June 8, 2011 Morristown Extends Red Light Camera Contract

The red light camera contract with RedFlex was extended yesterday in a 5-2 vote. Councilmembers Brooks and Bivens voted NO.  Bob Garrett, Claude Jinks, Paul LeBel, Kay Senter, and Mayor Danny Thomas voted YES.

The contract was approved prior to the public comment portion of the meeting and without any prior notice in the paper of the upcoming vote. 

Councilmembers themselves only became aware of the proposed contract extension late last week when they received the agenda and information packets.

The contract apparently gives the City more of the money that is collected, moves the WalMart light to 25E at Cherokee Park, and allows the City to add more lights in the future. 

The City voted on the renewal yesterday with the stated purpose of avoiding the implementation of the new state law (July 1, 2011) which, among other things, requires traffic studies prior to putting up new lights. 

In a cash-strapped city that has been dubbed guilty of self-inflicted financial "malfeasance" by a federal judge, the vote was not surprising.

June 6, 2011 Administrator Tony Cox Surprises Council and Puts Red Light Camera Contract on Tomorrow's Agenda

The City of Morristown's current red light camera contract with RedFlex ends in August 2011.

Without holding a work session on the issue or giving the council at least 10 days notice, City Administrator Tony Cox has put changes and extension of the RedFlex contract on the Council's agenda for a vote tomorrow. 

[If the City is looking for more money, changes allowing installation of more lights and giving more of the red light revenue to Morristown and less to RedFlex will certainly do that]

The issue here is more of adequate time to review contracts and major contract changes. This is not an emergency situation. Will councilmembers rubberstamp this contract or decide that it's good business  practice and common sense to have at least 10 days to review and ask questions about a major contract revision and extension prior to voting on it---not to mention allowing the public to have some input?

Cox is apparently trying to get the RedFlex contract changed before red light legislation passed by the State Legislature takes effect on July 1, 2011.  Even if Tony is trying to "beat" the changes in state law, he could have put this item on work session tomorrow and then for a vote on June 21 instead of pushing for a vote tomorrow!

Tony gave the council only about four days notice (two of those days being Saturday and Sunday). If Tony gave notice to the press, I didn't see anything in Friday or Sunday's paper. As far as letting the public know about this agenda item, the city council's agenda (as of last night) was not posted on the city's website. Maybe it will be posted after this blog entry goes up. Maybe it's not in the same place as it used to be when it was on the front page of the website right above the "calendar of events." 

UPDATE: I have been told that the agenda is on the city's website, not where it used to be, and that you have to know where it is and how to get to it.  Not sure why the change was made, but I am sure that the change has made it harder for people who used to see the "agenda" link right on the front page as they now try to figure out where the agenda is.

Contrast this hurried/little or no discussion situation with the hours that Tony has spent in work sessions with council on signs, mattresses on the sides of the road, and a bust of Mama Bird Johnson to be erected at the new airport terminal.

Even those councilmembers who support the red light/speeding cameras should be willing to postpone this vote.

This is the time for the new Mayor and old and new councilmembers to step up and insist on having an absolute minimum of ten days in which to review a contract or extension of an existing contract--especially when it involves a contract that has raised considerable controversy in Morristown, across the state, and across the nation.

Click here to see my previous post on a recent Florida ruling on red light cameras and the different treatment of violators ticketed by cameras (small fine and no points on the driving license) and violators ticketed by the police (larger fine and points on the driving license).

June 4, 2011 Red Light Cameras Unconstitutional?

Many questions have been raised about the constitutionality of red light cameras.

Fort Lauderdale (Florida) Judge Fred Berman has cited constitutional issues in his recent ruling that police can no longer issue red light tickets as long as cameras are operating.

Berman's ruling maintains that it is not fair that red light runners caught by police face a stiff fine and points on their license, compared to those nabbed by the cameras, who face a smaller fine and no points.

"This violates the Equal Protection Clause of the United States Constitution, as well as the Florida Constitution," the judge wrote.

Click here for the video news report.

According to a Fort Lauderdale attorney with the "Ticket Clinic," red light tickets issued by police will be challenged in Fort Lauderdale and perhaps beyond with citation to Judge Berman's opinion.

The Florida attorney general will become involved: "In our view, Judge Berman did not apply the appropriate standard of review. From here, we will be weighing all of our options to challenge his ruling, including an appeal to the Circuit Court."

Click here for the Florida story and links to previous reports by the Florida news channel.

Thanks to Michael Silence who reports on the story here with comments from Knoxville PD department spokesman Darrell DeBusk and to Taxing Tennessee which has the story and a link to Silence's post.

June 3, 2011 Councilman Chris Bivens Works on City Budget and Saves the City Taxpayers $120,000

In a previous post, I mentioned the LeBel-Senter discussion on May 31 about council's $15,000 travel budget for 2012. LeBel wanted to see that item eliminated. Senter wanted to keep it. 

[Kay Senter has been a prolific traveler in the past on the city taxpayer's dime and may want to dip into that line item beginning in July 2011 due to her upcoming coronation as president of TML (Tennessee Municipal League)]

After the LeBel-Senter traveltalk, newly-elected Councilman Chris Bivens showed that he has jumped into his new job with hands-on budget research. For 2012, City Administrator Tony Cox had included purchase of a new articulating loader for the City--a $140,000 piece of equipment.

Bivens saved the City taxpayers $120,000 by going and looking at the current loader and talking to one or more of the city's mechanics. Bivens found out that the current loader is in excellent shape and would be "just like new" with a new engine at $10,000 or so.

Council discussed the matter and decided that they could get the new engine and even throw in a new $10,000 transmission and for $20,000---instead of $140,000--the City would have an excellent piece of equipment!

Bivens thought most other new equipment purchases were OK although there was some small discussion of purchasing new computers for Parks and Rec and eliminating one piece of equipment.

After Bivens came up with the $120,000 in savings, no one criticized Bivens for  "micromanaging" the city's budget. Now if every councilmember would get in there--like councilmember Bivens did--and come up with similar savings.  Of course, you can't find savings if you don't look and ask questions, and most councilmembers have not even tried to find savings in this year's budget.

June 1, 2011 City Councilmembers LeBel and Senter at Odds over Council "Travel" and "Slush Fund"

Yesterday, city council met in a brief special called meeting to address three items after which there was a short budget workshop.

SPECIAL CALLED MEETING
In the special called meeting, the City Council voted to appeal U.S. District Court Judge Ronnie Greer's decision in the Patricia Stephens, et al v. City of Morristown case to the U.S. Sixth Circuit Court of Appeals. The City will incur still more legal expenses in appealing the Judge's decision, but at least one goal is apparently to get the appeals court to eliminate or reduce the attorney fees that the City has to pay to the Plaintiff's attorney Gary Davis. See Judge Greer's decision on attorney fees here.

In action related to Judge Greer's order that the City rehab the Witt sewer line, the council voted to obtain two easements in South Hamblen County. One easement (Wallace Properties) will be obtained by agreement. The other (Kenneth McClanahan) will be taken by eminent domain if an agreement is not reached in the next few days.

BUDGET WORKSHOP
In the budget workshop, there was heated discussion over two items in the city council's budget. Paul LeBel questioned the council's proposed travel budget of $15,000. [Update: The proposed travel budget for 2012 is $15,000 up from $8,000 in estimated travel expenses for 2011 and up from $2,909 that was actual travel spending in 2010]  LeBel said that, as a businessman, he travels on 'his own dime." He also pointed out that county commissioners do not have a travel budget.  [LeBel serves on the county commission AND city council.]

When he mentioned that Councilmember Kay Senter has spent $22,000 on travel in the last four years, the temperature in the room began to rise. Kay countered that she and Claude Jinks had discovered a pipe bursting technology on one of their travels and had brought news of this technology to the City's engineering department saving the City lots of money.

LeBel stated that if the engineering department didn't know about this important engineering technology on its own then the City needs new engineers.

Kay then got to the real reason that the travel budget is so high and why it is so important to her. She said that she is in line, as current vice-president, to become president of the Tennessee Municipal League Board in the coming year.

