CULLMAN — It all started—at least, so far as the public record is concerned—on April 27.

That was a long day for anybody who had to be there for the 10 a.m. meeting of the Cullman County Commission, because—unlike most commission meetings—this one would last nearly all day.

Much happened that day. Three men—Dr. Dennis Haynes, Ron Stone and Wiley Kitchens (who chaired the county commission before losing to current chair James Graves in a 2008 runoff election)—approached the commission during the meeting’s public comments period with a petition. The petition sought the formation of a utility board to oversee the Cullman County water department, which at the time was under county control.

The minutes from that meeting have been transcribed and are public record.

“Wiley Kitchens, former chairman of the county commission, stepped forward stating according to law he was presenting a petition concerning a government utilities board,” the minutes state. “He presented the petition for adoption stating he felt this would take the political pressure off the commission concerning water. He stated, ‘I want to give the petition to the commission to adopt and look at.’”

Chairman Graves accepted the petition, telling Kitchens, “I will give it to the [county] attorney first, let him review it and advise us on it and we will take any action he recommends afterward.”

Associate commissioner Doug Williams then spoke, acknowledging a resolution that had been submitted with the petition.

“This is a resolution approving the application permission to incorporate a public corporation under the provisions of Alabama Code. It has three signatures: Wiley Kitchens, Ron Stone, Dennis Haynes. It asks the commission—application in writing—for permission to apply for incorporation under the Alabama Code, the Government Utility Service Corporation of Cullman County with the proposed application with it.

“I am very familiar with this,” Williams continued. “I have read over all of it. They have included an authorizing resolution. ‘The resolution authorizes the incorporation, the commission has duly reviewed the contents of the application and grants permission and authority to such persons filing the application to organize the Governmental Utility Services Corporation of Cullman County [GUSC] and by filing it for record in the office of the probate judge of said county, the corporation in accordance with provision of Section 11-97-4 of the Code of Alabama. The resolution is made a part of the minutes of the Cullman County Commission at which final action upon said application has been taken by the clerk to authorize such record.’”

Section 11-97-4 of the Code is part of the “GUSC statute” — the portion of the Code, introduced in 1984, which provides for the creation and maintenance of a GUSC entity to help municipalities and counties throughout the state form incorporated utility boards. Its intent is to give local governments a means of managing public utilities that leverages the powers of private investment and operation.

“Mr. Chairman,” added Williams, “I am extremely familiar with this. I’ve worked on it for a long, long time—almost over a year—and I make the motion to allow these gentlemen to incorporate.” The motion was seconded by Associate commissioner Wayne Willingham.

Graves resisted.

“Before proceeding further,” he said, “I think we need legal counsel on it, to advise us on it. I know nothing of it. If you two know about it, and are familiar with it, and are ready to make a decision, I think you are not in compliance with the open meeting act that states this is to be discussed publicly before the county commission before we bring it here.”

Graves then gave his copy of the document to county attorney Dan Willingham. “I won’t take any action on it at this timeframe,” Graves added. “We will discuss it and vote on it at the next commission meeting, but we can’t do it at this commission meeting.”

Williams responded, “Myself and commissioner Willingham have not been in violation of any open meetings law, I can assure you of that. This is something I have been working on. We have a motion on the floor and a second.”

“How can you have a motion and a second if neither of you have [sic] worked on this and discussed it previously and agreed to support it?” Graves challenged.

Wayne Willingham responded, “On my own, I have read it.”

Graves then looked to county attorney Dan Willingham for an opinion on how to proceed, stating, “I have a problem with this coming before the commission at this timeframe. I think this should be tabled and brought up at the next commission meeting.”

According to the minutes, “Attorney Willingham stated he was somewhat familiar with the utility board, as he represents the Hanceville utilities, but this is somewhat different. He asked which utilities—all utilities or specific utilities—were affected, noting the Beech Avenue address.”

“Water, I believe,” offered associate commissioner Willingham.

Beech Avenue is the home of what was, at the time, the Cullman County Water Department. Although its mission and facilities remain the same, the department has been known as the South Cumberland Cooperative District since the April 27 meeting.

Graves again pressed to have the motion come up after further deliberation on the matter.

“I ask for this to be tabled till we can discuss this collectively amongst ourselves with your [county attorney Willingham’s] advice and input, and then we take it up for action after that,” he said.

