A decision that will determine the fate of a temporary restraining order against the Cullman County Commission is expected Monday, following a full day of testimony in a scheduled hearing late last week on whether to extend the 10-day blockage of some commission actions ordered by a circuit judge Oct. 8.

The restraining order, which blocked five items passed late in a meeting which the chairman had declared adjourned and continued with only the two associate commissioners, was issued the day it was requested as part of a four-count lawsuit filed against the commission by the four candidates who are vying to fill the two open associate commissioners’ seats.

The impetus for the immediate filing of the suit — which came one day after the meeting at which the five items passed — stemmed primarily from the candidates’ concerns that one of those items — the passage of a county budget for the 2011 fiscal year — would give the two outgoing associate commissioners carte blanche to spend against next year’s county revenues, leaving the new commissioners without full funding after they take office at their first commission meeting Nov. 10.

For now, the budget — along with four other controversial measures passed at the end of the Oct. 7 commission meeting — are on hold. That could change if Circuit Judge Don Hardeman rules that the restraining order he issued ahead of the hearing has run its course.

Nearly all of the players in the current legal drama — which stems, ultimately, from the April 27 creation of two water utility boards and the transferring of the county’s $30 million water department to their oversight — were in the courtroom Thursday. Current associate commissioner candidates Willy Hendrix, Darrell Smith, Keith Smith and Stanley Yarbrough all sat alongside each other behind the plaintiffs’ table as Williams and Willingham flanked the defendants’ table at the room’s east end.

Commission chairman James Graves, who along with associate commissioners Doug Williams and Wayne Willingham is a defendant in the case, stayed in the audience, except for the duration of his testimony as a plaintiffs’ witness. Water department manager David Bussman and county attorney Dan Willingham, both of whom saw heavy mention Thursday for their roles in the unfolding of the water controversy, were not present.

Attorneys for the plaintiffs in the lawsuit drew testimony from three witnesses Thursday in a day-long session that saw the two associate commissioners, Willingham and Williams, take the stand. The plaintiffs also heard testimony from commission chairman Graves. The defense called one witness, Place 1 Democratic commission candidate Keith Smith.

Under questioning, associate commissioner Willingham said he could not recall what specific services were represented by an outstanding bill of nearly $200,000 for legal fees owed to the same Birmingham law firm that has been involved in the water issue since its April beginnings. The county had never authorized a contractual relationship with the firm — Johnston Barton Proctor & Rose — via formal resolution in a commission meeting.

Plaintiffs argue that means the county — which commissioners Williams and Willingham obligated Oct. 7 for current and future legal fees for the firm’s representation in a separate water-related lawsuit — has never been responsible for debts incurred against the firm, and should not be now. Instead, they claim, the county residents who petitioned the county commission for the formation of the water utility boards in April — with the assistance of the Birmingham firm in drafting the incorporation documents — should owe the money.

“If these men [on the utility boards] formed the SCCD and the GUSC on their own,” asked plaintiffs’ attorney Todd McLeroy, “why are they wanting the people to pay the bill?”

Williams responded that “these men” — members of the South Cumberland Cooperative District (SCCD) and the Governmental Utility Services Corporation of Cullman County (GUSC) — were under the direction of water department manager Bussman, whom Williams had instructed late last year to begin researching various ways in which the county could solidify its future as a provider of reliable drinking water in years to come. Because Bussman was, at the time, a count department manager, some of the discretionary spending required of such an official was given a wide berth.

Hardeman pressed Williams to clarify that point, relating a department head’s authorizing of a $200,000 legal bill against county money to the restraint expected of other departments.

“It’s not your contention, is it,” asked Hardeman, “that department heads are allowed to go out and obligate the county for $200,000, is it?”

Williams agreed that was not common practice and would routinely subject such a department head to reprimand by the commission.

Part of what’s at issue in the current suit is whether the items commissioners Williams and Willingham passed after Graves had declared the Oct. 7 meeting adjourned were added to the meeting’s agenda in a manner that complies with the commission’s own rules of procedure, adopted in 2005. If not, those items could be declared invalid by the court.

Defense attorney Mark Maclin of Athens, Ala. firm Wilmer & Lee asked Williams to explain the way in which the agenda for the Oct. 7 meeting had been set.

Williams testified that it is standard commission practice to precede each regular meeting with an informal gathering between the three commissioners, the county attorney and the county clerk in order to set the day’s agenda. But, he said, his efforts to include Graves in that process on Oct. 7 were not successful after Graves allegedly locked himself in his office and declined to accept any agenda input from neither Williams nor commissioner Willingham until just before the meeting’s 10 a.m. start time.

“I told him [Graves] the agenda was incomplete and it didn’t have my items on it,” Williams said. “He failed to recognize that — he failed to recognize me.”

After a lengthy stalling period toward the meeting’s end — a measure most in attendance believed to be Graves’ attempt at preventing the two associates from adding the excluded business to the agenda — Graves stepped away from the podium after declaring the proceedings adjourned.

“I turned to the county attorney [Dan Willingham] and said, ‘I don’t believe we’re adjourned,’” Williams testified. “And he said, ‘That’s right — you’re not adjourned.’”

From associate commissioners Williams’ and Willingham’s point of view, everything they passed after that was done legally and in accordance with the commission’s own rules.

The five measures currently blocked by the restraining order include:

•  A version of the FY 2011 budget version that takes $600,000 out of the county’s reserve funds to cover a projected revenue gap for the coming year.
•  Payment to the Birmingham law firm of Johnston Barton Proctor & Rose of an unspecified amount, but one believed currently to stand at $172,000, for legal work in setting up the SCCD and the GUSC — and to commit the county to cover future expenses incurred by the firm’s retention on the two boards’ appeals to the state Supreme Court in the ongoing lawsuit against them.
•  Paying Liberty Mutual Insurance Co. for the posting of a Supreme Court-ordered supersedeas bond of $500,000 as surety against a potentially unsuccessful appeal of the May 8 lawsuit, by the SCCD and its co-defendants, before the high court.
•  Authorization of the SCCD, under contract, to purchase water from Cullman County. The county acquires its resold water from the City of Cullman.
•  Awarding a five-year contract extension to water department/SCCD manager David Bussman. Plaintiffs claim that, if the SCCD is allowed to continue to exist, the need for the county to award him a contract extension, paid out of county funds, is obviated.

The commission has scheduled a special public meeting for Oct. 19 — one day after the court rules on the current restraining order — to discuss and essentially re-ratify all five of the measures under dispute. Graves testified Thursday that he does not support the meeting. An additional item — a discussion of the still-unsigned 2009 water purchase agreement that could ultimately take effect between the City of Cullman and the county — has also been placed on that meeting’s agenda.

* Benjamin Bullard can be reached by e-mail at bbullard@cullmantimes.com or by telephone at 734-2131 ext. 270.