CULLMAN — Depositions continued last week in a protracted legal battle pitting two associate county commissioners, along with the two water boards they helped create, against several water customers who filed a lawsuit to overturn the commissioners' actions.

The depositions, which are part of the six week-long discovery phase of the suit, have seen plaintiffs' attorneys call several witnesses—including associate county commissioners Doug Williams and Wayne Willingham, who gave statements June 24 to deliver testimony in advance of a final hearing scheduled later this month in the court of Circuit Judge Don Hardeman.

Williams and Willingham, along with board members representing the Governmental Utility Services Corporation of Cullman County (GUSC) and the South Cumberland Cooperative District (SCCD), are defendants in the case. The suit alleges that the commissioners violated the Alabama Open Meetings Act and defrauded their constituents on and before April 27, the day the pair overrode commission chairman James Graves in voting the GUSC and SCCD into existence.

All defendants have now joined together in appealing a May 28 injunction order issued by Hardeman that has temporarily halted the deliberative and administrative functions of the two entities, and—for the time being—returned all water department assets with which they had been entrusted to county ownership and oversight. The appeal is pending in the Supreme Court of Alabama.

Plaintiff attorneys Todd McLeroy and Steve Griffith of Cullman law firm Knight, Griffith, McKenzie, Knight & McLeroy, LLP, also deposed county water department manager David Bussman, as well as SCCD board members Dennis Haynes, Ron Stone, Stan Wood and Wiley Kitchens. The latest round of testimony—involving Kitchens, Wood and Stone—ended Thursday, with testimony scheduled to continue this week.

Lawyers for Birmingham law firm Johnston, Barton, Proctor & Rose scrambled at times to keep themselves from becoming part of the testimony Thursday, citing attorney-client privilege as the basis for frequent and oft-repeated objections to questions concerning the various permutations the firm's ongoing relationship with Williams, Willingham and the two water boards has taken.

The firm, which has been involved since at least early 2010 in the development of Williams’ and Bussman’s plan to form the water boards, drafted the legal paperwork that was presented to the commission on April 27, when the petitioners—all of whom became board members—approached the county commission with the documents and requested permission to incorporate.

Since that time, Johnston & Barton, et. al represented first the GUSC and later—after the groups decided to appeal to the supreme court—both the county commission and the SCCD. The latter two groups had previously been represented by Athens-based Wilmer & Lee, PA. According to the defendants, all legal work done by Johnston & Barton, et. al has been done on a pro bono basis, except for the work done prior to April 27 in the research and drafting of the GUSC and SCCD incorporation documents.

McLeroy—whose firm is also working pro bono—said Thursday that the defendants’ testimony, coupled with the Birmingham firm’s reliance on the attorney-client privilege objection to any questions involving the payment of more than $135,000 to the firm, simply does not bear out the truth of such a claim.

“There is one firm who is working pro bono in this case,” McLeroy said after testimony wrapped Thursday. “And it’s not Johnston & Barton.”

Bussman testified that a number of charges adding up to $137,000 were paid to the firm through water department funds, including at least $27,000 authorized by the SCCD at its May regular meeting. When asked by McLeroy whether the total bill was for work done to prepare incorporation documents for the SCCD and GUSC, as well as for legal fees in the ongoing lawsuit, Bussman was instructed by Johnston & Barton attorney Richard Raleigh not to answer.

“Do you know how much of their bill was for—of that $137,000—was for the water contract [between Cullman County and the City of Cullman to exclusively purchase water from the city]?” McLeroy pressed.

“...They billed us about $90,000 for the GUSC and the co-op and the balance was for the other,” Bussman responded.

“...Was there some work done by either of these two law firms [Johnston & Barton, et. al and Fuller & Willingham of Cullman] between the creation of the cooperative on April the 27th and the [SCCD] meeting on May 11th [sic—the referenced meeting was held May 10], or was it for work done prior to the [county commission] meeting of April 27th?”

Raleigh again objected, invoking attorney-client privilege.

Finally, McLeroy asked: “How much of that [$137,000] did the county pay?”

“I want to say maybe $110,000,” Bussman replied.

When pressed for a timeline of when the money was spent, Bussman was silenced by further objections from Raleigh.

That rankled Steve Griffith, who countered Raleigh with “We want to know what—what—what was this for? He’s your witness. We want to know what this money was spent for. It looks like it was spent for work done before there was a co-op. And if that’s true, let us know. If it’s not true, let us know. Those are simple questions.”

“They’re simple questions that are the subject of attorney-client privilege,” Raleigh repeated.

In separate testimony, Williams said he, Kitchens and Bussman had been considering the establishing of a county or regional water board of some kind since 2005, when Kitchens was chairman of the county commission.

In late 2009 or early 2010—the testimony given by the defendants varies on the exact date—Bussman, acting on Williams’ instruction, collaborated with Chris Cousins of Municipal Consultants to research a number of pathways whereby a board could be created. Cousins, who works on a contractual basis with the county water department, was mistakenly identified in a previous article as an employee with another engineering firm, Goodwyn Mills & Cawood. Cousins is not affiliated with that firm.

Williams also testified that Bussman, after collecting information and contacting Johnston & Barton, et. al, arranged a series of as many as four meetings with lawyers from that firm. Williams and associate commissioner Willingham were both present at some of the meetings, according to Williams’ testimony.

Despite the presence of two commissioners at such gatherings, Williams maintained that a quorum of the three-member county commission was not present, because no decisive action was taken during the informal meetings.

“The first decision I made about it as far as going the route that we went was a day or two before that April 27th meeting,” Williams said when questioned by McLeroy. He later described the arrangement whereby the men who petitioned the commission on that day—all of whom would ultimately go on to serve on the SCCD board—would extend the decision-making powers of the new water cooperative to a member-based structure, such as that used by the Cullman Electric Cooperative—as a “gentlemen’s agreement.”

“...I asked them...that at some point could they see switching this over to a co-op where it was elected members,” Williams testified. “They all agreed that they would do that.”

The SCCD has held only one meeting before being sidelined by the injunction, a tense and heavily-attended May 10 affair at which no discussion of holding member-based elections or organizing its customer base into a membership constituency was held.

The board is constrained from further such deliberation until the lawsuit and appeals have been resolved.

For ongoing coverage of witness depositions in the lawsuit, see future editions of The Cullman Times.



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