[LeBel may not have known about Kay's TML position, but in the last couple of years, she has mentioned her soon-to-be-coronation as president of the TML Board a number of times. She has also noted on a number of occasions that her city taxpayer-paid travel has helped her to meet with leaders of other cities and work her way into her current position of leadership in TML.  Becoming president of TML is extremely important and significant for Kay.]

LeBel said that's great, but he still encouraged council to travel on its own dime.  The conversation went back-and-forth for several minutes with Mayor Danny Thomas criticizing LeBel for bringing Senter's name into the mix.

Somehow, you have to wonder about the importance of the Tennessee Municipal League being headed by a councilmember from Morristown who sat by while Morristown's finances burned, money was illegally shifted, taxes were raised, garbage fees were started, sweetheart contracts were approved, and on and on.

But nevermind all that, Kay Senter can put down that she is the first or nearly first head of TML from the eastern area of the state! 

Maybe instead of lots of "travel" with TML and other groups, councilmembers should have been tending to the City of Morristown's finances instead of rubber-stamping whatever was proposed.

LeBel also caused consternation when he mentioned the city council's $100,000 "slush fund."  "Slush fund" is LeBel's wording and just happens to echo my characterization of this line item which was added to the City's budget by Tony Cox last year.

Kay immediately defended the $100,000 "grants and subsidies" line item but admitted that maybe it should be called "contingency" instead. She said it helps council make "tough" decisions in the budget year when new items come up. 

What is really does is make what should be tough decisions on extra spending easier for council. Instead of having to make a decision to go back and pull from its fund balance to authorize additional mid-year spending, City Administrator Tony Cox comes to council and says that buying this or that is no problem because you can take it from your "grants and subsidies" line item.  Every time Tony came to council last year and said that the extra spending was "no problem," council went along. No tough decisions there.

LeBel might have succeeded on one item. There will be an examination of the Mayor's Diversity Task Force line item. The Diversity Task Force was created under former Mayor Sami Barile.

More later on how Councilman Chris Bivens saved the City $120,000 just by checking out Administrator Cox's proposed equipment purchases.

May 30, 2011 MEMORIAL DAY

Photo: free-stock-photos.com

TAPS at Arlington Cemetery:

http://www.youtube.com/watch?v=38wx8C7VmB4&feature=related

Memorial Day, originally called Decoration Day, is a day of remembrance for those who have died in our nation's service. There are many stories as to its actual beginnings, with over two dozen cities and towns laying claim to being the birthplace of Memorial Day. There is also evidence that organized women's groups in the South were decorating graves before the end of the Civil War.

Waterloo N.Y. was officially declared the birthplace of Memorial Day by President Lyndon Johnson in May 1966, but it's difficult to prove conclusively the origins of the day.

Memorial Day was first observed on May 30, 1868, when flowers were placed on the graves of Union and Confederate soldiers at Arlington National Cemetery.  It is now celebrated in almost every State on the last Monday in May.

A resolution establishing a "National Moment of Remembrance" was passed in 2000 which asks that all Americans at 3:00 PM local time "voluntarily and informally observe in their own way a Moment of remembrance and respect, pausing from whatever they are doing for a moment of silence or listening to 'Taps'."

May 16, 2011 Judge Greer's 5/10/11 Order "reluctantly" Grants Additional Time for Witt Sewer Work and Notes that City's Actions "to get its financial house in order" Were the Result of its own "malfeasance"

Judge Greer's Order of May 10, 2011, (below) denies the City's requests regarding civil penalties previously imposed against the City and "reluctantly" grants the City's request for additional time to complete the rehabilitation of the Witt Sewer Line, a problem known by the City for approximately six years or more. In granting additional time for rehab of the sewer line, Judge Greer sets out specific benchmarks that the City must meet. Judge Greer also notes that the City's financial problems with illegal fund transfers, etc. were the result of the City's own malfeasance. The Order is printed below with omission of citations [].

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

PATRICIA STEPHENS, ET AL.

v. CITY OF MORRISTOWN, TENNESSEE      

ORDER

On April 28, 2011, this Court held a hearing on a portion of defendant’s motion to alter or amend the judgment, []. The defendant moved this Court to alter or amend its Orders,[], and its Judgment, [], in four ways. These include: (1) adopt a new schedule for carrying out the rehabilitation of the Witt Sewer Line in accord with the defendant’s newly proposed schedule; (2) grant the defendant 45 days to install odor filters on the manholes along the gravity line between the Witt 2 and Witt 3 pump stations; (3) reduce the amount of civil penalties imposed to no greater than those imposed on Koch Foods, a former codefendant; and (4) allow the civil penalties imposed to be waived upon the defendant meeting Court-established benchmarks for completing the rehabilitation of the Witt Sewer line.

This Court decided issues two through four in an Order filed on April 25, 2011, [Doc. 328]. Basically, issue two was moot because the City installed the filters, albeit late. As to issues three and four, this Court denied the defendant’s motion. Also, regarding issues three and four, the defendant asked at the April 28, 2011 hearing that the Court reconsider its decision. This oral motion to reconsider and issue one will be addressed in turn after setting forth a brief summary of the facts and the standards of review. For the reasons set forth below, the defendant’s oral motion to reconsider is DENIED and the motion to alter or amend the Order, [], and Judgment, [], is reluctantly GRANTED.

I. FACTS AND PROCEDURAL HISTORY

Many of the facts are set forth in this Court’s April 25, 2011 Order, [], and they will not be restated here. The City introduced additional evidence at the April 28, 2011 hearing as to efforts taken by the City to secure funding for rehabilitation of the Witt sewer line.

Again, the City’s financial condition is important in analyzing the issue of whether to alter or amend the judgment as to civil penalties and the rehabilitation of the Witt sewer line. Several letters submitted by the City show that Anthony W. Cox, the City Administrator, and Lamar Dunn, an engineer working with the City, have been communicating with the State Comptroller’s Office and the Tennessee Department of Environment and Conservation (“TDEC”) on satisfying the Comptroller’s conditions and TDEC’s requirements for securing the SRF loan, which will fund the rehabilitation of the line.

There was evidence and testimony that the City had included the funding for the rehabilitation of the line in its fiscal year 2011 budget; however, Mr. Cox explained that the budget reflected the amount of the SRF loan which had not been secured. Evidence showed that the City tried to get permission to use other funds from another SRF loan to fund the rehabilitation of the line. Nonetheless, TDEC did not allow this. There was also evidence that the City had placed a higher priority on other projects instead of the Witt sewer line.

Perhaps the most troubling evidence presented was a letter from Mr. Dunn to Bryan Fowler, the City’s Director of Wastewater Operations, on July 30, 2009. The letter was a cover letter to Mr. Dunn’s plans and specifications for the rehabilitation of the Witt line, which the City had requested. More importantly, it states that it is Mr. Dunn’s understanding “that the City has no desire to move forward with this project at the present time.”

This evidence is most troubling because it was represented to this Court that this particular document was not produced to the plaintiffs prior to trial. Nevertheless, there is evidence presented which showed the City, after the May 2010 hearing, did seek funding and was pursuing the project. Mr. Dunn testified to a proposed schedule for rehabilitating the Witt sewer line. He proposed the following schedule:

Loan package sent to City from TDEC 04-21-11

Council action to authorize the accpetance and completion of the loan package 05-03-11 Submittal of completed loan package 05-03-11

Submittal of construction plans and specification for by TDEC 05-03-11

Approval from TDEC to advertise project for bids 45 days after receipt of plans

Receive bids 40 days after approval

Review of bids by Engineer with recommendation 10 days after of award bids

Council approval award subject to approval of TDEC first council meeting after recommendation

TDEC approval of “Authority to Award” construction 45 days after contract c o u n c i l action

Pre-Construction Conference 21 days after ATA

Contract execution for construction with Notice to Proceed 10 days after Pre-Construction Conference

Construction complete/system operational 2 3 0 d a y s after Notice to Proceed

Mr. Dunn testified that his schedule is reasonable in his opinion as an engineer with experience in this type of construction.

