CULLMAN — In a preliminary injunction order Friday afternoon, Circuit Judge Don Hardeman effectively reset the Cullman County Water Department to the status it had previously held more than 30 years as an entity under direct county oversight—a status that, for the past month, had been dramatically changed after the Cullman County Commission transferred the department to the custody of two new entities it created amid a storm of controversy.

The injunction came as a result of plaintiffs requesting a temporary restraining order attached to a civil suit filed May 7, only ten days after the commission created the South Cumberland Cooperative District (SCCD) and its oversight board, the Governmental Utility Services Corporation of Cullman County (GUSC) at a protracted regular meeting which did not include any of the water-related measures in its agenda.

The court denied the restraining order request, but in its place, issued something stronger: an injunction that more fully satisifies the spirit of judicial intervention the plaintiffs had been seeking.

By ordering the injunction, the court temporarily blocked the GUSC and SCCD from exercising any form of direction or control over the water department, and returned the department to its status quo ante—literally, the way things were before—prior to the lengthy April 27 county commission meeting that, in a single day, saw the creation of the two bodies, as well as the transfer of all water department assets to the SCCD and the leasing of department employees to the cooperative.

Commission chairman James Graves had vehemently opposed the two associate commissioners’ passing of the various resolutions which formed the water entities, and had originally been listed among seven plaintiffs in the original suit filing. As a procedural matter, Graves has since been removed as a plaintiff and instead added as a defendant in the case. He remains opposed to the associate commissioners’ actions and supports the plaintiffs’ stance in the suit.

Although they had been supoenaed and were present in the courtroom, associate county commissioners Doug Williams and Wayne Willingham—whom the suit accuses, among other alleged missteps, of violating commission rules of procedure and of conspiring to form the two water entities in willful circumvention of open meetings laws—were not called to testify and did not speak at the hearing.

For the time being—and at least until a final hearing takes place in late July—the department is as it used to be. Employees are no longer being leased; department manager David Bussman must report directly to the county commission instead of the five-member SCCD board, and everything the department owned before April 27—both in real and personal property—is again owned by Cullman County.

In issuing the order, Hardeman noted the significance of testimony given by a number of witnesses who took the stand at a hearing Friday morning. Most notable were the accounts of Bussman and of commission chairman Graves, who until Friday had been listed as one of seven plaintiffs in the five-count suit.

The court realigned Graves as a named plaintiff Friday at the spoken request of plaintiffs’ attorneys, and listed him instead as a defendant in order to preserve the integrity of the plaintiffs’ assertion that the Cullman County Commission had violated the revised Alabama Open Meetings Act of 2005 when it allegedly acted against its own adopted rules of procedure in conducting the April 27 commission meeting.

Bussman’s testimony contributed to the court’s opinion that an injunction was justified, with Judge Hardeman’s order describing Bussman’s time under oath as “strained and insincere and further not credible.”

On the other hand, the court found Graves’ testimony—as well as that of plaintiff Chad Federer, a Holly Pond poultry farmer—“to be forthright and sincere.”

Cullman law firm Knight, Griffith, McKenzie, Knight & McLeroy, LLP, in representing all plaintiffs aside from Graves, turned up the heat on Bussman in a series of redirection questions that, at times, left him grasping to rephrase his comments.

Under rapid-fire questioning from plaintiffs’ attorney Steve Griffith, Bussman made an effort to clarify points elicited by his own attorneys when they first called him to the stand. Bussman had testified that the county commission had passed a resolution early in 2009 authorizing him to investigate alternate water supply avenues for the county, an endeavor meant to secure a secondary water source in the event of exceptional drought.

Griffith used that testimony as a starting point for a series of questions that left Bussman struggling to countenance his earlier testimony.

“You said you were tasked with getting a ‘board?’” Griffith asked.

“Yes,” said Bussman.

“I thought it was for ‘alternate water sources,’” Griffith retorted. “Why would a ‘board’ have a water source?” Later, Griffith would issue a followup question:

“Who told you to go get a ‘board?’”

