Graves threatens legal action
Published 6:21 am Friday, October 8, 2010
Extraordinary.
By any measure — even the precedent for discord and stalemate set at its now-infamous meeting in April of this year — Thursday’s meeting of the Cullman County Commission steered county government into wholly uncharted legal territory from which it may take months — possibly longer — to emerge.
There was name-calling, backbiting, stonewalling and filibustering. There was confusion. There almost certainly will be a lawsuit.
At the end of the three-session meeting, the county had a budget set for the 2011 fiscal year. It had committed to pay nearly $200,000 in still-mounting legal fees associated with the creation of the county’s controversial water cooperative. It attached itself to a bond company to front the money for a Supreme Court-ordered $500,000 defendants’ surety bond in a civil suit over the cooperative’s legal legitimacy. It extended for five years the contract of the cooperative’s departmental manager. It authorized an agreement with the cooperative — the South Cumberland Cooperative District (SCCD) — committing the co-op to resell treated water to the county.
The only catch? Almost all of those decisions took place in a no-man’s land of governmental procedure; a dubious environment in which a meeting had been already adjourned — possibly improperly; no one seems to know — by commission chairman James Graves.
Graves had not placed the five items, along with some other mundane business, on the day’s agenda. Associate commissioners Doug Williams and Wayne Willingham maintained that those items had a right to be addressed. And in the fog of interpretation over how items of business can properly be set before the commission, things got personal.
Graves, who realized at the end of the meeting’s first session that he was facing the prospect of having Williams and Willingham treat all of the aforementioned items as a part of the day’s agenda, spent the next hour and a half essentially filibustering. As the meeting’s chairman, he is tasked with holding the floor and recognizing speakers, and he met with nearly unanimous approval from the 25 people in attendance as he took advantage of that prerogative to postpone the issue of addressing the outstanding agenda items.
Graves emphatically maintained the five measures in contention were never legally positioned to be a part of the day’s proceedings; Williams and Willingham disagreed.
“You decided to hide out and not discuss any of this with us before the meeting, and I think I’ve followed procedure by presenting this,” Williams told Graves during the meeting. “Especially two commissioners who signed off; who want to put something on the agenda, it’s a right. We’ve always put stuff on the agenda. We’re protecting the rights of future commissioners — that they have a right to put something on the agenda.”
After filibustering for most of the afternoon, Graves eventually ran out of things to say and engaged Williams and Willingham in a bitter public conversation over how each interpreted the placement of agenda business. That ended when Graves summarily adjourned the meeting over the opposition of Williams and Willingham, both of whom still felt they had unfinished business lying on the table. There had been no motion for adjournment; Graves simply declared the meeting to be finished.
“If they want to challenge the legality of all of this, I will see them in court,” said Graves of his decision. “They are trying to ramrod through the process all of the items they have invested so much in with this water board of theirs; with obligating the county to pay the lawyers who helped them set this thing up; with making our county responsible for a half-million dollar bond to fix their mistake. And all of it — everything that they’re trying to do — is illegal, and it will not stand.
“If they want to put their position up against the obvious will of the people; against the voters who voted them out of office and against the rules of procedure that invest me with the task of setting the meeting agenda and adhering to it in an orderly manner, then they can bring it on and we’ll settle it upstairs in the courtroom.”
With no motion, and with the chairman absent from the room, Williams and Willingham let the room ferment for a time — none of those in attendance hurried to leave — and then continued with the meeting on the willed presumption that Graves had simply relinquished the chairmanship to one of his peers.
The five items that were subsequently passed, all in a matter of five minutes, were voted on only by Williams and Willingham. Graves wasn’t there. The county clerk, in the interim, was reported to have taken on a sudden illness and was not present to document the rest of the meeting — if, in fact, it was a meeting. The task instead fell to county attorney Dan Willingham.
All four of the candidates vying to fill commissioners Williams’ and Willingham’s seats in November stayed throughout all the meeting’s sessions. To a man, they cited a deep concern for getting a grasp on what kind of FY 2011 county budget they’ll inherit. And to a man, each of them was sympathetic to what Graves was trying to accomplish by holding the floor for so long.
At least one, Place 2 candidate Willy Hendrix, beat a direct path to the bookstore to buy a copy of Robert’s Rules of Order to try to make sense of the procedural meltdown.
At one point midway through Grave’s monologue, former commission candidate Jerry Parker delivered a tacit gesture of support as well, excusing himself long enough to acquire a bottle of water — which he set before a winded Graves, who had been speaking for the past 45 minutes.
In many ways, the acrimonious pitch of Thursday’s meeting had an air of inevitability. Graves has been at bitter personal odds with commissioners Williams and Willingham for the past several months, having led the charge in filing a lawsuit against the two associate commissioners after they created the SCCD and its oversight utility board, the Governmental Utility Services Corporation of Cullman County (GUSC), on April 27. Those bodies were, on the same day, given control and ownership of the county water department and charged with administering its assets and employees.
Graves and the two associates have squabbled over water; over spending; over personnel and over the administration of state and federal grants ever since. With only a month to go before commissioners Williams and Willingham leave office, Thursday’s commission meeting — coupled with a regularly-scheduled one to be held Oct. 26 — are the last two opportunities for the pair to exercise some control over the county’s direction before they are replaced.
In a followup interview Thursday, both men said they believe they are doing the right thing.
“It’s our obligation,” said Wayne Willingham. “We’re elected officials, and we’re here until November, no matter how bad James doesn’t like it.”
“The chairman attempted to supersede procedure today; to make all of the decisions, and he just can’t do it,” followed Williams. “That’s why there’s three of us. Doing what we had to do today preserves that ability for the future commissioners.
“And, I’m proud that they do show up,” Williams said of the four commission candidates’ close attention in charting the day’s proceedings. “They are obviously interested, as they should be, in finding out how the commission procedure goes and in what the commission does. And whatever we have been accused of, I have no intention of going out and spending those next commissioners’ money.”
Graves was emphatic that the manner in which the associate commissioners handled the meeting’s end, as well as the legal status of the business they conducted in his absence, would see litigation.
“Oh, there’s no question. The wheels are already in motion,” he said later in the day. “This simply will not stand. We are going to fight this all the way.”
Graves had not decided late Thursday how he would countenance the five items passed by commissioners Williams and Willingham — particularly the 2011 budget they approved — reserving his judgment until today, when he plans to seek legal counsel to discern whether he should acknowledge the budget as a reliable financial template.
Similarly, he declined to speculate on what the immediate fallout could be for county departments anticipating the passage of a reliable budget, should he instruct them not to follow the budget version commissioners Williams and Willingham passed in his voluntary absence.
“I’m going to save my comments on all of that until I have spoken to some folks tomorrow,” he said Thursday evening. “We are going to look closely tomorrow at how we should approach everything, and we will just have to proceed from there. It’s not over.”
The five measures passed by associate county commissioners Williams and Willingham will obligate the county to:
‰Adhere to the version of the FY 2011 budget approved Thursday. That budget takes $600,000 out of the county’s reserve funds to cover a projected revenue gap for the coming year.
‰Pay the Birmingham law firm of Johnston Barton Proctor & Rose 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.
‰Retain the services of 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 suit, by the SCCD and its co-defendants, before the high court.
‰Purchase water under contract from the SCCD.
‰Retain water department manager David Bussman for five additional contract years.
‰Benjamin Bullard can be reached by e-mail at bbullard@cullmantimes.com or by telephone at 734-2131 ext. 270.