CULLMAN — Editor’s Note: This is the second of a multi-part series of stories detailing the events of the April 27 meeting of the Cullman County Commission. The commission assembled four times throughout the day, with three recesses separating each. The assets of the former Cullman County water department, which had been under the control of the county commission, were transferred to a newly-formed water cooperative—the South Cumberland Cooperative District (SCCD)—during the meeting, and a three-member utilities board—the Governmental Utility Services Corporation of Cullman County (GUSC)—was established to make appointments to the five-member SCCD board. All of these changes, including board appointments, were made during the various sessions of the April 27 meeting. A lawsuit filed by Graves and several other county residents has challenged the legitimacy of the two entities, and seeks to overturn the measures that led to their creation.



This story reviews the second assembling of the commission, after the three-member GUSC board had been created during the initial session. For a complete account of that session, including quotes from the meeting minutes, see the May 20 edition of The Cullman Times, or log on to www.cullmantimes.com and do a search for “Minutes detail water battle.”



The Cullman County Commission had already met once on April 27, convening its regular meeting at 10 a.m. and recessing at 10:15. In terms of proceeding through the day’s agenda, the meeting hadn’t gotten very far. But already, the commission had resolved to take the first step in making one of the biggest changes to a revenue-generating county department seen in decades.

In the first fifteen minutes of the meeting, former commission chair Wiley Kitchens approached the commission during the public comment portion of the meeting—customarily the first agenda item to follow the formalities of opening the session—and submitted a petition and related prepared documents requesting that the county form a water board, the General Utility Services Corporation of Cullman County (GUSC).

Over the objections of chairman James Graves, associate commissioners Doug Williams and Wayne Willingham approved the request and established the corporation. At that point, the GUSC was just a paper entity, with no assets, no board and no encumbrances.

The submitted documents, which were substantial enough to give any first-time reviewer pause, did include a couple of items that would become more significant as the day wore on: the mention of the incorporated entity’s address (2020 Beech Avenue, the offices of the Cullman County water department) and a mention of what the purpose of the GUSC would ultimately be: to “...serve as a member of that certain public corporation to be incorporated pursuant to the provisions of Code of Alabama 1975, 11-99B-1 through 11-99B-18 and known as SOUTH CUMBERLAND COOPERATIVE DISTRICT [SCCD], the application and incorporation of which is intended to take place following the incorporation of the corporation to be incorporated hereby.”

After the GUSC was incorporated, the associate commissioners called for a 45-minute recess.

Running slightly late, the meeting resumed at 11:10 a.m. and picked up where it had left off—in the midst of the public comments portion.

Chairman Graves asked county attorney Dan Willingham, who had spent some time during the recess reviewing the section of the Code of Alabama pertaining to the GUSC (the “GUSC statute”), to report on what he had found.

“A utility services facility is basically a utilities board with two purposes—water and sewage,” Willingham began. “Once it is created, it is...like the city’s utility board or a park and rec board. It has a three-member board to serve six-year terms; the first term ending on January 1 of odd-numbered years...

“It has the ability to make bonds. It has statutory authority where it can operate, enter into agreements and contracts. There are three pages of provisions on powers that it has. It elects its officer through its board of directors. The three-member board of directors serves after their staggered terms end. They can be re-elected. They are appointed by the county commission. After their staggered terms end, they can be re-elected for six-year terms.

“It has standard board policies,” he continued. “You can amend the by-laws. They create their own by-laws on how to operate and that type of thing. It has power over whatever assets it has. It can enter into bonds and borrow money to purchase assets, and mortgage its assets, if it has assets. Right now it has nothing. It’s just sitting here.”

Graves surmised his opposition to the proceedings.

“So basically, it’s taking control of the Cullman County water department away from the commission and putting it under an independent board.”

“This right now doesn’t do anything,” Willingham clarified. “It’s existing, but it can only exist over whatever you all set it over.”

“But, this is determined by a majority of the commissioners,” Graves questioned.

“Correct,” Willingham replied.

“Then,” said Graves, “the board would function as the sole owner, we should say, of the Cullman County water department and would function independently from the commission.”

“Yes sir,” followed Willingham. “If it ultimately had those assets, that would be correct.”

Graves resumed his protesting of the board’s creation, which he had begun from the time Wiley Kitchens first approached the commission with the GUSC petition at the meeting’s 10 a.m. session:

“Since commissioner [Doug] Williams is fully aware of it and has been involved in it for the past year, I don’t see where the benefit is from it,” Graves said.

“Would you explain that to them?” he asked Williams. “Why are you doing this?”