II. RULE 59(e) STANDARD OF REVIEW

A motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) may be granted (1) to correct a clear error of law; (2) to account for newly discovered evidence or an intervening change in the controlling law; or (3) to otherwise prevent manifest injustice. []. A Rule 59(e) motion cannot be used to re-litigate previously decided issues, reargue a case, or raise new legal theories. []These motions “are not the proper vehicle to attempt to obtain a reversal of a judgment by offering the same arguments previously presented.” []. Furthermore, Rule 59(e) motions are “‘extraordinary in nature’” and “‘should be discouraged.’” [] As such, these motions are “granted ‘ very sparingly.’” []

III. RULE 60 STANDARD OF REVIEW

A Rule 60 motion may be filed within one year after the entry of the judgment or order or within a reasonable time, depending upon the grounds upon which relief is sought. See Fed. R. Civ. P. 60(c)(1). Furthermore, Rule 60 motion may be granted only for certain specified reasons and is, thus, a significantly higher standard than that for granting a Rule 59 motion. [] Federal Rule of Civil Procedure 60(b) states: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Subsection (b)(6) should “apply ‘only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule.’” []

IV. ANALYSIS

First, this Court will address the City’s oral request that the Court reconsider its April 25, 2011 decision regarding civil penalties. The City argued that the additional evidence presented should lead the Court to alter its conclusion that the City had made no effort to secure the SRF loan other than the initial request. The reconsideration of this conclusion, the City argues, should lead the Court to also change its conclusion as to the amount of civil penalties.

It is true that the evidence presented by the City at the hearing shows more effort on the City’s behalf to secure the SRF loan. However, the efforts the City had to undertake “to get its financial house in order” were a result of its own malfeasance. The State Comptroller’s Office required the City to meet certain conditions before the City was allowed to incur any new debt as a result of an illegal transfer and other issues found in an audit of the City’s finances. The Comptroller’s Office made this clear to the defendant on May 21, 2010, just 10 days after this Court’s hearing where the City represented to the Court that the rehabilitation of the line could be completed by June 30, 2011. The fact that the City could not incur new debt was reiterated to the City on June 21, 2010. Thus, it took time to satisfy the conditions, which delayed the SRF loan, and which delayed the rehabilitation of the line.

It is clear from the record that the City was aware as early as May 21, 2010, that it could not receive the funding to rehabilitate the line. However, the City did not inform this Court of the problems in receiving the funding necessary to rehabilitate the line. In the months thereafter, the City never communicated any difficulty in receiving funding to this Court. It never communicated to this Court that it could not meet the schedule it represented to the Court at the May 11, 2010 hearing. This failure is inexcusable. The City knew that its proposed schedule could not be met and that problems with the Witt sewer line would persist until the line could be fully rehabilitated. Evidence shows that overflows have continued, endangering the environment and human health. Such a failure to inform this Court cannot be ignored. For these reasons, the oral motion to reconsider the decision regarding the issuance of civil penalties is DENIED.

Second, this Court will address the issue regarding the rehabilitation of the Witt sewer line. The City bases its motion on newly discovered evidence and to prevent manifest injustice. See Fed. R. Civ. P. 59. Alternatively, the City argues to alter or amend based on Rule 60 for the “same reasons.” []. Despite the City’s specific written argument, it is actually asking this Court to alter the injunctive relief ordered in documents 307 and 312, namely that the City must rehabilitate the Witt sewer line by June 30, 2011. “A court has continuing jurisdiction to terminate or modify an injunction.” [] Modifications or dissolution of injunctions must take place under Rule 60(b). [] Rule 60(b)(5) provides that a party may obtain relief from a court order when ‘it is no longer equitable that the judgment should have prospective application,’ not when it is no longer convenient to live with the terms of a consent decree. Accordingly, a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Id. “Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous.” [].

In this case, the factual conditions suggest that a modification of the injunction is warranted. As stated above, the City presented evidence that it did make efforts to seek funding for the rehabilitation of the line after its initial request on February 15, 2010. It is also true, however, that the City knew as early as May 21, 2010, that it could not incur debt to fund the rehabilitation of the line. The City also represented to the Court at the April 28, 2011 hearing that the rehabilitation of the Witt line could not be accomplished without incurring debt in the form of the SRF loan. Due to the amount of time it took for the City to get its “financial house in order,” which the City did work actively and consistently to do, the securing of this loan was not possible. Thus, the line could not be rehabilitated by June 30, 2011. The plaintiffs do not dispute that the rehabilitation of the line by June 30, 2011 is impossible. However, they do argue for daily penalties after the June 30, 2011deadline until the line rehabilitation is complete. This Court declines to impose such penalties.

Moreover, despite the egregious error of not informing this Court of its efforts in securing the funding prior to the original Order, [ ], and Judgment, [ ], the City has apparently learned from its mistake. Since the entry of those orders, the City has consistently kept this Court informed of its progress. On May 3, 2011, the City informed the Court that it had completed all paperwork associated with the SRF Application. The package was then hand delivered to TDEC that same day. Therefore, it appears that the City is on schedule with the dates proposed in Mr. Dunn’s timeline, and it appears that it will continue to keep this Court informed of its progress on a timely basis. To be sure, however, this Court will order such updates as set forth below. In addition, the Court will order penalties if the City fails to meet periodic benchmark completions in fairness to the plaintiffs and to keep the City on track.

As such, the City is hereby ORDERED to comply with the following schedule in rehabilitating the Witt Sewer line. The City should note that this Court will likely not be forgiving as to any missed deadline, and the City must keep this Court informed of the progress. The amount of penalties for missing any deadline will not be determined at this time. Such penalties will be decided based on the benchmark missed and the specific reasons for failing to meet such benchmark.

Submittal of completed loan package May 3, 2011

Submittal of construction plans and specification for May 3, 2011 by TDEC

Approval from TDEC to advertise project for bids July 1, 2011

Receive bids August 10, 2011

Review of bids by Engineer with recommendation August 22, 2011 of award

Council approval award subject to approval of TDEC September 1, 2011

TDEC approval of “Authority to Award” construction October 17, 2011 contract

Pre-Construction Conference November 7, 2011

Contract execution for construction with Notice December 1, 2011 to Proceed

Construction complete/system operational August 1, 2012

As just stated, the City shall meet all deadlines listed above. A progress report shall be submitted to this Court within five days of each date listed. Any failure to meet the deadline will subject the City to penalties in an amount to be determined.

V. CONCLUSION

For the reasons stated above, the City’s oral motion to reconsider document 328 is DENIED. The motion to alter or amend Order number 307 and the Judgment, [], regarding rehabilitation of the Witt sewer line is GRANTED.

The Order and the Judgment shall be amended as set forth above. So ordered.

ENTER:

s/J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

May 10, 2011 Danny Thomas, Chris Bivens, Paul LeBel, and Claude Jinks Are Sworn In

The City of Morristown has three new faces. See previous post.

Pictured at left are the new Mayor and five of the six Councilmembers: Front Row (L-R)Councilmembers Kay Senter and Claude Jinks. Back Row (L-R) Councilmember Chris Bivens, Mayor Danny Thomas, Councilmember Gene Brooks, and Councilmember Paul LeBel. Not pictured is Bob Garrett who did not attend the council meeting/swearing-in ceremony.

Danny Thomas took the oath of office as the City's new Mayor yesterday before a packed city chamber room. [Thomas defeated 8-year councilmember Frank McGuffin in the May 3 mayoral contest.]

Chris Bivens and Paul LeBel were also sworn in as new councilmembers.  [Bivens handily defeated longtime councilmember Doc Rooney, and Paul LeBel won his seat with a narrow 24-vote victory in a 4-man race for the at-large seat]

Claude Jinks, who had no opposition in his council race, was the only incumbent to retain his seat on the City Council.

Before the swearing-in ceremony, the prior Mayor and Council met and certified the election results.

Retired Judge Eddie Beckner then swore in the new Mayor and Councilmembers.

Outgoing Mayor Barile graciously handed over the Mayoral office to Danny Thomas.

Outgoing councilmember Doc Rooney graciously handed over the 2nd ward council seat to his successor Chris Bivens. 

