UNION — A motion to dismiss a lawsuit filed against the Monroe County Commission trying to stop an ambulance fee was denied Friday afternoon.

Greenbrier County Circuit Court Judge Robert Richardson said the motion to dismiss was based on the premise that the commission, as a political subdivision, is immune to lawsuits.

That’s the argument Beckley attorney J. Victor Flanagan, who is representing the county, was making, saying the county commission had the power and authority to pass an ordinance for a fee in order to provide ambulance service to county residents.

As a political subdivision, the county is immune to a lawsuit for adopting an ordinance that is in compliance with the law, he said, and that if those impacted want a remedy they can go to the polls and vote (if they are not happy with the ordinance).

But Richardson referred to a lawsuit against the City of Charleston and related rulings, saying that regardless of the merits of the case, citizens can seek injunctive relief through the court system.

“It is beyond any doubt the plaintiff has the right … in at least seeking an injunctive relief,” he said.

The commission enacted the fee, $100 a year for each residential property owner in the county, in August 2017 to raise funding needed to provide ambulance service to residents, a service the county is required by state Code to provide.

But the fee was met with opposition by some county residents, leading to the lawsuit, which was filed earlier this year by Pearisburg, Va. attorney Jason Ballard.

At Friday’s hearing, attorney Jonathan Matthews represented the firm.

The lawsuit is on behalf of Monroe County resident Gary Campbell, “individually, and … all others similarly situated,” and seeks “injunctive relief, declaratory judgment and monetary recovery for the damages…”

Richardson made it clear his decision to deny the dismissal was based on the immunity assertion and not the merits of the case.

Richardson also ruled that the plaintiffs can establish a civil action case involving all Monroe County residents who own property and pay the tax. However, that is pending his request that the attorneys representing Campbell provide background information on their experience and qualifications to handle class action suits.

Flanagan argued there was not enough “commonality” among those impacted by the fee because some pay it, some don’t; and some oppose the fee, but most support it. He also said only about 50 people had been involved in the lawsuit, a number Matthews said has risen to more than 200.

About 7,000 residents could potentially be impacted by the fee. Matthews said with 200 already on board, another 6,800 could be involved.

Richardson said whether property owners agree or disagree with the fee, all are subject to it, creating enough commonality for the class action suit.

However, he also asked Matthews if the plaintiff was ready to pay for notifying all of those impacted, a requirement for a class action suit that falls on the plaintiff.

After conferring with Campbell, Matthews said any costs would be taken care of.

Richardson said that, pending the information required concerning the attorneys’ class action qualifications, those letters do not have to be mailed out until after Dec. 2, the next hearing set to consider the defense’s summary judgment dismissal motion.

Two other key issues of the lawsuit that came up related to whether the county established a separate fund for the fees and if the county can legally appoint a board to oversee some aspects of the ambulance fee but not be an ambulance authority.

According to the lawsuit, county commission “improperly” handled the fees and did not “deposit its collected fees into a special ambulance fund as required by statute … Instead, the commission deposited the collected fees into its general fund.”

“Since August of 2017, the commission has operated and continues to operate its ordinance in direct contravention of W.Va. Code,” the lawsuit says.

The lawsuit also says the commission is required by the state to appoint a board of five to 15 people for “management and control of any authority, its operations, business and affairs…”

However, the lawsuit alleges, prior to enacting the ordinance “the commission did not create or otherwise assemble a board” to “operate the affairs of the ambulance service authority… Instead the commission itself directly managed, controlled, and operated all related affairs including, but not limited to, its collected fees pursuant to the enacted ordinance … the commission continues to directly manage, control, and operate numerous affairs directly related to the ordinance … The foregoing is in direct contravention of the Emergency Ambulance Service Act of 1975 …”

The lawsuit said residential property owners in Monroe County “have been and continue to be wrongfully subjected to the imposition of the fee as presently imposed by the commission.”

Flanagan said the commission did establish a separate account for ambulance fees and “the commission is not required to establish an Ambulance Service Authority or board.”

When Richardson asked Matthews if he had enough “discovery” on the separate account issue to move forward, Matthews said some documents were still missing but also said the bank statements and documents obtained so far indicate the county does appear to have established a separate account for the fees.

