By Benjamin Bullard
The Cullman Times
A hearing Friday will address a request for a restraining order against two county commissioners and the water entities they created last month, as well as one of the allegations made in a lawsuit filed against them.
The hearing, scheduled for 9 a.m. in the court of Circuit Judge Don Hardeman, will assess plaintiffs’ allegations that associate county commissioners Wayne Willingham and Doug Williams violated the revised Alabama Open Meeting Act in developing plans to form the South Cumberland Cooperative District (SCCD) and its oversight board, the Governmental Utility Services Corporation of Cullman County (GUSC).
The commission transferred the assets of the Cullman County water department to the SCCD on April 27, the day it was created. The move has drawn opposition from county residents as well as commission chairman James Graves, who is one of the seven plaintiffs who filed the civil lawsuit shortly after the water entities were formed.
Attorney Rusty Turner, who is representing county commission chairman James Graves pro bono, said the open-meeting segment of the hearing is interesting because of one potential consequence that could accompany a ruling that finds the commission to have been in violation.
If Hardeman determines the commission did violate the open meetings act, he could rule that the commissioners’ actions to create the GUSC and SCCD must be nullified, Turner said.
The hearing, which is open to the public, is expected to be held in the large third-floor courtroom of the Cullman County Courthouse.
Among the lawsuit’s many accusations is one concerning the potential harm the leasing of 30 county water employees to the SCCD might do to those employees’ retirement benefits. The question was among dozens that Senate Majority Leader Zeb Little fielded earlier in the week at a heavily-attended public forum to hear residents’ questions and concerns.
Little said Thursday he had consulted with the Retirement Systems of Alabama (RSA) in an effort to learn whether a lease agreement of county employees to another entity could jeopardize their retirements.
The short answer—though there are some qualifiers, said Little—is “yes.”
“It would be affected,” said Little of employees’ retirement participation. “The county can’t lease employees and have them stay on a state retirement, because the RSA is a system where the employees and their employer make matching contributions [to the employees’ retirement plan]. It comes down to whom they actually work for, and if they are leased by the district they don’t work for the county anymore. This was just poor planning, to put these employees at risk.”
Since 1969, Cullman County has participated in the Employees’ Retirement System of Alabama (ERS), which allows local governments to elect to participate in the program and fund retirement benefits in the same manner as provided for state employees.
A response Little received Thursday from ERS Director of Benefits William F. Kelley, Jr. indicated that the retirement system had only recently been made aware that the county was leasing employees to the SCCD.
Those employees “...have continued to be reported to the ERS as Cullman County employees pursuant to an employee lease agreement between the county and the district. The ERS, however, does not permit participating employers to cover employees of another entity through employee lease agreements,” Kelley states.
Kelley did inform Little that the SCCD may be eligible, after a period of roughly three months, to participate in the ERS program, but would have to provide the necessary enrollment information and meet program requirements.
“At this time, however, the district is not a participating employer, and its employees are not eligible for ERS participation...To specifically answer your question, yes, this group of employees’ retirement is affected because they are not eligible to continue participating in the ERS while working for a non-participating employer,” Kelley summarized.
Three months—a span that pending litigation could protract or otherwise affect—is too long for SCCD employees to wait for something that is not assured, said Little.
“They [county commissioners and water board members] should have checked on that before they did this,” he said. “They didn’t call the RSA until April 27th. Even if they do qualify, there’s a three-month window where misfortune can befall an employee or that person’s family, where death benefits would not be paid out; where they’re in limbo.”
According to case filings, nine people have been subpoenaed to appear at the hearing. All GUSC and SCCD board members (including Don Wilbanks, who resigned from the board last week) received notice to appear, as have associate commissioner Williams and Willingham. SCCD manager David Bussman and county employee Cindy Goodwin also received subpoenas.
Birmingham law firm Johnston Barton Proctor & Rose, LLP are representing the GUSC in the suit. The associate commissioners, as well as the SCCD, are being represented by Wilmer & Lee, PA of Athens, Ala.
* Benjamin Bullard can be reached by e-mail at email@example.com or by telephone at 734-2131 ext. 270.