Unsuccessful mayoral candidate and outgoing at-large councilmember Frank McGuffin was not present for his last meeting and did not see Paul LeBel sworn in to the at-large seat that McGuffin held for eight years.

Councilmember Bob Garrett also did not attend the meeting or the swearing-in ceremony.

City Administrator Tony Cox congratulated outgoing Mayor Barile and outgoing Councilmember Doc Rooney and gave them a token of appreciation from the City for their years of service. McGuffin wasn't there to receive Cox's congratulations or token of appreciation.

[Councilmembers Brooks, Garrett, and Senter were not up for re-election]

May 5, 2011 Morristown City Election: McGuffin and Rooney Are Out

May 3, 2011, City Election.

Danny Thomas was elected Mayor over Frank McGuffin by a comfortable margin (1406-1048).  [Mayor Sami Barile chose not to run for re-election]

Chris Bivens, a political newcomer, decisively defeated longtime incumbent W.J. "Doc" Rooney for the 2nd ward council seat (1541-833).

Paul LeBel, a sitting county commissioner, now holds two local elected offices. LeBel took the at-large council seat in a 4-way race. LeBel eked out a 24-vote victory over runner-up Charles Cook (840-816).  Darrell Williams had 362 votes and Luke Pack had 361 votes. Frank McGuffin had held this seat for 8 years, chose to run for Mayor, and lost to Danny Thomas.

Claude Jinks had no opposition and retained his 4th ward council seat.

On Monday, May 9th, the newly-elected Mayor and Councilmembers will be sworn in at City Hall at 4:00 PM.

May 1, 2011 Judge Greer Orders City of Morristown To Pay $489,674 in Attorney Fees Plus $56,629 in Litigation Costs to the Law Firm Representing Witt Residents

Background: Witt residents complained to the City about sewer odors almost from the moment that Koch Foods began operation in the East Tennessee Progress Center in 2005. The City did nothing. Complaints continued and stonewalling continued. The residents obtained the services of an environmental law firm and sued Koch Foods. The Witt residents and Koch Foods eventually reached a compromise and a Consent Decree was entered.  During the Koch Foods suit, a related suit was filed against the City of Morristown over its sewer operations and the Witt sewer line. In that suit, the U.S. District Court in Greeneville assessed the City with $105,000.00 in civil penalties for violations of the Clean Water Act [Click here] and ordered the City to repair the Witt Sewer Line. A jury awarded $8,500 in damages to two of the Plaintiffs. Then less than a week ago, Federal Judge Ronnie Greer ordered that in addition to the civil penalties, the City has to pay $489,674.26 in attorney fees and $56,629.00 in costs to the law firm that represented the Witt residents.  I haven't blogged in a while but several people have asked about this...here is the most recent Order with footnotes and cites eliminated [ ] to make it easier to read.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE


PATRICIA STEPHENS, ET AL. v. CITY OF MORRISTOWN, TENNESSEE


ORDER
This matter is before the Court on plaintiffs’ Supplemental Motion for an Award of Costs of Litigation, [Doc. 309]. The plaintiffs move this Court to award them $479,579.06 in fees and $102,629.00 in litigation costs against the City pursuant to Title 33 United States Code section 1365(d), the citizen suit provision of the Clean Water Act. The defendant City has replied, and the matter is ripe for review. For the reasons that follow, the motion will be GRANTED IN PART.

I. FACTS AND PROCEDURAL HISTORY

To review, at the trial of this matter, which took place from November 3-25, 2009, and prior to the jury retiring to deliberate, the Court ruled that Koch Foods, LLC (“Koch Foods”) violated the compatible pollutant limits in its Industrial User Permit 1017 (“IUP”) based on the Court’s interpretation of the permit’s
unambiguous, plain language as setting a ceiling, rather than a surcharge level, for biochemical oxygen demand (“BOD”) and total suspended solids (“TSS”). The Court also ruled that plaintiffs’ state law trespass claims for the intangible odors would be dismissed.

The jury found 72 daily violations of the IUP by Koch Foods for prohibited discharges c. and d.. The jury also found that the City violated its NPDES permit by failing to enforce the [IUP] for Koch Foods or by failing to prevent prohibited discharges from Koch Foods into the Morristown Sewer System. The jury determined that this violation occurred on 72 days. The jury did not find that the City violated its NPDES permit regarding the July 19, 2007 overflow, and the jury did not find that the City violated its NPDES permit by "failing to properly maintain and operate the Witt Sewer Line, including pump stations and pipes." See Verdict Form Questions 3 and 6,

However, the Court subsequently found in its Memorandum Opinion and Order, [Doc. 304], that the evidence at trial did not raise a genuine issue of fact with respect to the July 19, 2007 overflow and that the plaintiffs were entitled to judgment as a matter of law, notwithstanding the jury’s verdict, on that issue.

As to the state law claims, the jury found liability as to three of the 39 plaintiffs on the nuisance claim, awarding a total of $8,500.00 in damages to two of them, and allocating 100 percent of the fault to the City. The jury did not find that the City of Morristown committed inverse condemnation, and it did not find that Koch Foods was negligent.

On February 17, 2010, the Court entered a Consent Decree between plaintiffs and Koch Foods. The Consent Decree reflected a compromise between the plaintiffs and Koch Foods regarding plaintiffs’ outstanding claims for injunctive relief, civil penalties, costs and fees. Then on May 11, 2010, the Court held a motion hearing on several pending motions between plaintiffs and the City. The Court also heard evidence on the issue of civil penalties against the City.

On August 31, 2010, the Court denied the City’s Rules 50(b) and 59 motion, [Doc. 306].  On February 18, 2011, this Court entered an Enforcement Order based on the City's CWA violations. In that Order, the Court ordered that the City rehabilitate the Witt Sewer line as specified by Trial Exhibit 379 by June 30, 2011; and that the City install odor filters on the manhole covers on the gravity line between Witt 2 and Witt 3 pump stations within 30 days after the entry of the Order. Then, on March 1, 2011, this Court issued a Memorandum Opinion and Order which assessed $105,000.00 in civil penalties against the City for its CWA violations, [Doc.311]. Judgment was also entered on March 1, 2011. On April 25, 2011, this Court denied the City’s Rules 59(e) and 60 motion to alter or amend the Judgment to reduce or waive the amount of civil penalties.

II. ANALYSIS

Again, the plaintiffs move this Court to award them $479,579.06 in fees and $102,629.00 in litigation costs against the City pursuant to Title 33 United States Code section 1365(d), the citizen suit provision of the Clean Water Act.3 They support these figures with many filings, the most important of which is a detailed
Declaration of Lead Counsel Gary A. Davis.4 Section 1365(d) states, in pertinent part: The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney fees and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. Id.

The plaintiffs argue that the amounts requested should be awarded because (1) the request is timely; (2) they are the prevailing or substantially prevailing parties; (3) the fees are reasonable and have been apportioned in an equitable manner; (4) the expert fees and other costs were reasonably incurred and are equitably apportioned; and (5) the award is appropriate. See [Doc. 310, page 2-3].

The City argues that the plaintiffs were not substantially prevailing parties, and it challenges the reasonableness and the apportionment of the fees and costs.

Specifically, the City argues that (1) the plaintiffs triple or quadruple billed; (2) the hourly fees are unreasonable; (3) the charges for meals and mileage are unreasonable; (4) all costs related to expert Roger Cameron should be denied; (5) the City should pay no more than Koch Foods; and (6) the total should be reduced by 50 percent to reflect the level of plaintiffs’ success. In sum, the City seeks to pay no more than $93,713.38 in fees and $17,629.72 in costs and argues that, in any event, it should pay no more than the $214,000.00 paid by Koch Foods in compliance with the Consent Decree.

The City argues that the plaintiffs are not substantially prevailing parties because they only prevailed on a portion of their claims. As stated above, the plaintiffs were not successful on their state law trespass and inverse condemnation claims. Only three plaintiffs were successful on their nuisance claims, and the total award was $8,500.00. Thus, the City contends that they were not prevailing parties.

