More than 16 months after the Red Bay Water and Gas Board filed suit against City Councilman Jason Vison and the City of Red Bay and regarding the Council’s appointment of Vinson to the Water and Gas Board, the case has been ordered dismissed by Judge Terry Dempsey.
Dempsey issued an order of dismissal on August 4, 2021, following a motion by City of Red Bay attorney Roger Bedford, who argued the Water and Gas Board did not have standing to file the lawsuit. The order states that the “defendant can file a response within ten days consenting to the posting of a bond if he wishes. Otherwise this case will be dismissed with leave for the Plaintiff to file a new case if he so desires.”
The key issue, the City argued, is that the Water and Gas Board did not post security for costs in the case. Security for cost, according to Westlaw, “requires a plaintiff to post money into court in advance of each step of the lawsuit, thereby ensuring sufficient funds are available to the defendant if the defendant succeeds at trial.”
This apparently was not done in this case by Water and Gas, resulting in the ruling.
“It is clear from the Judge’s order, entered on August 4th, the case has not been dismissed and the court will allow this case to be refiled if the Mayor and City Council desire,” Red Bay Water and Gas Board President Ronald Thorn told The News. “(This was a) technicality that could have been raised when the suit was filed but was not raised until 15 months later and after the trial of this case had begun. Red Bay Water and Gas presumes the Mayor and Council will agree for the technicality regarding the issue of posting security for cost to be resolved by allowing Water and Gas to post security for costs, which will not harm the City in any form.”
However, that is not expected to happen as Bedford said the city was never looking for a legal fight and was following past precedent in appointing Vinson to the Board to fill a position previously held by Frankie Smith.
“The case is dismissed for a jurisdictional defect,” Bedford said. “You have to post security and costs and they didn’t do that. It doesn’t matter if it’s the first day or the fifth year into the lawsuit, they didn’t have the proper standing to file the suit. They didn’t follow the law properly.”
Thorn, however, said no order for security and costs was ever issued.
“This matter was originally filed on the 30th day of March 2020,” Thorn said. “Since the time of filing, the parties have filed various legal filings and hearings have been held. The case was set for a final hearing on the 2nd day of July 2021. During the trial the attorney for the City requested a recess/continuance to allow him to research an issue of the authority for this matter to be filed as stated, not to raise an issue concerning security for costs not being posted when suit was filed. After the matter was recessed, the city attorney filed a Motion to Dismiss because there was no security for costs posted by Water and Gas when the suit was filed, even though no Order was entered requiring security for costs. What the City is doing is raising a technicality and this issue has not raised for 15 months. In addition, numerous opportunities have arisen for this issue to be raised such as when other legal filings have occurred and when other proceedings have been held.”
Bedford, however, remained steadfast in the city’s position.
“Our side hasn’t been heard yet,” Bedford said. “The fact they made a mistake is not our fault.”
Appointment contested
The dispute arose following the City’s appointment of Vinson to serve on the open seat on the Water and Gas Board. From the beginning the Water and Gas Board bristled at the appointment, arguing the City could not appoint a sitting member of the Council to serve on the Board.
Thorn provided a copy of the original certificate of incorporation from 1940 to The News. That certificate states the board should consist of three members and “the board of directors shall be elected by the governing body of the Town of Red Bay. None of the members of the said board of directors shall b(e) an officer of the Town of Red Bay.” An apparent typo exists on the certificate with the word “be,” which has been corrected to “be” with handwriting.
Bedford said the certificate has been amended multiple times throughout the years, including to add additional members to bring the Board to its current number of five members. He said it had not been an issue in the past with City Council members serving simultaneously on the Board, citing Herbert Trulove and Tommy Nelson as examples. An issue did arise at one time with Nelson regarding his serving in positions both with the city and the Water and Gas Board, but that was resolved.
“Mr. Nelson remained on the Water Board as a voting member,” Bedford said. “It’s never been a problem in the past. Obviously, the City has the right to appoint them (Council members). They (Water and Gas) admit that. And it has happened in the past. But now they say they don’t want Jason to serve. The City Council has members on every board for the city.”
Thorn said the lawsuit and the Board’s stance on Vinson’s appointment has never been personal.
“The Incorporation of Red Bay Water and Gas allows the City Council to appoint any citizen to the Board except for the Mayor or City Council members,” Thorn said. “This suit was never an attempt to attack a City Council member, nor the City. This suit was filed to protect the rights of the rate payers of Red Bay, Pleasant Site, Pogo, Halltown, and Burnout by having a Board that operates independently from the City as was contemplated in the original incorporation.”
What happens next remains to be seen. The Water and Gas Board could refile the case or the two boards could begin discussions outside of court on how to proceed.
“We (the City) didn’t bring the lawsuit,” Bedford said. “This is a time when the Water Board and the City should sit down and try to work this out instead of going through litigation. The way to protect ratepayers is to allow the City and the Water and Gas Board to work hand in hand.”
Mayor Charlene Fancher echoed this sentiment when she announced the judge’s decision at the end of last week’s Red Bay City Council meeting.
“It is our sole intention to work in harmony with all of our boards,” Fancher said. “If we don’t have communication and teamwork, we can’t make progress. Communication is very important with all of our boards and ultimately, this City Council is in charge of all other Boards in this city. I hope this is a new step toward a better direction.”
The matter could still end up in court.
“If this leads to a dismissal due to a technicality, then nothing has changed,” Thorn said. “This suit was filed to protect the rights of the rate payers of Red Bay, Pleasant Site, Pogo, Halltown, and Burnout by having a Board that operates independently from the City as was contemplated in the original incorporation. That has not changed and we will proceed accordingly to what is needed to protect the rights of the citizens we serve.”
