Two day trial; “Did not call meeting” selectman said

 After another attempt to delay the proceedings by defense attorney Dennis Horn, the trial Patterson versus the McComb selectmen finally started in front of a larger than normal audience. Judge Michael Taylor heard the Complaint for Declaratory Relief, Injunctive Relief, Mandamus (filed on November 3, 2009 by McComb Mayor Zach Patterson) during a two day hearing, on Tuesday, March 2 and Wednesday, March 3. Patterson’s lawsuit against all of the selectmen of the McComb Board of Mayor and Selectmen centered around the illegality of the August 26, 2009 Special Call meeting of the board.

All six of the selectmen: Wade Lamb, Danny Esch, Robert Maddox, Ernest Charles Nobles, Melvin Joe Johnson and Robert Earl Smith were called as witnesses along with some city employees and the mayor. Other witnesses were City Administrator Quordiniah Lockley, City Clerk Jeanette Butler, Deputy City Clerk and Executive Assistant to the Mayor and City Administrator Sherry Spears, and Accounts Payable Deputy City Clerk Stephanie Forrest.

It was the potential defense witness who was not there that Horn said was the reason he was requesting another delay in the trial. Horn told Judge Taylor that McComb city attorney Wayne Dowdy was out of town involved in another court proceeding. However, the request to delay the trial was denied. The trial was originally scheduled for February 4, 2010, but Dowdy was unavailable and it was rescheduled to begin on March 2. Patterson’s attorney, Carroll Rhodes filed a response to the defense’s motion to recess trial testimony stating that Dowdy as a witness is unnecessary, his testimony would violate attorney-client privilege (Dowdy is the attorney for the entire city board which includes the mayor and selectmen), he has admitted that he has a conflict of interest in this case, he could testify by deposition, his testimony would be inadmissible, and Patterson “and all citizens in the City of McComb will be prejudiced by the continued unlawful conduct of the defendants.” The motion concludes: “The request by the defendants is a delay tactic. Municipal elections are scheduled this year, and the matter needs to be resolved expeditiously.”

The two day trial included Judge Taylor denying Horn’s motion to dismiss the case, his opening statement, the plaintiff’s case, the defense’s case, and a continuance granted at the end to allow the trial to continue to give Dowdy an opportunity to testify on March 26. Neither side gave closing arguments. Mayor Patterson and his attorney were seated at a table next to the defense attorney’s table. Behind the three of them were seated against the wall, all six of the selectmen.

Horn opened the trial with his Amended Motion to Dismiss. He said that Patterson should have filed an appeal. He said the case “is a backwards way of obtaining a claim against the selectmen. What the mayor did was shut down the City of McComb by removing his electronic signature and Mary Adams removed her signature.” Horn said that Patterson did not follow Horn’s proposed adequate remedy to the August 26, 2009 special called meeting. He said legislative law on special called meetings is convoluted and the meeting only required 2 selectmen to call the meeting.

Rhodes responded by telling Judge Taylor that the lawsuit is a complaint against 4 selectmen about the conducting of the August 26, 2009 special called meeting. He said that this was a case where a special meeting was called, but the mayor and another selectman were not notified 3 hours before the meeting. He said that the state constitution holds that such a meeting is illegal and all acts of that meeting are void. “On January 4, 2010, another special called meeting was held without notifying the mayor. The mayor is concerned about the selectmen continuing to violate the law and act illegally,” Rhodes said. “The statues related to special called meetings have not been repealed or overruled. There is a statue that requires that the mayor follow the law.” He said that in “Dupree vs. Carroll (2007)” the Mississippi Supreme Court ruled that this action is a proper remedy. Rhodes said that Patterson is seeking mandamus, that is, for the court to make the defendants follow the law.

