA's attorney, David Sims. They argued that Sims was excessively charging the SWA to review old lawsuits regarding unpaid Green Box fees that were ultimately going to be dismissed.

Please let me know if you would like to explore either of these specific meetings or topics further!

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During the April 27, 2011, Solid Waste Authority (SWA) meeting, a 2-2 tie occurred during a routine motion to pay the SWA's monthly bills. The deadlock was the result of a protest against the billing practices of the SWA’s attorney, David Sims.

Here are the specific details of how the tie unfolded and the heated debate that followed:

The Grievance Over "Nickel-and-Diming" The conflict began when board member Jim Burks questioned Sims's bill. Sims had charged the SWA additional fees to review emails and draft paperwork to formally dismiss several defendants from long-standing lawsuits over unpaid Green Box fees. Because these specific defendants were either bankrupt, deceased, or in nursing homes, Burks argued it was a waste of money to pay the attorney to pursue or formally dismiss cases where the SWA had no hope of ever collecting the debt.

When board member Kenneth "Buster" Varner made a motion to pay the bills, it resulted in a 2-2 tie, with Burks and Doug Bernier voting against it.

A Heated Confrontation Following the failed vote, Chairman Ed Riley asked for a discussion, which quickly became contentious:

• The Accusation: Doug Bernier defended his "no" vote by stating that Sims's fees were "excessive and unreasonable," and that the attorney was "nickel-and-diming us to death". He suggested the board look into hiring a different attorney.
• The Counter-Attack: Chairman Riley fired back at Bernier, stating, "you are the man costing us the money". Riley also suggested that Bernier had a severe conflict of interest and legally should not be allowed to vote on the attorney's payment, because the SWA and Sims were actively suing Bernier at that time for his own unpaid Green Box fees.

The Financial Reality The debate prompted the board to review their actual return on investment regarding the attorney's aggressive collection lawsuits. The SWA's Office Administrator presented a report showing that since July 2007, the SWA had successfully collected $165,452.76 in past-due Green Box fees. However, over that exact same period, they had paid David Sims's law firm $113,479.16 (which included his fees, court filing fees, and postage).

While they were technically making a profit, the tight margins frustrated the board members. Burks noted that they were paying out over $30,000 a year to collect $60,000, and stated, "we are not making a whole lot of money".

The Resolution After debating the ethics and necessity of pursuing old debts, Burks acknowledged that if someone owes the SWA money, they couldn't just drop it, noting "we are between a rock and a hard place and it just continues and continues". Burks then made a new motion to pay the bills, which passed unanimously (4-0).

However, the frustration lingered. Later in that same meeting, the board actively discussed the process of requesting bids from other law firms or utilizing the State Attorney General's office to find cheaper legal representation moving forward.

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 As it turns out, this is the exact context of the 2-2 tie vote on December 4, 2013, that you asked about earlier! My apologies for missing it in the previous search.

During that meeting, the SWA board debated sending a formal letter of complaint to the West Virginia Public Service Commission (PSC). The drafted letter expressed deep concern over the PSC delaying permission for the SWA to withdraw $340,000 from its construction escrow account to pay a contractor. The letter warned the PSC that these delays could cause the SWA to default on its contractual obligations, face penalties from the contractor, and lose credibility for future projects.

However, the motion to send the letter failed in a 2-2 tie because Chairman Ed Riley and David Henderson voted against it. They refused to send the complaint for two main reasons:

• Fear of Retaliation: David Henderson acknowledged that the PSC was at fault and "did not do what they should have," but he argued that the board needed to "be careful about writing letters because they may cause future problems" with the powerful state agency.
• Timing: Ed Riley argued that instead of sending a standalone complaint now, the SWA should wait and include the letter's complaints the next time they officially submitted a request to withdraw funds.

In contrast, the proponents of the letter (Doug Bernier and Morgan McComb) argued that the PSC needed to be explicitly told that their delays were causing severe operational problems. Bernier expressed profound frustration over the situation, noting that the delayed money actually belonged to the SWA, not the PSC.

