CULLMAN — A multiparty lawsuit filed May 7 against two associate county commissioners and others involved in the formation of a new oversight structure for the Cullman County water department has been updated to reflect the addition of two new allegations.

The amended suit, which already accused associate Cullman County commissioners Doug Williams and Wayne Willingham—along with members of the recently-formed Governmental Utility Service Corporation of Cullman County (GUSC) and the South Cumberland Cooperative District (SCCD)—of various improprieties and statutory breaches, was filed in response to the commission’s creation of the two entities at its April 27 regular meeting.

That meeting, which convened three times over the course of one day after brief intermittent recesses, saw strong objection from commission chairman James Graves over the two associate commissioners’ actions, with Graves declaring the proceedings to be in violation of the Alabama Open Meetings Act of 2005.

Although the lawsuit did not originally reflect that assertion, it does now. Count Five—which already contained the strongest claims against the two associate commissioners’ motives in the five-count filing—was amended Monday to include the new accusation, along with an allegation that Williams and Willingham did not act in accordance with the commission’s rules of procedure.

The rules of procedure, which the commission adopted in September 2005 in response to recent changes to the open meetings act, forbid the commission from making, considering or acting upon motions during the public comments portion of a meeting. The rules stipulate that “...The agenda for regularly-scheduled meetings shall identify the items to be considered and determine the order of business to be conducted at the meeting...There shall be no debate and no action by the County Commission during this [public comment] portion of the agenda.”

The amendment to Count Five states that a petition brought before the commission by three residents—former commission chair Wiley Kitchens, Ron Stone and Dr. Dennis Haynes—was not on the April 27 meeting agenda, and that the associate commissioners’ decision to act upon the petition during the public comment portion of the meeting was a violation of procedural rules.

Among Count Five’s new allegations is the observation that, “Clearly, the action of Defendant Williams by calling for a vote on the resolution while the Commission meeting was in public comment period was out of order, and any action taken should be found to be void ab initio [from the beginning].”

The motion in question, which passed, appointed the three petitioners to the three corresponding seats on the fledgling GUSC board. The three also sit on the new five-member SCCD board; Don Wilbanks and Stan Wood occupy that board’s other two seats.

According to the amended Count Five, because that original motion was allegedly done in violation of commission rules, everything that proceeded after the creation of the GUSC and the appointing of its board members also should be declared void.

The case has been assigned to Circuit Judge Don Hardeman. The suit is still in its early stages, and no one is speculating on whether it will see a trial. Graves, who is filing the suit along with six other county residents, has stated the plaintiffs would drop the matter if Williams and Willingham would rescind their April 27 actions and disband the boards they helped create.

According to the revised open meetings act, the defendants have seven days—or, until Monday, May 24—to file a response to the amended allegations.

“Normally, a defendant would have 30 days from the day they’re served to file some sort of response,” said plaintiff attorney Todd McLeroy of Knight, Griffith, McKenzie, Knight & McLeroy LLP. “Because this suit involves the open meetings act, that timeframe is expedited to seven days. Then, the court has to hold a preliminary hearing within the next ten days from the time the defendant makes a response.”

Williams said Tuesday that he did not yet know who will provide legal representation for himself, Willingham or the county commission in the suit. The commission is insured against lawsuits through its membership in the Association of County Commissions of Alabama, which retains a legal team and provides representation or makes referrals as circumstances require.

The amendment to Count Five includes a transcript of all three sessions of the April 27 commission meeting. Much of the amended suit’s reliance upon the meeting minutes stems from the conversations that took place at the meeting between Graves and the other commissioners, with the suit inferring from those talks that the two associate commissioners allegedly had to have collaborated in violation of the open meetings act in order to approve the petitioners’ request without any discussion.

The minutes also demonstrate, the suit claims, that Williams and Willingham used the two “[c]arefully orchestrated” recesses so that the GUSC and SCCD could be registered as legally recognized public entities in the Cullman County Probate Judge’s Office all within one day’s time. Those filings, in turn, allowed board seats on each entity to be legally filled and ownership of the assets of the Cullman County water department to be transferred to the SCCD on the same day it was created.

Prior to Monday’s amendment, Count Five already accused Williams and Willingham to have willfully perpetrated a conspiracy to defraud the county, asking that the court find the pair “liable for civil conspiracy.”

It describes their actions as indicative of “a scheme to deprive Cullman County of the Cullman County Water Department without just compensation and to transfer the Water Department to an entity that will answer to no one except a hand-picked board who will have the power to set rates, sell all or part of the Water Department, and to take private property with no oversight by any governmental agency or citizen.”

For a closer look at the April 27 meeting minutes, as well as an examination of how Count Five incorporates them into its amended complaint, see Thursday’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.