Horn offered his rebuttal saying the defendants were concerned that the mayor is trying to void the actions of the special called meeting. Then Horn made a motion to recess the proceedings to wait for Dowdy who he said was at another trial. Rhodes told Judge Taylor that Dowdy was not necessary for these proceedings and he’s had plenty of time to make himself available. Taylor denied Horns motion to dismiss and left the other motion open. Rhodes waived his opening statement. In his opening statement, Horn said that he will prove that the lawsuit is a culmination of a power struggle between the mayor and the selectmen, starting with lawsuits in 2008. “The board, frustrated, filed and approved amendments to remove and transfer authority. Continued frustration of the mayor led the mayor to shutdown the city. Patterson removed his signature and had Mary Adams remove her signature,” Horn said. “Selectmen were forced to meet and hand sign checks to keep the city going.” In an attempt to demonstrate that Patterson does not have “clean hands” (a legal condition that allows or disallows a plaintiff the right to bring charges of wrong doing against someone else as long as he or she is not guilty of the same or similar kinds of wrong doing), Horn said Patterson did not follow proper procedure regarding contracts with three companies. Horn said that the City did not ratify contracts with bonding attorneys Chambers and Gaylor, Harris and Geno, and Atlanta-based consultants The Malachi Group, the minutes were not recorded, but the bill was paid, although not approved by the city board.