“Commissioner Williams,” began Bussman, before clarifying: “Well, he didn’t tell me to ‘get a board;’ it was to check out the formations we could have to form a board.”

“Did he say ‘go get me a board?’” Griffith pursued. “What kind of ‘board’ was he talking about?”

Bussman responded that he had inferred that he was to look into structuring a board similar to that of the Cullman City Utilities Board.

All of this was a revelation, since attorneys had already established that the commission had not, by resolution, burdened Bussman with the task of structuring a utilities board—only, rather, with investigating alternate sources of water for the county.

Griffith then asked Bussman whether, prior to April 27, he and Williams together had ever visited with attorneys representing Birmingham law firm Johnston, Barton, Proctor & Rose, LLP, who drafted the documents used to form the GUSC and SCCD and provide for the transfer of the water department’s assets to the SCCD.

“Yes,” said Bussman.

Griffith then asked whether associate commissioner Willingham had ever been present with Williams and Bussman at any meeting with the Birmingham firm.

“Wayne Willingham may have been at one meeting—I don’t remember...” Bussman replied.

Griffith pounced on the significance of that testimony, as any admission that the two commissioners met with attorneys to deliberate on the formation of the GUSC and SCCD would indicate an explicit violation of Alabama Code pertaining to open meetings.

Bussman maintained that he could not remember whether the two associate commissioners were ever present together during any of the discussions with the Birmingham firm.

Griffith summarized the magnitude of the commission’s decision to convert the water department to new ownership and oversight, juxtaposing the significance of that decision against Bussman’s testimony that he had never consulted with chairman Graves on the matter because, as Bussman alleged, Graves did not make himself available to discuss the topic.

“Have you ever been for a period this long, where you’re ever discussing a subject this important,” said Griffith, without consulting with chairman Graves?

“No,” Bussman replied. “There were many opportunities to...but [Graves would not] make himself available.”

Griffith’s animated incredulity at this remark was manifested in a long, rhetorical “What?!”

Attorneys for Wilmer & Lee, P.A. of Athens, Ala., who are representing all defendants except for the GUSC, did not redirect Bussman following this exchange.

Plaintiff attorney Todd McLeroy tempered his happiness at the court’s decision by noting the unfortunate circumstances that necessitated the hearing in the first place.

“This is a battle that should not have been fought,” he said later in an interview with The Times. “But, it is a victory for all the people of Cullman County. We appreciate Judge Hardeman following the law in entering this order.”

The suit enters the 40-day discovery phase now, with both parties afforded an accelerated timeline in which to issue subpoenas and cultivate evidence. Plaintiffs and defendants are next set to appear before the court at a final hearing on July 26.

Among other findings, the order does, or “intends” to do, the following:

• Restores the Cullman County Water Department and its employees to the status quo ante [literally, “the way things were before”] prior to April 27.
• Returns all county water department employees leased to the SCCD to county supervision and oversight, and orders that employees “...shall be restored to all benefits and retirement rights possessed prior to April 27, 2010.”
• Denies the defendants’ May 25 motion to dismiss the case.
• Realigns Graves as a defendant “for purposes of the claims on violation of Open Meetings Act.” The Alabama revised Open Meetings Act of 2005 is the basis for a portion of the plaintiffs’ claims against Williams and Willingham in the suit.
• Restrains the SCCD and the GUSC “from taking any further corporate action until a July 26 final hearing.”
• Halts the SCCD and the GUSC from “collecting any revenues from the sale or provision of water” and requires the entities to return all revenues and assets collected or acquired since April 27 to Cullman County.
• Directs the county commission to refrain from taking any action concerning the GUSC or SCCD, “except, if it elects, to rescind its actions of April 27, 2010, which led to the creation of the GUSC and the SCCD, pending a full hearing on the merits and further orders of this Court.”

* For continuing coverage of the suit and its effects on the water department, see upcoming 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.