When considering a petition for attorney fees, the court must first determine whether the petitioning party was the prevailing party. [ ] “In the context of § 1365(d), a plaintiff is said to have ‘prevailed’ if he has succeeded on any significant issue in the litigation, which achieves some of the benefits sought in bringing suit.” [ ]

While it is true that the plaintiffs did not succeed on most of their state law claims, they did, however, succeed on a majority of their CWA claims. More importantly, they achieved what was probably their main goal, i.e. an order to abate the nuisance. The Court ordered the City to rehabilitate the Witt Sewer Line and install odor control filters on the manhole covers. The City presented evidence that rehabilitation would cost $1.6 million dollars. In addition, the City is ordered to pay $105,000.00 in civil penalties. Finally, Koch Foods and the plaintiffs entered into an agreement regarding injunctive relief. These “victories” are more than enough to show that the plaintiffs are prevailing parties.

The City argues that the plaintiffs’ requested fees are not reasonable and that the plaintiffs triple or quadruple billed. Now that the Court has determined that plaintiffs are prevailing parties, this Court must determine what fee is reasonable. [ ] A reasonable fee is “one that is ‘adequate to attract competent counsel, but ... [does] not produce windfalls to attorneys.’” [ ] The fee applicant bears the burden of proving a reasonable fee, documenting the appropriate hours expended, and exercising appropriate “billing judgment.” [ ] The starting point is to calculate the “lodestar” amount, which is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” [ ]  This resulting sum may need to be adjusted to reflect factors such as the “results obtained.” [ ].

The factors the Court must consider include: (1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether
the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. [ ]  In addition, the Court should assess the “prevailing market rate in the relevant community” when determining the reasonable hourly rate. [ ]

Here, the plaintiffs argue for a rate of $300.00 per hour for Mr. Davis, $200.00 an hour for his associates, and $75.00 for his paralegal. The plaintiffs attached affidavits from practicing environmental and litigation attorneys in the area, and they state that these rates are reasonable. The City, however, argues for lower rates. It argues for a rate of $200.00 per hour for Mr. Davis and $150.00 to $165.00 an hour for his associates. The City does not address the paralegal rate. It, too, attaches affidavits of practicing attorneys. However, these attorneys do not focus on environmental law.

This Court has considered all of the factors listed above, and it concludes that the hourly rates requested by the plaintiffs are reasonable. This Court will not adjust the fees upwards or downwards based on any of the factors listed above. This case was complex, the pretrial motions were extensive, the trial was lengthy, and the post-trial motions have been numerous as well. The litigation has been on-going for over four years. The trial lasted approximately one month; there were over 50 witnesses and 210 exhibits.

Mr. Davis supports his request with time sheets generated by him and his staff from legal billing software. There is nothing in the record to indicate that he did not use reasonable billing judgment. His declaration establishes that he equitably divided the billable time and litigation expense into three reasonable categories: (1) time and expenses that applied to claims against both Morristown and Koch Foods that cannot reasonably be allocated separately; (2) time and expenses that applied principally to the Morristown case; and (3) time and expenses that applied principally to the Koch Foods case. Category three is not included in the plaintiffs’ request. Furthermore, his declaration establishes that he did not double, triple, or quadruple bill.

In addition, Mr. Davis is very experienced in his specialty practice of environmental law, and the rate for his associates adequately reflects their experience. Plaintiffs’ counsel represented numerous clients in this complex case, and the time requirements were demanding on such a small firm. Also, the firm had to advance the costs because Mr. Davis took the case on a contingency fee basis, which most attorneys, this Court opines, would not likely do with this type of case. This Court notes the City’s argument that the recovery, in its view, was only $8,500.00, but this Court has previously discussed and rejected this contention. It will not do so again.  Moreover, most of the work and evidence used for the CWA claims was the same as that for the state law claims, with a few exceptions.

In sum, when considering all the factors and evidence of the record, the rates proposed by the plaintiffs are reasonable and will not be adjusted. In addition, the time expended was reasonable. These reasonable rates will be multiplied by the reasonable number of hours worked to reach the total amount of fees. Thus, the plaintiffs’ motion is GRANTED in that the City is hereby ORDERED to pay $479,579.06 in fees. See [Doc. 310-1, ¶ 22-26] for detailed breakdown of hours and rates. It is also ORDERED that the City shall pay $10,095.20 in fees, which were incurred in pursuing recovery of attorney fees. See e.g., Coulter v. State of Tenn., 805 F.2d 146, 151 (6th Cir. 1986) (stating fees incurred in pursuit of collecting attorney fees are recoverable). Accordingly, the total amount of fees the City is ORDERED to pay is $489,674.26.

The City also objects to the plaintiffs request for costs. Mr. Davis’s declaration and the information attached thereto is adequate proof of the costs incurred. The City specifically challenges three types of the claimed costs: (1) meals during trial, (2) mileage travel during trial, (3) and Roger Cameron’s expert fees. The City also makes the blanket argument that the fees should be reduced to reflect the level of plaintiffs’ success.

The Sixth Circuit has stated that a plaintiff can recover “those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.” [ ] Meals and mileage qualify as such expenses. Therefore, they will be included in the amount of costs.

Roger Cameron’s expert fees present a different question. While expert fees are recoverable, 33 U.S.C. § 1365(d), they should be reasonable. In addition, these fees are specifically authorized by the CWA citizen suit statute. Thus, it logically follows that the expert fees must be incurred in proving a CWA violation. This Court remembers Mr. Cameron’s testimony at trial quite well. He testified extensively as to the amount of property damage sustained by each land-owning plaintiff as a result of the foul odors emitted from the sewer system. The plaintiffs are correct in that this type of testimony is related to plaintiffs’ standing under the CWA, to claims that Koch Foods had violated its permit by discharging substances that would cause a public nuisance, and to the claim that the City had failed to enforce permit provisions. The claim as to Koch Foods, however, is not relevant to the expert fees incurred as to the City. It is clear to this Court that there was much overlap in Mr. Cameron’s testimony as to the City and to Koch Foods.

Considering all of this, the particular testimony of Mr. Cameron, and the requested fee, this Court determines that the amount sought is not reasonable. Not all of Mr. Cameron’s testimony supported the CWA violations. The majority of his testimony was evidence presented to prove the state law claims. In addition, most of the work for which Mr. Cameron billed applies to the state claims and not standing or CWA violations. As such, the amount of the fee should be reduced to reflect the percentage of his testimony that applied to standing under the CWA and as to the CWA violations of the City. The costs incurred by counsel for travel and a meal for Mr. Cameron’s deposition, deposition costs, postage costs, and Mr. Cameron’s expert fee and travel for trial testimony will not be reduced because it clearly relates to all claims and cannot reasonably be separated. See [Doc. 310-7]. His expert fees, however, should be adjusted to a reasonable level.

For the reasons stated above, the plaintiffs’ motion for costs is GRANTED IN PART. It is hereby ORDERED that the City pay a total of $56,629.00.

Finally, this Court declines to grant the City’s request to reduce any award based on the “amount of success.” This Court addressed that above. Also, this Court notes that all figures reasonably apportioned the fees and costs between Koch Foods and the City as explained in Mr. Davis’s declaration. See [Doc. 310-1]. Lastly, this Court refuses to restrict the amounts to be paid by the City to the same amount paid by Koch Foods as a result of the Consent Decree. The City was determined to be more culpable by the jury. Also, the Consent Decree was a result of a negotiated settlement between the plaintiffs and Koch Foods. The City has continued to litigate matters well past the trial. Thus, the plaintiffs have continued to incur fees and costs.

V. CONCLUSION

For the reasons stated above, the plaintiffs’ motion, [Doc. 309], is GRANTED IN PART. The City is ORDERED to pay $489,674.26 in fees and $56,629.00 in costs.

ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

March 2, 2011 Judge Greer Assesses Civil Penalties of $105,000 Against City of Morristown

Recently, the City of Morristown was ordered by Judge Ronnie Greer to rehabilitate the Witt sewer line by June 30, 2011. Patricia Stephens, et al v. City of Morristown. U.S. District Court for the Eastern District of Tennessee at Greeneville.