Rhodes called Nobles as his first witness. Nobles, 36, is selectman of Ward 3 and has served in that position, he said, for nearly 2 years. Under questioning, he said the mayor’s role is to preside over the meetings, sign documents and be the tie-breaking vote. He listed the other selectmen and wards as: Ward 1-Esch, Ward 2-Maddox, Ward 4-Johnson, Ward 5-Smith, and At Large-Lamb. Nobles said that the city charter is silent about special called meetings. He said special called meetings are addressed in the city ordinances. Nobles said that he met with city administrator (Lockley) after the August 25, 2009 city board meeting to see what to do about the payroll and signing checks. He said the next morning Lockley brought the special call meeting notice to Noble’s place of business, Nobles Cleaners, so he could sign it. He said that he received another notice at his business from police officer Miller between 11am and 12noon that same day about the 2pm special called meeting that day. Nobles said the form showed the time of signing at 11:15am. But, he said he signed the notice sometime after 11:15am. Patterson contends in his lawsuit that the selectmen and the mayor must be notified at least 3 hours before the starting time of the meeting. In this case that would require all parties to receive the notice before 11am. Nobles testified that he attended the special called meeting on August 26, 2009 along with Maddox, Lamb, Smith, Esch, Lockley, Dowdy, Butler, and Spears. “We elected a mayor pro tem to serve at that time—Robert Earl Smith to run the meeting,” Nobles said. He said that the resolution to designate who could sign the checks was already prepared before the meeting was started. However, he indicated that the minutes of the special called meeting was not signed and adopted in the months of September or October. Those minutes were not signed and adopted until the November 8, 2009 board meeting. Nobles also confirmed that the mayor’s name was not included on the notice drafted by Lockley, but he (Nobles) read it and signed it anyway. Nobles also testified that during another special called meeting on January 4, 2010, Johnson, the mayor pro tem refused to preside over the meeting because Johnson said the mayor was in the city. The next witness was selectman Smith. He said that he has served on the board for a total of 16 years. He said that the past and present practice is that a police officer serves a notice within 3 hours of the calling of a special meeting. “Two selectmen can call a special meeting and the notice points out the details of the meeting,” he said. “I’ve never been on a board where anyone but the mayor called the special meeting—until now with this current board that had two selectmen call the meeting. The long standing practice has always been 3 hours prior notice.” Smith said that he could not recall when the police officer brought the notice of the special called meeting to him, and he could not recall if a previous mayor had given just a verbal notice. The next witness was selectman Maddox who’s testimony raised eyebrows throughout the courtroom when he stated that he did not recall when he had signed the notice for a meeting, a meeting he said that he did not call. He said that he did not know anything and could not recall anything. He said that it’s possible that Lockley or someone asked him to sign papers and notices that he had not researched. He said he never called for a special meeting and he was never one of the two selectmen required to call such a meeting. “I did not know the form was being prepared—I knew nothing about any special called meeting until they gave me the papers to sign.” The documents said the meeting was called by Maddox and Nobles. Selectman Johnson testified next. He said that he was present at a special call meeting where interim city attorney Angela Miller told the city board that they could not hold that special meeting because the mayor was in the city. He said that she said they could not have the meeting if he was in town. Selectman Lamb testified after Johnson, and said the same thing. “Because of her legal opinion, we did not have the meeting.” Rhodes asked Lamb who was the person who drafted the June 9, 2009 amendments to remove the mayor’s powers. Lamb said that it was Horn who prepared those amendments. Rhodes said that Horn drafted the ordinance change, even though he wasn’t hired by the city as the city attorney to do this. Lamb said he “wanted the mayor’s position to remove (suspend or terminate) people changed—that’s what the ordinance changes were for.” Lamb said that he recalls receiving a phone call from Sherry Spears first, and later, received a written notice about any special called meeting. Lamb and Nobles both testified for at least one hour. Lamb emphasized during questioning that “a phone call always preceded the written notice to ask if he would be available—every time a special meeting was held, I got the notice usually 3 hours before the meeting. But, I can’t say everyone was a 3 to 4 hour notice.” He testified that he has always received a written notice. The city administrator was the next witness. Lockley testified the notice of a special called meeting is usually done the night before the meeting, more than 3 hours before and served by a written notice. He said that executive secretary and deputy clerk Sherry Spears typed the notice for the August 26, 2009 special called meeting. Lockley said the police officer picked up the notice at 11:15am. Lockley admitted the timing of the notice “did not meet the 3 hour notice” city policy that includes a verbal or written notice delivered within 3 hours. He said that Spears called the mayor and selectmen around 10am that morning. However, he said that she never spoke to the mayor. Instead, she left a message on his voicemail. Mayor Patterson was next on the witness stand. Horn questioned him about the 3 firms that were first involved with the funding for the $34.8 million Waste Water Treatment Facility project and eventually the $9.5 million city improvement bond project. Patterson said that he only executes (signs) contracts approved by the city board. He said that his electronic signature with First Bank is used to authorize and make payments, including money wire transfers. During Horn’s questioning of Patterson, he shifted the subject to the city board meeting where Patterson asked Horn to leave the boardroom and threaten to have a police officer remove him from the crowded boardroom. Patterson said that he remembered the incident because selectman Nobles “fetched” Horn a chair. Patterson said that he assumed duties of the city