CULLMAN — The month-old lawsuit that has temporarily frozen the actions of Cullman County’s new water cooperative and oversight board enters its next phase today, with public depositions involving at least three witnesses scheduled to begin this morning.

County Commission chairman James Graves, along with six county residents, filed the suit after associate commissioners Doug Williams and Wayne Willingham, in a protracted commission meeting on April 27, formed a new water board—the Governmental Utility Services Corporation of Cullman County (GUSC)—and placed it over another entity created the same day, the South Cumberland Cooperative District (SCCD). At that meeting, the commission then transferred the entirety of the department’s $30 million in physical assets to the SCCD and arranged for the leasing of its 30 employees to the new cooperative.

The depositions mark the discovery phase in the suit’s life cycle—the period during which both sides elicit testimony and gather and assess evidence that can ultimately be used to build a case (or defense) that plays out in court, if the suit goes to trial.  

Today’s proceedings, which start at 9 a.m. in the third-floor courtroom of the Cullman County courthouse, will involve the taking of testimony from at least three of the defendants in the May 7 lawsuit. County water department manager David Bussman, along with associate county commissioners Doug Williams and Wayne Willingham, are slated to testify. Williams’ testimony will have to wait until at least mid-June, since he is currently visiting China on an economic development trip designed to foster economic ties between Chinese and Alabamian businesses.

While the case itself has progressed at its own pace, the countywide fallout from the April 27 creation of the GUSC and SCCD has been seismic:

‰Both associate commissioners who formed the quorum that created the two water entities lost their re-election bids in the June 1 primary vote.

‰The county’s application to Alabama Power for permission to draw water out of Smith Lake—a crucial step in a longer-range plan that might have led to the county’s eventual securing of its own water source—was suspended by the utility, with the ongoing litigation cited as the primary reason.

‰Senate Majority Leader Zeb Little saw widespread turnout when he held a meeting to hear public input on how to proceed in dealing with the water issue, as well as to gauge public opinion on the very efficacy of the three-commissioner form of county government that created the water entities. Since that meeting, he has joined with the rest of the local legislative delegation in scheduling a series of meetings to hear public input on whether the legislature ought to work with the county in moving to a five-commissioner form of government.

The suit, which is broken down into five counts, asserts that the two associate commissioners violated the revised Alabama Open Meeting Act by allegedly deliberating on the formation of the new entities prior to the April 27 meeting. It also claims the move threatened the county with irreparable financial harm, since the water department was sundered from its source of revenue without providing Cullman County with a means of generating revenue needed to secure more than $7 million in recently-issued water bonds. In addition, the suit accuses the associate commissioners of taking steps that ultimately violate the county’s long-term water purchase agreement with the City of Cullman.

A preliminary injunction issued by Circuit Judge Don Hardeman on May 28 has temporarily put the powers of the SCCD and GUSC on hold, and returned the ownership of the water department—including the receipt of department revenues—back in the hands of the county commission.

The injunction order serves as at least a temporary boon to plaintiffs, who were pleased with Judge Hardeman’s finding that “...it is apparent to the Court that Defendants Williams and Willingham, at least some of the applicants who became members of the GUSC and the [SCCD] District that day, David Bussman, Manager of Cullman County Water Department, and the Birmingham law firm of Johnston, Barton, Proctor & Rose, LLP, devoted quite some time and effort preparing for the April 27, 2010 meeting...”

Hardeman went on to note that “[...] It appears to the court by a preponderance of evidence that Defendants Williams and Willingham could not have considered, prepared and approved applications, the corporations, the deeds, bill of sale, and other documents transferring the assets and employees to the District without having discussed it between themselves prior to the meeting of April 27, 2010. The evidence presented, and the voluminous documents and complicated structure of the resulting entities, coupled with a lack of debate or explanation of these entities or their consequences in open meeting on April 27, 2010 compels the Court to conclude that the matter was deliberated by the two associate commissioners prior to the meeting.”

Hardeman also rejected the defendants’ claim that the county commission had, over time, already set a precedent for inadvertently or negligently violating its established rules of procedure. The defense had maintained that a pattern of innocent deviations from procedural rules demonstrated an existing procedural pattern from which the April 27 deviations did not substantially deviate, and that the commission, therefore, should not be held accountable for forming the GUSC and SCCD during the public comment portion of its April 27 meeting—a period which the rules exclude from the consideration of new business.

“...[T]he violation was not the result of mistake, inadvertence, or excusable neglect,” Hardeman wrote in response. “[...]The Defendants ostensibly offer in defense that course of dealing in the past exempts them from their own rules in this case. The Court is not persuaded by this argument. The fact that matters have been conducted improperly in the past does not excuse the Commission from abiding by its own rules in this instance. These rules of procedure carry the force of law by which the Commission must abide.”

Hardeman also countenanced the plaintiffs’ claim that placing water department revenues into the custody of the SCCD violates the county’s standing exclusive contract  to buy its water from the City of Cullman, and of its ability to see benefit from its resale of city water to various water systems countywide.

“The existing water purchase agreement between the City of Cullman, as seller, and Cullman County, as purchaser, was not assigned to the District, though the revenues from Cullman County’s resale of water were transferred to the District,” he wrote. “Thus, the District has no contract for the purchase of water, and the County has no revenue from the sale of water. The Plaintiffs have shown a risk of irreparable harm to themselves and to the other citizens and taxpayers of Cullman County.”

Once the suit proceeds through the 40-day discovery phase, it will come before Hardeman again at a final hearing on July 26. For continuing coverage of the suit and its effects on the water department, see upcoming editions of The Cullman Times and check out cullmantimes.com for past stories on this issue.



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