Judge Greer has now assessed the City of Morristown with civil penalties of $105,000 in the same federal lawsuit.

In deciding the issue of civil penalties under the Clean Water Act (CWA), the Court determined that the City will pay $1,250.00 per day for 72 violations for a total of $90,000.00 plus $15,000.00 for a particularly serious overflow on July 19, 2007. "The total civil penalties assessed is, therefore, $105,000.00."

The July 19, 2007 overflow, which was one of 14 reported between July 2005-June 2008, resulted in 10,000 gallons of raw sewage flowing from the manhole into the street and the surrounding area where a creek is located. 

Considering that the penalties could have been much heavier, Morristown should be pleased.

Two of the several factors that the Court considered in its imposition of less-than-maximum daily penalties were (1) the violations involved odors and inability of the plaintiffs to fully enjoy use of their property at times rather than violations that poisoned the water and put individuals at risk; and (2) the City's sewer customers and/or taxpayers, both of whom are already feeling the effect of "tough economic times," will ultimately have to bear the cost of the civil penalties.
 
The Court noted that the problems began in 2005 with the opening of the Koch Foods deboning plant in the East Tennessee Progress Center and that the City failed to respond in any meaningful way to the complaints  of the members of the Witt and Roe Junction communities.

The Court: "It took a lawsuit to compel action."

February 24, 2011 Millennium Project Bid Postponed To April 5, 2011

Bidding on the Downtown Millennium Project has been postponed to April 5, 2011.

Click here, here, and here, for background on the many conflicts within this project.

This all started with awards to the City of $1,200,000 of federal grant money for historic preservation and well as improvement and development of the Morristown College site.  Click here.

Four and one-half years later, historic preservation and improvements to Morristown College were left behind.

The City transferred the entire $1,200,000 of federal grant money to the Millennium Partners for improvements to their Main Street property--including "approximately" 22 rooftop parking spaces (atop the private retail shells below) that make the project eligible for grant funds since the City is going to consider this as parking for a "greenways trailhead."  

The lease for the parking deck allows the City, if it desires, to designate two of the parking spaces for  "greenway purposes" and two for handicapped parking. The remaining 18 or so spaces are just standard downtown public parking.

The Millennium Partners include the City auditors (Hiram Jones, son Tom Jones, daughter Mira Craine, and son-in-law James Craine) as J&C Partners; Morristown businessmen/contractors (David Wild and Tim Wild) as D&T Partners; and Dr. Sid Boyd. Businessman Bill Young may still be a partner. 

This is not the first time that the City has transferred grant funds to the Millennium Partners. 

When the first Millennium building was built downtown about 9-10 years ago, the City amended a 1988 UDAG (Urban Development Action Grant) grant in order to give the Millennium group $105,816 of unused funds from that grant. 

[The first Millennium building contains the offices of the City's auditors Craine, Thompson & Jones; of Wild Building Contractors, Inc.; and of Community National Bank).]

February 22, 2011 How Did Morristown College Grant Money End Up With the Millennium Group?

Just how did $1.2 Million in federal grant dollars get moved from needed work at and around Morristown College to the downtown Millennium Partners retail shell space/rooftop parking project?  [This is a follow-up from yesterday's post on conflicts of interest in the Millennium grant process.]

In 2005-2006, federal grant funds of $1,200,000 were received and were to be matched with local funds in a public-private partnership at Morristown College. The goal was preservation of the many historic buildings on the College property along with construction of a Community Center and pools, etc.

Ironically, Todd Morgan, who has been pushing the Millennium project, nominated Morristown College for inclusion in East Tennessee's Endangered Heritage just weeks before Morgan put a plan before the City Council to move the Morristown College grant funds to benefit the Millennium group.

Click here for a post on Morgan's nomination of Morristown College for inclusion on a list of endangered historic buildings and here for a picture of the Laura Yard Hill Administration Building and the full News-Sentinel story.

When the public-private partnership fell through, Mayor Barile signed a contract with TDOT in 2007 changing the scope of the Morristown College grant to construction of a greenway connector trail into the Morristown College site and a trailhead at the Fred Kyle Park with parking spaces.

The new scope also included a perimeter walking path around the College site and 2-1/2 miles of sidewalks with street lights and curbs on parts of Branner Street, Blair Street, Buffalo Trail, Carriger Street, Panorama Drive, E. 6th North, James Street/Daisy Street, Terrace View, and Morristown Cemetery Trail. Drainage problems would also be addressed.

The purpose of revising the plans for Morristown College, as stated by Mayor Barile in her letter to TDOT in 2007, was: "[T]o increase the safety and well-being of the people that live in this area."

After signing the 2007 contract with TDOT,  the City sat on the grant and did nothing. Why? The City was broke and couldn't come up with the local match to access the $1,200,000 of federal funds. Former City Administrator Jim Crumley was hiding a financial mess, and the Mayor and Council either didn't know why the grant work was not starting or did know but were concerned that it all reflected badly on the City, Mayor, and Council.  The Morristown College site continued to deteriorate. 

Mayor Barile, who signed the 2007 grant contract for Morristown College and spoke of the health and safety of area residents, didn't have a clue. According to the Mayor, she didn't know until early 2010 that the City was broke. Click here for the day the Mayor and Council woke up to the financial nightmare that she and the Council have presided over.

Instead of taking care of the city's finances and using the grant funds for the preservation and improvement of the Morristown College site, Mayor Barile and Council spent time and money stamping brick designs on roadways, placing islands in the middle of East First North (that have now been removed), and wailing about "light pollution." 

Morristown College was slowly falling apart. And the City's answer to the deterioration was to take the $1,200,000 of federal grant money that could have been used to preserve and improve the Morristown College site and transfer all that money to the downtown Millennium Square Partnership group, composed of local businessmen and the City's auditors.

Some of the most beautiful buildings at Morristown College have now burned. The historic area continues to deteriorate.  Residents of the area have asked for help as property values decrease and concerns for safety increase. They may get the City to mow the area and do some clean-up.

But the money that was available for the Morristown College area from as far back as 2005 was transferred to downtown businessmen (Millennium Partners) for a project where the City ends up with a 25-year lease for 22 rooftop parking spaces, a bike rack, a stairway, and a sign designating the rooftop parking as a greenways "trailhead."

$1,200,000 for safety, historical preservation, parking, sidewalks, lights, and curbs, OR 22 rooftop parking spaces? The City chose 22 rooftop parking spaces.

February 21, 2011 TDOT: Wild Building Contractors Can Not Bid on Millennium Project Due to a Conflict of Interest

Neil Hansen with TDOT (Tennessee Department of Transportation) apparently informed the City of Morristown on 1/26/11 that it is the position of TDOT's legal counsel that Wild Building Contractors (WBC) can not bid to perform the construction work on the Millennium Project because of a conflict of interest. [Click once or twice on the e-mail at left to enlarge and read]

Hansen summarizes TDOT's position: WBC can not act as a subconsultant to the City's Architect (BIF) and then turn around and bid on the construction contract for this same project. [Click on the above page from BIF's Letter of Intent to enlarge and read]

Click here for a previous article with links to prior posts.

City Administrator Tony Cox did not inform council of this development during his Administrator's Report at council's 2/1/11 or 2/15/11 meeting. Todd Morgan has said nothing publicly. Nothing has been reported in the "news"paper.

The City filed a response last week, attaching a letter from Wild's Attorneys (Woolf, McClane, Bright, Allen, & Carpenter, PLLC) who in turn attached a letter from the Architects Brewer, Ingram & Fuller and other exhibits.

TDOT's position should not be surprising to potential bidders on the Millennium project. In addition to the conflict cited by TDOT, these contractors see many other conflicts of interest that unfairly tilt the bidding process in favor of the Wilds who are partners in Millennium Square Partnership and who, as MSP partners, are ultimately footing the bill for the Architect's fees.

