CULLMAN — The two controversial water entities that have been in administrative limbo since being temporarily stripped of their powers by a circuit judge have appealed the action to the Supreme Court of Alabama.

Filed Friday, the appeal seeks to overturn a May 28 preliminary injunction order issued by Circuit Judge Don Hardeman that, while in effect, forbids the board of the South Cumberland Cooperative District (SCCD), along with its oversight board, the Governmental Utility Services Corporation of Cullman County (GUSC), from taking any deliberative action—other than to elect to dissolve themselves.

The GUSC is comprised of Ron Stone, former county commission chairman Wiley Kitchens and H.D. Haynes. The five-member SCCD board consists of Stone, Kitchens, Haynes, Stan Wood and a seat left vacant by the resignation of Don Wilbanks, who relinquished his position on May 20.

The injunction came in the wake of testimony during which plaintiff’s attorneys attempted to demonstrate that the Cullman County Commission, at its April 27 regular meeting, violated the revised Alabama Open Meetings Act by passing measures alleged to have been planned secretly and ahead of time by a quorum of the three-member commission.

The order also temporarily returned custody of the county water system’s $30 million in assets to the county. Those assets had been transferred to the SCCD in late April after associate county commissioners Doug Williams and Wayne Willingham—also defendants in the suit for the role they played in creating the GUSC and SCCD—passed the two boards into existence at the tumultuous commission meeting that precipitated the lawsuit.

The two entities filed a separate motion Friday asking Hardeman to stop the civil suit until the state Supreme Court appeal has been resolved. Only the GUSC and the SCCD, and not Williams and Willingham, are parties to the appeal. James Graves, chairman of the three-member county commission, objected to the associate commissioners’ approval of the entities and was one of seven county residents who filed the lawsuit on May 10.

The appeal reveals a change in legal representation for the SCCD, which had originally retained Athens-based Wilmer & Lee, PA and was represented by the firm at the time the injunction was issued. The cooperative is now being represented on a pro bono basis by Johnston Barton Proctor & Rose, LLP of Birmingham. That firm, which also represents the GUSC, handled the drafting of incorporation documents laying the groundwork for the two entities to form.

Plaintiffs attorneys reacted quickly to that change Friday, following the defendants’ filing of the Supreme Court appeal with a filing of their own: a Circuit Court motion entreating the SCCD to show cause why it should not be held in contempt of Judge Hardeman’s injunction order.

Among other instructions, the order had enjoined the GUSC and SCCD from “...taking any further corporate action, including but not limited to entering into any contract, lease, or any other agreement with any other persons or entities, and further enjoined from expenditures of monies or water revenue proceeds.”

Plaintiff attorney Todd McLeroy of Cullman firm Knight, Griffith, McKenzie, Knight & McLeroy, LLP said Friday the SCCD had violated Hardeman’s order by switching its legal counsel after the injunction had been issued.

“The basis for our motion is that they’re under order not to take any corporate action,” McLeroy explained. “It’s apparent they’ve taken corporate action, because they’ve hired another law firm. If we find out that the members of these boards are colluding in a civil conspiracy in secret to maintain a board in violation of civil law, then we’re going to sue them personally.”

While most of the arguments listed in the appeal are recitations of those previously presented in Circuit Court, a handful stem from the injunction order or from events since the defendants’ original arguments were made.



These include:

• “Whether the circuit court erred in failing to require the plaintiffs to post a bond or other security, as required by Rule 65(c) of the Alabama Rules of Civil Procedure.”

Rule 65 deals with injunctions issued through the courts.

Rule 65(c), in particular, specifies that no “...preliminary injunction shall issue except upon the giving of security by the applicant [the plaintiffs], in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Alabama or of an officer or agency thereof...”

The plaintiffs in this case are the only parties to have made claims seeking any relief or alleging any damages—though that could change if the defendants decide to demonstrate that the two public entities will have suffered harm as a result of Hardeman’s ruling.

• “Whether the injunctive relief ordered by the circuit court, particularly the order enjoining the Cullman County Commission and its Commissioners from taking ‘any action concerning the GUSC or SCCD or any other similar entity,’ is overly broad and impermissibly interferes with the Cullman County Commission’s judgment and legislative function.”
• ”Whether the injunctive relief ordered by the circuit court exceeds the relief allowed under [section] §36-25A-9(f) of the Open Meetings Act, because the plaintiffs did not move to realign Cullman County Commissioner Graves as a party defendant in their amended complaint [Count Five of the suit was amended on May 19], and the circuit court did not so realign Commissioner Graves, until more than 21 days of the actions taken by the Commission at its meeting on April 27, 2010.”

[Section] §36-25A-9 of the Open Meetings Act deals with enforcement issues.

Specifically, §36-25A-9(f) stipulates that a court can “...invalidate the action or actions taken during a meeting held in violation of this chapter, provided that the complaint is filed within 21 days of the date when the action is made public...provided, further however, that any action taken at an open meeting conducted in a manner consistent with this chapter shall not be invalidated because of a violation of this chapter which occurred prior to such meeting.”

Graves was not realigned as a defendant on the open meetings count in the lawsuit until May 28—the day of the injunction—and more than 21 days after the April 27 commission meeting at which the entities were formed. The suit, which was filed May 7, preceded the realignment by exactly 21 days.

As of Friday evening, the Alabama Supreme Court had not assigned the appeal a case number and no timetable for the appeals process had been set.

McLeroy said the portions of the lawsuit not pertaining to the open meetings allegation, which is the only count under appeal, will still move forward in circuit court.

“This is an interlocutory [literally, “in between talks”] appeal,” said McLeroy. “It is an appeal before the case is finished. When they take an appeal before the case is finished, it doesn’t prevent the lawsuit from continuing. We can continue to take depositions and do discovery and prepare for a final hearing. Unless Judge Hardeman grants the defendants’ motion to stay this lawsuit while the appeal runs its course, we’ll be allowed to continue.”

GUSC board member H.D. Haynes, who also serves on the SCCD board, said Friday the GUSC board plans to go forward with a scheduled meeting Monday at 1 p.m., but will not deliberate or act on any business.

“The board will meet and go into executive session, to be advised as to what we should do, as our attorneys may give us advice,” said Haynes. “We’re not going to be conducting any business Monday, but it is necessary that we meet from time to time to seek the advice of counsel.”



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