Attorney Willingham agreed that the motion could be tabled, but noted two of the three commissioners would have to approve a separate motion to do so.

“Procedurally, chairman, a motion to table is appropriate at any time,” he said. “Make a motion to table; however, if you do not have a second [to your motion to table]....”

At this point, Ron Stone, one of the three petitioners, “attempted to be recognized from the audience,” state the minutes. Graves refused on the grounds that he was waiting for the county attorney to continue advising him.

Attorney Willingham continued: “Of course we don’t have a procedure; agendas, anything can come up before the commission if the commissioner or the chairman brings it before the commission,” he said.

“But you can’t bring it up for action when all three of us are not familiar with the situation,” Graves replied. “Evidentially, the associate commissioners are very familiar with what is being done here—which means they have considered it and talked about it and agreed beforehand on the matter, and are now trying to pass it in.

“This is troubling. The Alabama open meeting act says all actions are to be publicly stated and the news media is to be notified; we are to discuss this thing and we have not done that.”

Williams defended himself against Grave’s accusation, and attempted to continue with the motion to approve the petition request to form the GUSC.

“I have a motion on the floor and a second,” he said. “I have a motion on the floor and I have been accused of doing something that is wrong. I do not have a promise or a consideration from the other commissioner as to whether he would say ‘yea’ or ‘nay’ on this at all.”

“Why would you want to bring it up?” Graves asked.

Williams had an answer. “I think it is a very good idea and I’ve worked very hard on it for the last year trying to make sure we protect the people of Cullman County, and I believe this does that,” he said.

Graves stated rhetorically, “You have worked on it all by yourself and commissioner Willingham doesn’t know anything about it.”

“Commissioner Willingham knows about it,” answered Williams.

Attorney Willingham asked whether there were a signed copy of the petition, since the one in his possession lacked signatures. Williams replied that his copy did have the signatures of Stone, Kitchens and Haynes. “It is a request from the public to form a corporation and I don’t feel we can deny it, and I have a motion on the floor that requests that, and a second.”

After a moment, Attorney Willingham advised Graves, “ I think they can do that, chairman.”

In Count Five of a lawsuit filed by Graves and six county residents against the two associate commissioners—as well as the GUSC, the SCCD and their board members—the motion to approve the petition during the public comment portion of the commission meeting is challenged, with the suit alleging no measure passed at that time could have the force of law.

“The resolutions of the commission purporting to approve the formation of the GUSC and the transfer of the assets and employees were made during the public comments period of the meeting, without the suspension of the rules of procedure to consider them and were not on the commission’s agenda,” claims Count Five. See the May 18 edition of The Cullman Times, or visit www.cullmantimes.com and do a search for the “Charges Added to Water Lawsuit” story for more on the rules of procedure governing the public comments portion of commission meetings.

Graves, at a loss as to how to halt the motion, cast about for a way to stall it—or at least to distance himself from it—if a vote was inevitable.

“If I carry that through, commissioner Williams...I do not care to participate in it, commissioner Williams. All I can say is that, since last year, there has [sic] been multiple actions by the county commission that’s [sic] been done—as far as I’m concerned—in violation of the Alabama Open Meeting Act. And one, in particular, started in the application for the permit [to draw water for the county’s water supply] at Smith Lake.

“All this was done behind the scenes, it was discussed between the commissioners, agreement was made, letters were issued and approval was taken, which is in total violation of the Alabama Open Meeting Act. You can not meet in secret and take these actions, and am I correct, county attorney?”

Attorney Willingham responded that Graves’ statement was accurate, so far as it went.

“The open meeting act would preclude...of course, there’s the definition of what a ‘meeting’ is, but you cannot have a meeting to discuss and persuade one another to vote in a certain fashion on issues. You’re correct there,” he said.

Graves picked up where attorney Willingham left off.

“And take action,” Graves said. “Because I think the open meeting act also requires that the media be notified; public be notified of a hearing before it comes before the county commission for approval. There hasn’t been action one—since last year sometime—on a variety of issues, dealing with Smith Lake and other entities involving it, that has come before the county commission where action is taken.

“It is my intention to go to Montgomery either Wednesday or Thursday this week [April 28 and 29] and approach the Attorney General for an opinion on this, because I think the county commission is in total violation—I think the commissioners are in total violation—of the open meeting act, in the action they have repeatedly taken, over and over, including various correspondence they have issued under their names on county stationery and sent out to various entities, type thing. A meeting was never held, the news media was not notified and it never came before the county commission for consideration, type thing. First time I’ve heard of this!”