At least two contractors who paid for plans and who initially planned to bid (Ed Hale Construction of Morristown and Inland Construction) have cited conflicts of interest involving WBC/David Wild/Tim Wild as the basis for pulling out of bidding on this Project.  I'm sure that these contractors and others who took out plans could provide a lot of additional information on conflicts of interest and appearances of impropriety in the pre-bid and post-award process.

Why is the Architect (BIF) trying to get Wild back on the bid list? Perhaps it is because the Wilds are partners in the Millennium Square group that is paying the City to cover the Architect's fees on the project.  

Now it is a waiting game to see if the City, BIF, and Wild can convince TDOT to reverse itself and decide that (1) when BIF asked Wild to prepare cost estimates, this was not a conflict of interest and (2) when BIF prepared its Letter of Intent and said that Wild was a proposed Consultant for Estimating, this was an "error," and (3) when Wild prepared estimates and/or helped with design suggestions, there was not a conflict because WBC never had a contract with BIF and never was a "paid" consultant on the project.

What could happen if Wild insists on bidding?  There are several possibilities. A prospective bidder could seek an injuction to stop or delay the bidding pending a determination by a court of the legality of Wild's participation in the bidding.  If the bidding proceeds and the construction contract is awarded to WBC, this could result in a lawsuit by an unsuccessful bidder. 

From the City's perspective, the worst possibility would be that Wild or even someone else gets the construction contract and there is a later finding of bid and/or post-award irregularities that could result in the City being required to reimburse TDOT for all state and federal funds expended on this project.

With the City's current financial mess, it certainly couldn't afford to pay back $1,400,000 + or - in grant funds. Right now, the City is not even certain that it will be able to buy a garbage truck by year's end.

A $1,400,000 + or - money trail leads to a lot of conflicts and a lot of switching money around.

The "Millennium money" was originally intended for Morristown College, not once, but TWICE!

Tomorrow, I will post on what the money was initially supposed to be used for and how financial mismanagement at City Hall prevented the money from being used at Morristown College as originally intended and led to the transfer to the Millennium group.  [UPDATE: Click here for the history of the Morristown College to Millennium money switch.]

February 4, 2011 District Attorney: TBI Investigation of David Purkey/Tennessee Highway Patrol: Reprimand of Purkey's Special Friend Trooper John R. Jones

After my post of December 30, 2010, many people asked me to post the actual letter from DA Steve Bebb to Criminal Court Judge John Dugger that was mentioned. Some people claimed it didn't exist. Some said that David Purkey would never lie to the "news"paper or to the public about anything. Others said if this was really true, the "news"paper would have reported it.

Well, the letter is posted above. You can click on the image to enlarge it and read it or print it out.

What brought about the TBI investigation and the DA's letter was a 2006 election-eve Purkey campaign postcard that said it was "paid for by John R. Jones" but did not mention Purkey's involvement with the postcard.

DA Bebb's letter states that the TBI investigation of former Hamblen County Mayor David Purkey found that Purkey apparently violated the election laws of the State of Tennessee.  Bebb then adds that he won't charge or prosecute Purkey because it might be costly and it might be difficult to seat a jury in Hamblen County--assuming Purkey would ask for a jury trial.

The postcard that the TBI investigated was a last-minute mailout by the Purkey campaign that did not acknowledge that Purkey was involved in the mailout or endorsed the message on the postcard.  For his part, Purkey, when questioned about the postcard by local "news"paper reporter Bob Moore,  denied any involvement in the mailing. [See newspaper article below and click on it to enlarge and read Purkey's comments at the end] 

Despite Purkey's very public denial of any involvement with the postcard, the TBI investigation found that Purkey was indeed involved and thus committed a Class "C" misdemeanor. Strangely, the DA stated nothing about the involvement of a friend of Purkey--John R. Jones, a Tennessee State Trooper. No mention of John R. Jones and no charges against John R. Jones.

Kind of funny how the local "news"paper reports a public official's denial of any involvement with a campaign postcard that was received by many people across the county but the same "news"paper never follows up and reports that a TBI investigation found that the official WAS involved with the postcard but the DA decided to give Purkey a "pass"!

In my December 30 post, I mentioned that the person whose name was put on the postcard (John R. Jones) happens to be a "special friend" of Purkey. While the DA didn't mention Jones in the letter to Judge Dugger, the THP investigated Jones' involvement and issued a written reprimand to Jones. [Click on the reprimand above]

So...the "news"paper refused to report that DA Bebb sent a letter to Judge Dugger stating that Purkey apparently committed a crime. The "news"paper refused to report that DA Bebb was not prosecuting Purkey because of Purkey's position, the difficulty in seating a jury, and to save money. The"news"paper refused to report that the person whose name was put on the Purkey postcard was Purkey's special friend Tennessee Highway Patrolman John R. Jones.

The "news"paper did report Purkey's denial of any involvement in the last-minute postcard. Then silence.  Apparently, it is "news" when the official says he isn't involved in the crime. But it isn't "news"---and it isn't reported at all---when the TBI investigation is over and it is discovered that the official was lying and covering up his involvement all along. 

And now David Purkey, who violated election laws, who lied to the press and public to cover up his involvement in violating election laws, and who got a "pass" from the District Attorney, is Assistant Commissioner of Homeland Security for the State of Tennessee.

Purkey's official crime was a misdemeanor.  The unofficial crime was that he lied to the press--and to the public--when he denied his involvement with his campaign postcard and even failed to admit that he knew the John R. Jones whose name was listed on the postcard.

And the cover-up continued as the investigation was ongoing. After he was caught in the violation of election law and after he had lied about his involvement with the campaign postcard, Purkey filled out a campaign financial disclosure form that said that [John] Rick Jones of Murfreesboro made a "loan" of $850 to Purkey's mayoral campaign on October 23, 2006.  Now there may be a check to the Purkey campaign from John Rick(y) Jones in October 2006 but you have to ask WHY would Jones be sending a check to Purkey's mayoral campaign over two months AFTER the postcard mailout and over two months AFTER the election? Purkey didn't need any loan AFTER the election was over. 

One reason Purkey may have reported the "loan" from Jones would be to avoid financial disclosure problems that could occur if he didn't report Jones' postcard/loan to the campaign. Click on the Financial Disclosure form below to enlarge.

February 3, 2011 County Commissioner Paul Lebel Running for Morristown City Council?

Hamblen County Commissioner Paul Lebel may be running for the Morristown City Council at-large seat.
Lebel picked up a petition to run for the at-large seat earlier today.

There are at least three others who have picked up petitions for the at-large seat: Charles Cook, Ann Harville, and Luke Pack.

UPDATE: Another person who picked up a petition to run for this at-large seat is the incumbent Frank McGuffin.  Actually, McGuffin took out TWO petitions several weeks ago. One petition was for this at-large seat AND the other was for Mayor. Since taking out both petitions, McGuffin has waffled for weeks about which seat he would run for although every indication was that he was going for Mayor. 

My guess is that Frank waffled all this time because he was waiting for Lebel---or someone else whom Frank considers the right kind of person---to pick up a petition for the at-large seat. Now Frank is free to announce that he running for Mayor. 

[Lebel does not have to resign from his seat on county commission in order to run in the city election.]

January 26, 2011 Millennium Square Bidding Postponed to March 8, 2011

Another bidding postponement for the Millennium Square project has been announced. The new bid date is March 8, 2011. 

The City of Morristown received grant funds for Morristown College in 2005. The City transferred Morristown College grant funds to the Millennium Square Partnership group in early 2010. 

Millennium Partners include four members of the City's auditing firm (Hiram Jones, Tom Jones, James Craine, and Mira Craine); two members of a local construction company (David & Tim Wild); and two other individuals (Dr. Sid Boyd and Bill Young).

[Due to recent business and personal financial difficulties, it is not certain that Bill Young is still a Millennium partner]

Click here, here, here, here and here for background info on the connections.

It is a complicated situation with 2005 grant funds of anywhere from $890,000 up to $1,500,000 being shifted around and finally ending up in the hands of the Millennium partners.

Throughout the saga, Millennium Partners David and Tim Wild have worn several different "hats."  They wear Millennium "owner hats." They wear Wild Building Contractors "construction hats." They wear "local match hats" as they chip in 10% of grant costs in order to get the other 90% paid for by taxpayer grant money. They apparently also wear "consultant hats" and "estimating hats."