Matthews said he did not know the specific records that have not yet been received or examined.

Flanagan said all requests for information and documents from the plaintiff have been fulfilled and he knows of none that have not yet been addressed.

“They have all the bank records,” he said.

“If I understand it, that is a central factual issue upon which the plaintiff’s case relies,” Richardson told Matthews. “If funds have been deposited into a separate account then an entire portion of your case would fail just based on the facts.”

Richardson asked if any more documents are examined and the plaintiff sees that the fees are in a separate account, what would then be the argument that the county’s enactment of the fee is unlawful.

Matthews said that would go to the argument based on whether there is an ambulance authority.

But Richardson said it is clear there is no ambulance authority, that the county commission elected not to create an ambulance authority.

He asked if the plaintiff is saying there must, by law, be one.

“I don’t think so,” Matthews said. “But the county commission has blurred the lines” by creating a quality assurance board which “looks and acts like an ambulance authority.”

Richardson said the board was created to evaluate the services provided with the fee, something akin to what an auditor may do, and does not perform functions, like contracting for services, an ambulance authority would do but the county is doing instead.

“What did they (commissioners) do wrong?” he asked.

“We believe the quality assurance board is ultimately an ambulance authority,” Matthews said.

Richardson asked if there is any evidence to show it is an ambulance authority.

“That is what we are discovering right now,” Matthews said. “We are looking for specifics.”

“I am having a heck of time understanding what you are saying,” Richardson told Matthews. “They did not want to create an ambulance authority and demonstrated that by not creating an authority.”

“But we believe the creation of this quality assurance board is, in effect, an ambulance authority,” Matthews said. “No matter what they call themselves, they have created an ambulance authority… “

Richardson said he would like to “resolve this matter as promptly as possible” for residents of the county and it is of no benefit for anyone to “drag it out.”

The summary judgment to dismiss motion filed by the defense will be heard on Dec. 2, he said.

After the hearing, Flanagan said the summary judgment hearing will include all documents and details related to why the case should be dismissed all together.

Matthews said the main objective of denying the dismissal based on immunity was accomplished and went well, and now they will prepare for the Dec. 2 hearing.

“All of that will be laid out to the court on that issue (ambulance authority),” he said.

Campbell said the judge was “in our favor today.”

“I think we are going to work this out for all of our citizens,” he said. “We need to keep our EMTs … but we want to make it fair for everyone.”

The ambulance service issue surfaced in early 2017 when the Union Rescue Squad was going out of business over financial problems and sold out to Greenbrier Ambulance Service.

In an article earlier this year, Monroe County Commission President Bill Miller said that “Greenbrier took all their debt and their equipment. We had no power over that.”

Greenbrier (based in Lewisburg) then came to Monroe County, he said, and told commissioners they would continue to provide service and “make it work,” but then came back three months later and said “no money can be made.”

Not enough calls came in to pay for the service.

“Then we had to start looking to serve the population of the county on the Union end,” Miller said, referring to the fact that the county is obligated by law to provide an ambulance service if one is not available.

Peterstown Fire and Rescue covers the eastern/southern portion of the county, but that also presented a problem.

“We met with Peterstown and they said they will be in the same shape as Union was in three to four years,” he said, referring to the difficulty in receiving enough calls to pay for the service. “It is easier to put it on the whole county (rather than on the Union side only). That is what we agreed to on this.”

Ambulance services were asked to estimate the needed annual supplements to be able to run in the county, providing a crew ready to go 16 hours a day.

“We worked off those figures and came up with $100,” he said. “If we collect all of it maybe we could lower it (the $100).”

Public meetings had been held before the ordinance was passed, he added.

The plan was to use the money from the fee to supplement Greenbrier and Peterstown with $260,000 a year each, with $40,000 going to Alderson for backup when needed and $5,000 to Paint Bank, another reserve squad when needed.

The county has experienced problems collecting the fees and earlier this year hired the firm Feuchtenberger & Barringer Legal Corp. of Princeton to collect unpaid fees.

— Contact Charles Boothe at cboothe@bdtonline.com

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