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The 2-2 tie on February 18, 2026, and the evenly split decision on December 4, 2013, differed fundamentally in their financial stakes, how the deadlock mechanically occurred, and their ultimate consequences for the county.

1. Subject Matter and Financial Stakes

• 2026: The deadlock involved a highly consequential $4.1 million, 15-year public-private partnership ("Option 4") with JacMal, LLC to construct a new solid waste transfer station.
• 2013: The split centered on a minor administrative dispute: whether to send a drafted letter of concern to the Public Service Commission (PSC) after the state agency delayed the release of escrow funds, which resulted in the SWA suffering a $500 withdrawal penalty.

2. A Formal Vote vs. A Deadlocked Debate

• 2026: This was an officially recorded vote that required legal intervention. During the meeting, two members voted in favor of the multi-million-dollar lease, one voted against, and board member Ed Riley abstained. The SWA contacted the West Virginia Ethics Commission, which ruled that because only four members were present, the abstention legally functioned as a "no" vote. This ruling officially created the 2-2 tie that failed the motion.
• 2013: Although our previous conversation labeled this a "tie vote," a review of the official meeting minutes reveals that no formal motion was made and no official vote was ever taken. The four members present were simply deadlocked in a 2-2 debate. Morgan McComb and Doug Bernier strongly supported sending the complaint letter, but David Henderson and Ed Riley opposed it out of fear that angering the PSC would hurt the SWA's chances in future rate cases.

3. Resolution and Aftermath

• 2026: The tie triggered an administrative crisis that was aggressively reversed one week later. Proponents weaponized the threat of a disastrous "stop-gap" in waste services to pressure the dissenters into a reluctant, unanimous approval of the contract. This controversial reversal sparked severe public protests, anger over the lack of competitive bidding, and led directly to Ed Riley resigning from the board.
• 2013: The debate ended quietly. With the board split in opinion and no member putting forward a motion to force a vote, the SWA simply dropped the issue and the drafted complaint letter was never sent.

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During the December 4, 2013 meeting, Solid Waste Authority (SWA) board members David Henderson and Ed Riley refused to send the complaint letter because they feared that antagonizing the Public Service Commission (PSC) would jeopardize the SWA's future financial and operational requests.

Because the SWA operates as a regulated utility provider, it is highly dependent on the PSC for its financial survival. The board's fear of retaliation was rooted in several specific vulnerabilities:

• Future Escrow Withdrawals: Chairman Ed Riley explicitly warned that the SWA might soon need to ask the PSC for permission to withdraw funds from their construction escrow account to purchase a new garbage truck. Riley noted that while PSC staff had verbally indicated they might allow this, it was not guaranteed in writing. He cautioned the board that if they decided to "get onto them, they may not be willing to assist us later".
• Future Rate Cases: David Henderson argued that sending the complaint could "cause problems with future PSC cases". The PSC holds the power to approve or deny the SWA's requests to increase its tipping fees, and it subjects the SWA to thorough financial reviews by PSC analysts during every rate case.
• Broad Regulatory Power: The PSC holds extensive authority over local solid waste management systems, including the power to grant certificates of need for new facilities and the authority to approve or deny mandatory "flow control" regulations.

Ultimately, Henderson and Riley concluded that formally scolding the powerful state agency over a $500 early withdrawal penalty was a short-sighted gamble that could severely harm the SWA if the PSC decided to withhold its cooperation on major future approvals.

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During the December 17, 2025, special meeting, the Solid Waste Authority (SWA) board went into a closed executive session and controversially allowed private contractors Jacob and Malinda Meck (the owners of Allegheny Disposal LLC) to attend.

The SWA board members present for this meeting were David Henderson, David McLaughlin, Ed Riley, Phillip Cobb, and Greg Hamons (who attended via teleconference). Additionally, the SWA's attorney, David Sims, attended the meeting via Zoom, alongside SWA employees Chris McComb, Zed Weatherholt, and Mary Clendenen.

Notably, the sources highlight who was explicitly excluded from this executive session: public officials including Pocahontas County Commission President John Rebinski and Marlinton Mayor Sam Felton were not allowed to attend the closed-door discussions. Both officials were reportedly upset about being shut out of the important executive session and left the courthouse before the SWA returned to the open public meeting.