During initial consideration of the project in early 2010,  David Wild, wearing his Wild Building Contractor hat, and Tim Wild, wearing his D&T Rental hat, wrote letters to the Tennessee Department of Transporation  (TDOT) endorsing the transfer of Morristown College grant money to the Millennium Square partners.

By some strange coincidence, both David and Tim failed to add a disclaimer to their letters acknowledging that they were among the Millennium partners who would benefit from the grant transfer that they glowingly endorsed.

Hiram Jones, wearing his C(raine) & J(ones) hat, also wrote a letter to TDOT in early 2010 endorsing the transfer of Morristown College grant money to Millennium Square partners.

Like the Wilds, Jones failed to add a disclaimer to his letter acknowledging that he was among the Millennium partners who would benefit from the grant transfer that he glowingly endorsed.

With the grant transfer, the Millennium group is going to chip in 10% of grant costs in order to get 90% of grant costs paid by federal/state taxpayer grant money. This nine-fold return on investment is just not enough for the Millennium group. 

Millennium partners David and Tim Wild not only want their Millennium property improved largely at taxpayer expense, but they also want the taxpayer grant money that will be paid for these improvements to be paid to them while they do the work wearing their "Wild Building Contractors hat."

December 30, 2010 David Purkey Named Assistant Commissioner for Homeland Security

Former Hamblen County Mayor David Purkey has been named Assistant Commissioner for Homeland Security by Governor-elect Bill Haslam. Click here.

In 2008, David pretty much left his job as Hamblen County Mayor to Commision Chair Stancil Ford and started campaigning for Haslam.  David hoped to be Commissioner of Safety in Haslam's administration. 

Haslam, however, tapped Shelby County District Attorney Bill Gibbons for that position.  With Purkey's appointment as Deputy Commissioner for Homeland Security, Purkey will have large amounts of taxpayer Homeland Security money at his disposal and wide access to personal information on citizens.

Hopefully, Gibbons and Haslam can keep David from putting the Homeland Security budget in the red like he put Hamblen County in the red in 2003 after 8 years as Mayor. For his multiple violations of law and general mishandling of county finances and driving the county to the brink of bankruptcy in 2003, click here, here, here, and here. Every single statement has been documented, and David has never attempted to refute any of the statements about his mishandling of county finances or putting a special friend on the county insurance plan even though he was not a county employee and not eligible for coverage.

Hopefully, Gibbons and Haslam can keep David from running around and ordering expensive shows of overwhelming force to shut down anti-illegal immigration rallies. For his use of Homeland Security, THP, and local enforcement in shutting down an anti-illegal immigration rally, click here and here.

Hopefully, Gibbons and Haslam can keep David from using Tennessee Highway Patrol troopers to assist him in violating election laws as David did in his 2006 run for County Mayor. 

And, hopefully, Gibbons and Haslam can keep David from lying about his illegal actions when he gets caught violating laws or obtaining and using personal information to get political opponents directly or through their families. 

He's out of Morristown/Hamblen County for now, but his use of state law enforcement and Homeland Security resources to stop an anti-illegal immigration rally in 2006, his bankrupting of the county in 2003, his accomplishment in having more audit findings than any other county in the state, his use of a Highway Patrol Trooper in 2006 to violate criminal election laws, his lying to a compliant press about his violation of criminal election laws in 2006, and his being given a pass by a district attorney for his criminal violations is a lasting, pitiful legacy to a man who plans to lead "Homeland Security" in Tennessee.

For someone who is going to be in a sensitive law enforcement position, the real kicker is Purkey's "use" of law enforcement trooper friends to violate election laws in 2006 followed by Purkey's blatant cover-up of his involvement in those violations by publicly denying any knowledge or involvement with an Election Eve postcard mailout in 2006-- a public statement that was later found to be false.

The "news"paper reported on the Election Eve postcard and published Purkey's strong denial of any involvement. The "news"paper also noted that an investigation had been ordered. Then there was total silence.

When the investigating District Attorney's letter/report was sent to Judge John Dugger in May 2007 stating that David was "apparently" involved in criminal election law violations related to the Election Eve postcard, the local "news"paper reporter (Bob Moore) ignored it.  Why? The initial story was reported. Why no concluding story?

The local "news"paper reporter also ignored the fact that David had lied to Moore in 2006 when David denied any involvement or knowledge about the Election Eve postcard mailout, a postcard that said it was paid for by a John R. Jones, who, as it turned out, was David's special Highway Patrol law enforcement friend. Why? The initial statement was reported? Why no follow-up at the conclusion of the investigation?

[The District Attorney's letter/report referenced a TBI investigation and the fact that David Purkey apparently violated criminal election laws. The DA then refused to prosecute. Why? Because Purkey might demand a jury trial and this would cost some money and, heck, it might be difficult to seat a jury in Hamblen County! 

Preliminary TBI reports gave the DA an early indication as to where the investigation was headed and the parties that were involved --David Purkey and his special friend Trooper John R. Jones.  If the DA was going to give David and his law enforcement friend John R. Jones a pass even though all the evidence, interviews, and witnesses pointed one way, he should have stopped the investigation at the start and saved the money for prosecution of some little unknown person somewhere where seating a jury would be "easy."]

Many things can seem trivial when viewed in isolation.  It's surprising that Haslam could not or did not attempt to find someone for this sensitive position who had not used law enforcement friends to help him break the law and had not then publicly lied about it.

It is David Purkey's use of law enforcement friends to assist him in breaking the law followed by his public lies to cover-up his actions and those of his THP law enforcement friends that make his selection for a sensitive position as Deputy Commissioner for Homeland Security singularly standout.

He used a Tennessee Highway Patrolmen in an election campaign in violation of criminal election laws and lied about it.  What could he do or attempt to do to political opponents, their families, and their friends with his power as Deputy Commissioner of Homeland Security?  Who watches the watchers?

December 29, 2010 Millennium Bidding Postponed Again

The Millennium Square Project Bidding has been postponed again. The new bid date is tentatively February 1, 2011. Click here, here, and here for recent posts.

The original bid date was December 14, 2010.  However, on December 10, 2010, TDOT cancelled that bid date based on questions raised by contractors and information provided to TDOT by Councilman Gene Brooks about conflicts of interest and other contract-related issues. These issues still have to be addressed.

At about the same time, the architectural firm Brewer, Ingram & Fuller set a new bid date of 1/4/11.

Now, the Architects have set yet another new bid date of February 1, 2011, ostensibly at the request of the City of Morristown in order to work out contract-related items with TDOT (Tennessee Department of Transportation) and "others."

The conflicts and webs of relationships in this project are about as extensive as they can be. The Millennium Square owners are Tim and David Wild, James and Mira Craine, Tom Jones, Hiram Jones, Sid Boyd, and Bill Young. 

In addition, the Craines and the Joneses are principals in the city's auditing firm Craine, Thompson & Jones. The Wilds are also principals in Wild Building Contractors. Millennium Square Partners/Craine Thompson & Jones/Wild Building Contractors are tightly knit.

Now the Craines and Joneses and Wilds not only want the city's ($890,000-$1,200,000) grant money for improvements to their Millennium property, they also want the Wilds to be able to take off their Millennium Owner hat and put on their Wild Building Contractors hat and bid to perform the actual construction work. 

[Originally Millennium Partners/Wild Building Contractors wanted Wild to be "given" the contract for the construction work without any bidding. The plan was to have Wild designated as a "sole source" provider for the  construction  work. That plan didn't go very far, however, because construction work of this kind is NOT any type of specialty work that only Wild can do.

Had the attempt to pursue a "sole source" designation  for Wild been successful, it was designed to enable the City to "select" Wild as contractor without any competitive bidding and keep the project and all the grant money in the Millennium Partners' hands.]

Apparently getting lots of free improvements of  $890,000+ or - to their property and access to public parking that the Millennium employees could use is not enough for the Craines, Joneses, and Wilds.

December 25, 2010 Merry Christmas To All