Through an attorney, Graves said last week he had not consulted with the attorney general on the matter, having opted instead to pursue the civil lawsuit and utilize its process of discovery to reveal further evidence.

Williams informed Graves a public notice had been given.

“It has been posted in the front of the courthouse in the hallway for several days,” he said. “According to the law, the statute’s been followed.”

“Newspaper notified?” Graves pressed.

“The statute has been followed,” Williams repeated.

“Why,” asked Graves, “didn’t we discuss it before the commission meeting in our normal  procedure back here, where we discuss matters—not to vote on, but discuss it so we are all familiar with it—before we ask for a vote on it?”

“Well,” answered Williams, “you said just a few seconds ago that is a violation of the law.”

“Yep,” added associate commissioner Willingham.

“Not to discuss matters, it is not,” Graves objected.

“That’s all we’ve done on any of these things, is discuss,” said Williams.

“You have issued letters and signed them and sent them out,” retorted Graves. “You applied to Alabama Power for a permit.”

Williams tried to bring the motion back to the forefront of the discussion.

“We have never done anything where we have deliberated, and that’s what the law says,” he said. “I have a motion and a second on the floor.”

According to the minutes, “[t]he chairman did not respond.”

“Do you want to relinquish the chair?” Williams asked Graves.

“For this motion, yes. You can take that,” Graves replied.

According to county commission rules of procedure, the chairman must announce the motion under consideration and conduct the voting procedure, although he can relinquish the chair to an associate commissioner on matters in which he feels he cannot participate.

“Thank you,” said Williams. “I have a motion. Any other discussion?”

“No,” said associate commissioner Willingham.

Williams called for a voice vote. Both he and Willingham then voted to approve the petition.

The minutes then state: “Commissioner Willingham immediately made a motion for a 45-minute recess to ‘discuss this and give Dan [county attorney Willingham] time to look at it.’ Williams seconded the motion.”

Williams offered Graves the chair again, and Graves accepted.

“At this time, yes,” said Graves. “Again, I have not been notified of your actions you’re trying to take here and do this on this matter. I think it is very futile.”

“Well, we are in recess now, where we can go,” associate commissioner Willingham responded.

“We met for an hour earlier [before the meeting’s start time]; why didn’t we discuss it then, commissioner Willingham?” Graves asked.

“We didn’t meet for an hour,” Willingham replied.

Graves called for a voice vote on the motion to recess the meeting, and the motion passed. He noted the recess was “to accommodate the two associate commissioners and their attorney.”

The meeting recessed at 10:15 a.m. There would be three more reconvenings of the meeting before the day was done.

Count Five of the lawsuit accuses Williams and Willingham of planning ahead of time to accept the petition, and of planning the creation of the GUSC, the SCCD and the appointing of its board members. The two are also accused of planning the transfer of the water department’s $30 million in assets to the SCCD—once the cooperative had been created—and of doing so in violation of the revised Open Meetings Act of Alabama of 2005.

“At no time during the [April 27] meeting,” Count Five alleges, “was the issue of transferring the assets of the Cullman County Water Department to another entity without consideration seriously debated. It is apparent from the voluminous documents filed and the presence of an attorney from the law firm of Johnston, Barton, Proctor & Rose, LLP, in Birmingham, Alabama, who had prepared the documents and from the detailed list of assets sought to be transferred from the Cullman County Water Department that the issue had been discussed by and between Defendants Williams and Willingham and other persons prior to the meeting.

“The open meetings act provides that ‘it is the policy of this state that the deliberative process of governmental bodies shall be open to the public during meetings [and] that all meetings of a governmental body shall be open to the public and no meetings of a governmental body may be held without providing notice...’ ... A ‘meeting,’ for purposes of the open meetings act, includes ‘a gathering, whether or not it was prearranged, of a quorum of a governmental body ... during which the quorum deliberates specific matters that, at the time of the exchange, the participating members expect to come before the body ... at a later date.’”

The commission holds its regular meeting today at 10 a.m.

For a continuing look at the meeting minutes from the second of the four April 27 commission meeting sessions, see Friday’s edition of The Cullman Times.



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