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The records of the Pocahontas County Solid Waste Authority (SWA) indicate that the board has explicitly cited four specific statutory exceptions to enter into closed executive sessions:

• Exception 2A (Personnel Matters): This exception is frequently used to protect the privacy of individuals during discussions related to SWA staff. It has been cited for general personnel matters, discussing specific employee issues, and conducting interviews with prospective employees.
• Exception 8 (Security Devices): The board has utilized this exception to discuss the development and implementation of security measures, specifically regarding the installation of surveillance systems for the Green Box sites.
• Exception 9 (Property and Commercial Competition): This is the most frequently cited exception in the provided records and is used for two distinct purposes:
  • Property Lease or Purchase: To protect the SWA's negotiating position when discussing the lease or purchase of real estate, such as the landfill property.
  • Commercial Competition: To protect sensitive strategic information when discussing matters that involve commercial competition, such as the public-private partnership negotiations for the transfer station.
• Exception 12 (Attorney-Client Privilege): This exception is used to hold confidential discussions with legal counsel. For example, during an October 2023 meeting, the board cited Exception 12 to discuss a new downgradient groundwater monitoring well under attorney-client privilege.

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Because the Solid Waste Authority (SWA) is tightly regulated by the West Virginia Public Service Commission (PSC), it cannot access its escrow funds without explicit permission. While the closure and post-closure escrow account is strictly reserved for the eventual capping and monitoring of the landfill, the PSC has indicated that the "construction escrow" account is somewhat more flexible.

Beyond the $340,000 withdrawal for cell construction in 2013, the SWA considered and requested escrow withdrawals for several other major expenses:

1. Replacing a Destroyed Compactor (2014) In July 2014, the SWA's 1990 Caterpillar compactor was severely damaged by a fire. Faced with a massive financial hurdle to replace it, the board voted to file a request with the PSC to withdraw "all available funds" from their limited-access construction escrow account. By October 2014, a PSC Utilities Analyst recommended allowing the SWA to withdraw $77,000 immediately and another $18,000 in early 2015 to combine with insurance payouts and emergency grants to buy the replacement compactor.

2. Closure Turf, Topsoil, and Leachate Maintenance (2025) As the landfill neared capacity in 2025, the SWA's operating funds were being heavily depleted by the engineering costs associated with getting their new "ClosureTurf" capping method approved. In April and May 2025, the board consulted with the PSC about requesting a withdrawal from the construction escrow account to reimburse the SWA for these turf engineering costs, the purchase of topsoil, and expensive upcoming maintenance required for the leachate treatment plant. The board agreed to proceed with this request once they compiled an itemized list of the costs.

3. Purchasing a New Garbage Truck (Future Consideration) Looking toward the future transition to a transfer station model, board member David McLaughlin suggested that if any funds were left in the construction escrow account after the landfill officially closed, the SWA might ask the PSC to let them use the money to purchase a new garbage truck. However, Chairman Ed Riley cautioned the board against relying on this plan, noting that the PSC alone decides what escrow funds can be used for and he "would not count on being able to use any of that money".

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In West Virginia law, a "usurper" or "intruder" is an individual who takes possession of a public office without any legal right, title, or color of authority, such as failing to take the mandatory constitutional oath of office. Because they lack legal authorization, the official acts of a usurper are generally void and cannot be legally saved or validated by the "de facto officer doctrine".

If an individual is deemed a usurper, they face severe legal, financial, and criminal consequences:

• Ouster via Quo Warranto: The Attorney General, a prosecuting attorney, or an "interested person" can bring a direct legal challenge against the usurper through a writ of quo warranto. If the court determines the individual failed to properly qualify, it will issue a "judgment of ouster," which immediately removes them from office and legally bars them from exercising any further authority.
• Clawbacks and Salary Forfeiture: Usurpers are strictly prohibited from receiving public compensation. If a usurper has already been paid a salary or received benefits, the state or municipality can initiate "clawback actions" to recover those public funds. Additionally, if there is a rightful (de jure) officeholder who was kept out of the seat by the usurper, that rightful official can personally sue the usurper to recover the salary paid during the period of intrusion.
• Loss of Qualified Immunity: Public officials are normally shielded from personal civil lawsuits by "qualified immunity." However, because a usurper's actions are ultra vires (beyond their legal power), they are stripped of this state-funded legal defense. This exposes the usurper to personal liability for civil rights violations, torts, and financial defaults caused by their unauthorized decisions.
• Criminal Charges for Impersonation: Knowingly exercising the functions of a public official without legal authority is a misdemeanor offense for impersonating an official.
• Permanent Disqualification for False Swearing: If a usurper signs documents claiming to have taken the oath when they have not, they can be charged with the misdemeanor of "false swearing". A conviction for this offense carries a fine, potential jail time, and makes the individual "forever incapable of holding any office of honor, trust or profit in this state," effectively ending their career in public service permanently.

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A de facto officer is an individual who operates under a "show of right" or "color of title". They have been ostensibly chosen for a public office but possess a technical defect in their qualification, such as missing a required filing deadline. To protect the public and maintain the stability of government operations, the official acts of a de facto officer are generally considered valid as to the public.

In contrast, a usurper (or intruder) is someone who takes possession of a public office without any color of right or title. For example, an individual who is elected or appointed but fails to fulfill the mandatory constitutional and statutory obligation to take the oath of office has not completed the steps to acquire legal (de jure) status, and is legally considered a usurper. Because they completely lack legal authorization, the actions of a usurper are generally void and cannot be saved or validated by the protections of the de facto officer doctrine.

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The deadlock on February 18, 2026, occurred during a special meeting of the Solid Waste Authority (SWA) board, which was called to address the looming closure of the county landfill and review lease options for a new transfer station presented by private developer Jacob Meck. Because the board was operating with only four members due to a recent vacancy, the stage was set for a stalemate.

The Proposal (Option #4) During the meeting, board members expressed deep concern over the unpredictability of the Consumer Price Index (CPI) increases attached to Meck's initial lease proposals. In response, Meck presented a new, fixed-rate proposal known as "Option #4". This 15-year lease-to-own agreement required a fixed monthly payment of $16,759 and a final buyout of $1,103,495.24. The deal also included maintenance of the transfer station structure and crane by Meck's company, JacMal, LLC.

The First Vote and the Dissent Board member David McLaughlin made a motion to accept Option #4, which was seconded by Phillip Cobb.

• The Proponents: Chairman Dave Henderson and Vice-Chairman David McLaughlin strongly supported the plan, arguing that the lengthy permitting and construction timeline for a transfer station left the county with no other viable path to avoid a total cessation of waste services once the landfill reached capacity.
• The Opposition: The vote resulted in two members in favor, one against, and one abstention. Cobb explicitly voted "no," stating he could not support Option #4 because the $4 million total cost would lead to rate increases that would "hurt everyone". Ed Riley abstained because he felt he did not have enough information on the newly presented proposal. Riley also expressed serious concerns about the SWA's ability to actually collect the projected $310 annual Green Box fees through Magistrate Court, asking what would happen if the SWA couldn't pay the lease because residents failed to pay their bills on time.

The Ethics Commission Ruling Because the vote was split 2 in favor, 1 against, and 1 abstention, Office Administrator Mary Clendenen called John Roush at the West Virginia State Ethics Commission to verify if the motion had legally passed. Roush ruled that because only four members were present, the abstention effectively counted against the motion, meaning it lacked majority approval and officially failed as a 2-2 tie.

The Second Attempt Refusing to let the project die, McLaughlin made a second motion to accept Option #4 later in the exact same meeting, this time seconded by Chairman Henderson. However, this second attempt yielded the identical result: the motion failed again with Cobb voting against and Riley abstaining.

This administrative paralysis halted the transfer station project for a week until the February 25 regular meeting. At that subsequent meeting, Henderson and McLaughlin successfully pressured Cobb and Riley into a reluctant, unanimous approval by stressing the severe threat of a "stop-gap" period where the county would have absolutely nowhere to dump its trash.