Williams recounted his reasoning for endorsing the petition and the formation of a GUSC:

“The GUSC—the GUSC is the short term for the utility service corporation—is three folks from Cullman County,” he explained. “Water users requested to start this board to oversee things; look at things. The forming of the GUSC requires we choose three board members to go forward with looking at taking care of business. You look at the counties across this state, and according to the ACCA [Association of County Commissions of Alabama], which we are a member of, and look at the water systems in this county—every one of them are [sic] under a board except for ours. We have a Cullman Electric Co-op that takes care of the co-op from users of power that [sic] oversee the operation of that.

“A board of directors overseeing water, in my opinion, is extremely important; very valuable—and it takes the politics out of water,” he continued. “Water is a necessity of life and I don’t think it should be decided by one or two politicians: how we get our water, where we get our water and so forth.”

Williams then produced the resolution Kitchens and his fellow petitioners—Ron Stone and Dr. Dennis Haynes—had included with the petition documents Kitchens had submitted at the 10 a.m. session.

“To add to the conversation earlier,” said Williams, “I have a resolution here to elect a board of directors. The terms the attorney described: the first board member going till 1/1/11; the next board member going to 2013 and the next one to 2015. And I would like to make the motion to adopt this resolution and put forth the names of the three gentlemen who wanted to do this: Mr. Wiley Kitchens, Mr. Ron Stone and Dr. H.D. Haynes, and I put that in the form of a motion.”

In order for such a motion to have been made—and further action taken acknowledging the GUSC as a legal public entity to be tasked with further action and responsibility—the incorporation of the GUSC had to have already been filed with the Cullman County Probate Judge. That had been done during the recessed time between the 10:15 suspension of the first commission meeting session and the 11:10 a.m. start of the second session.

Associate commissioner Willingham seconded the motion.

Graves made the routine call for discussion, and began it with his own comments.

“I might ask: so then, three people, who put their signature to a petition, are going to determine the fate of 80,000 in Cullman County as far as water is concerned, establishing this board?” he questioned.

“No; not at this time,” Williams answered. “This just gives them the power to investigate and go further. This doesn’t give them takeover of anything. These three gentlemen are constituents, and water users in this county, and they brought this to us as a petition.”

“They have a concern over the issue,” added associate commissioner Willingham.

“It doesn’t put them over the water system at this point; no sir, it doesn’t,” Williams finished.

“Not at this point,” retorted Graves, “but eventually, that’s the intent. To me, it’s almost like Obama trying to shove something down people’s throats. I know there was a meeting out in Holly Pond recently, where the majority was not in favor of going with the Smith Lake proposal—and yet you are going to get it if you want it or not, is evidentially what we are looking at.”

Williams countered Graves’ assertions and tried to bring the motion back to the forefront of the discussion.

“No, sir,” he said. “This doesn’t say anything about that. And the meeting at Holly Pond—you weren’t there, so I don’t think you can be a fair judge of what was decided in that meeting. But I have a motion and a second on the floor.”

“Unless you are calling the paper a liar,” Graves replied, “they pretty much stated in the paper what went on out there.”

The well-attended Holly Pond meeting to which Graves referred took place on April 10. For full coverage of that event, log onto www.cullmantimes.com and do a search for “Going in Circles” in the search box near the top of the page.

“I have a motion and a second on the floor,” repeated Williams.

County attorney Willingham clarified with Williams the staggered dates on which the three GUSC board members’ terms are set to expire. An audience member then asked whether GUSC board members would receive a salary, and Williams stated that they would not. The audience member then accused Williams, according to the minutes, “of doing things backhanded.”

“I don’t feel like I’m doing anything backhanded,” Williams replied, “and I don’t feel like I’m having any problems.”

The audience member went further: “I’m not crazy about the three men that [sic] you are going to put on the head of this thing.”

“I might add,” Graves interjected, “I had no input on this whatsoever. I asked the newspaper if they had been notified of the proposal that was published here in the courthouse. And a little bit of credibility here, Dr. Haynes—nobody notified the newspaper. It was done rather quietly—posted on a board down here. The chairman was bypassed; never informed of anything. And now it’s a done deal. To me, it rather smells, but it has been approved.”

Graves then conceded discussing the matter further and called for a voice vote on the motion to appoint the three men as charter members of the GUSC board. Both associate commissioners voted to pass the motion. Graves abstained, saying “I oppose the motion, but I don’t have a vote at this timeframe.”

Still in the public comments portion of the meeting agenda, Graves recognized Donald M. Wilbanks, who approached the commission with another document.

“I have a formal request that this commission form a water cooperative to be known as the Cullman Water...” Wilbanks was unable to recall the proposed name of the co-op, but the documents he submitted named it as the South Cumberland Cooperative District, or SCCD.

County attorney Willingham examined the documents, and explained his impromptu findings.

“Chairman, this looks like a combination of the one you just formed and the Cullman County Commission placing it into a cooperative,” said Willingham. “I have not read this statute yet. It makes it a district. The district is Cullman County, parts of Morgan, parts of Walker, parts of Winston—which looks to be the territory wherein [lies] the county water system.

“It looks like it broadens...so that it covers the whole district,” he continued. “This one [cooperative governing board], according to this, has five board members instead of the three [on the GUSC board], which—in essence—it looks as though combines the two together and takes in the other parts of those counties—but I haven’t read this statute yet.”

“Are we in compliance, as far as taking a vote on it [is concerned]?” asked Graves.

“It looks almost like the same as we just looked at on how to establish one,” replied county attorney Willingham.

“Does it have to be a plurality of people requesting it?” Graves pursued.

County attorney Willingham briefly reviewed Section 11-99B-3 of the Code of Alabama, dealing with the procedure for filing an application for incorporation of a district. He then took a moment to satisfy Graves that the documents presented were in order to be accepted.

Graves, meanwhile, continued questioning Wilbanks, asking “if the newspaper had been notified or if this was posted giving notice of their intent,” according to the meeting minutes.

“As far as I know,” Wilbanks replied.

Williams contested Graves’ interpretation of the open meetings act, interjecting, “The statute says it has to be posted; it does not say anything about notification to a newspaper.”

“But the open meeting act requires it,” Graves countered.

“There haven’t been any closed meetings,” said Williams. “There haven’t been any meetings other than one-on-one with me personally with some of these gentlemen. There hasn’t been a quorum of anyone together in any other talks or discussions.”

“I’m talking about the open meeting act requires that—if the commission is going to consider it—it has to be posted and notification given to the newspaper about the schedule,” Graves said.

“Every meeting is posted, chairman,” said associate commissioner Willingham. “This is a regular commission meeting, sir.”

Section 11-3-8 of the Code of Alabama does require county commissions to give notice to news media who have on file a written request for notification. The revised open meetings act exempts county commissions from its notice guidelines, since they are covered by the Code.

Associate commissioners Williams and Willingham have maintained that they conducted no meetings at which a quorum was present outside of the regularly-scheduled and posted commission meetings, a stance Graves and other plaintiffs contest in the lawsuit.

Williams returned to the topic of Wilbanks’ request.

“To go further, I have a resolution that approves the application from these gentlemen, Mr. Kitchens, Mr. [Stan] Wood and Mr. Wilbanks, to form a cooperative,” he said. “From everything in here—the resolution to form a cooperative—and I make the motion to allow these men to form a cooperative.”

After associate commissioner Willingham seconded the motion, county attorney Willingham assessed whether the proceedings sufficiently adhered to the statute to move the vote forward.

“It appears to be in compliance with [Section] 11-99B-3 at first blush,” he said. “One question I have says that, in order to incorporate a district under this chapter, a number of natural persons, not less than three, shall first file an identical written application with the governing body of each county, municipality and public corporation proposed to be a member—and is the ‘member’ just to be Cullman County?”

“Yes, sir,” answered Williams.

Willingham informed Graves that the submitted request did appear to fulfill all statutory requirements, and Graves put the motion to a voice vote. The two associate commissioners voted in favor, and the motion passed.

“Whatever it is—” Graves commented, “—and I have no idea yet what we are getting into; what kind of animal we are trying to create here, or produce, or what it is supposed to do or not do...”

“I make a motion we recess for an hour and talk about it,” associate commissioner Willingham offered.

“You are going to have these people come back in an hour?” an incredulous Graves asked.

“I’m sorry,” replied associate commissioner Willingham.

“I need more than an hour to really study this, and want legal advice, also, on it and [on] the repercussions,” Graves said. “I have no idea what we are talking about here. An hour is not going to do me any good.”

Another audience member, George Benefield, asked to be recognized. Benefield requested that the matter be tabled for 30 days, “to give all the commission and the county attorney an opportunity to review the documents; for the public to be informed; and for the commission to have ‘proper discussion in order to properly address the matter in a reasonable fashion,’” the minutes state.

Another audience member, Clarence Benefield, supported tabling the motion for 30 days, “to allow the public to know what’s going on.”

Williams thanked both for the requests.

Kitchens spoke again: “Unless these two gentlemen [associate commissioners Williams and Willingham] withdraw the motion, and second, I don’t think you can not go forward with anything else.”

“That’s correct,” Williams agreed. “I would ask we go ahead and ask the clerk [county clerk Charlotte Slatton] to go ahead and assign a number to this, and we can go on down the list and get most of this out of the way for those that [sic] are here; then we will recess and get back to it.”

The motion to recess for an hour was withdrawn, and replaced by a motion to recess for five minutes.

Graves suggested completing the other items on the agenda—all of which were still pending until the end of the public comments portion of the meeting—so county employees in attendance could get back to work.

The commission instead recessed for five minutes, suspending the meeting at 11:35 a.m.

The South Cumberland Cooperative District had been formed. In the five-minute interim between the 11:35 recess and the meeting’s third session, the new cooperative would be registered, as the GUSC had been during the first recess, in the office of the probate judge.



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