administrator after Dr. Jim Storer was forced out of that position by a majority of the selectmen. Without a city administrator, Patterson said that he was assisted by City Recreation Director Joseph Parker, CFO Mary Adams, the city clerk and other officials in the performance of city administrator duties, including the review of invoices. Horn shifted his questioning of Patterson to the June 9, 2009 amendments. Patterson said that he believes those amendments are illegal and improper. “They are not valid.” Patterson read out loud amendment #3 “…duties of the mayor are repealed in its entirety,” with amendment #5 that said “all employees shall be supervised by the city administrator.” Before these amendments were adopted by 4 selectmen, Patterson said the city “charter and ordinances that I swore an oath to on inaugural day stated that the mayor shall supervise all employees and the mayor shall advise and recommend the city administrator.” “Dowdy is not the legal city attorney. Lockley was not properly placed by the city as the city administrator,” He said. “Any employee that was brought in after the adoption of those amendments, I believe to be illegal placements. Anyone hired under city administrator Lockley, I believe are illegal hires.” Patterson testified that during the August 25, 2009 city board meeting, he announced that he was removing all of his signatures because he no longer has supervisory control or authority over any employee, according to the June 9, 2009 amendments. Horn said, “When you made that announcement, you effectively shut the city down. How would people get paid?” Patterson responded, “The city would have to find another legal way to have bills paid because my authority to supervise had been withdrawn. They did not want to listen when I told them their actions were illegal—and that they were not the supervisors—not the mayor.” He told Horn, “You started the problem when you wrote those amendments to take away the mayor’s power. I gave the selectmen notice, beginning on the day that they passed those ordinances, up until August 25.” When questioned by his attorney, Rhodes, Patterson said that he did not receive a notice before 2pm about a special called meeting on August 26, 2009. “I was in the jurisdiction of McComb between 11am and 2pm. I could not attend because I did not know about it.” When asked about the questions Horn raised about any dealings he had with the 3 firms involved with the bond project, Patterson said, “I did not intentionally violate the law with any dealings with the Malachi Group and related firms. I don’t know of any violations.” Patterson also testified that the June 9, 2009 amendments were a violation of the city ordinance which states that the city attorney shall prepare all documents. Patterson said that he protested because the city attorney position was vacant at that time. “The amendment was not unanimously approved—the vote was 4 to 2 with Johnson and Smith voting against it.” He said that the amendment said that the “duties of the mayor are expressly repealed in its entirety.” The amendment did not give any authority to the mayor, but he must still reside over regular meetings. “I believe that my duties were repealed by the amendment, except for the duty to reside over meetings,” Patterson offered as his concluding statement. Jeanette Butler, City Clerk and a 32 year employee of the City of McComb testified next, saying she was the custodian of the records for the City of McComb. The first portion of her testimony related to questions about the 3 firms that worked on the bond projects. Butler said that she had never seen a scope of engagement or contract and invoice for Chambers and Gaylor and the Malachi Group. She said that the schedule of payment report is used to pay the bills and was prepared by CFO Adams. Under cross examination by Rhodes, she agreed that the majority of the board selectmen approved and she attested that the city board approved payment of accounts payable for each of the 3 firms. She said, “The board of Mayor and Selectmen did not do anything wrong.” The rest of her testimony related to the August 26, 2009 special called meeting. She said that the direct deposit memo for city employees’ direct deposit payments had not been signed the night before by the CFO. The mayor had stated that day he would no longer sign any checks. She said that the only signatures that were allowed were the Mayor, CFO and former city administrator Jim Storer. At the special called meeting, her signature was added to the signature cards, along with selectmen Lamb, Maddox, Smith, Nobles, and Esch. Those 5 selectmen were also added to the electronic signature. Butler told Rhodes that the mayor did object to the June 9, 2009 amendments to the ordinances when they were approved. She acknowledged that the city board never passed a resolution authorizing them to sign checks between June 9 and August 25, and they had not brought a mandamus action against the mayor to force him to sign checks. Butler said that both she and Lockley spoke to representatives from First Bank before 11am to ask them to attend the special call meeting on August 26. She said that she attested the notice of the special call meeting prior to the 11:15am time signed by the police officer who delivered the notice to city board members. She said that First Bank brought signature cards to the special called meeting and they were the first ones called—they were called before members of the city board were called. The mayor and city administrator’s executive assistant and deputy city clerk, Sherry Spears testified next. She said she could not give a reason why the mayor’s name was not included in the August 26, 2009 special called meeting notice. She said that she delivered the meeting form to Nobles at his place of business to sign around 9:30am. She said she took the form to Maddox’s home to sign between 9:30am and 9:45am. She said that she tried to call everyone, including the mayor around 10am. She said she could not reach the mayor or selectman Johnson. She said she called the office of the police around 11am and an officer came to her office around 11:05am. Spears said that she had been trained that there must be a 3 hour notice given for special called meetings. She said Butler and former city administrator Sam Mims trained her how to prepare and handle special called meeting notices. “The practice was 3 hours and a written notice is required. I used a letter form that’s been used forever.” Spears said the police officer returned the notice to her after he had completed serving notices at 2pm. Accounts Payable Deputy City Clerk Stephanie Forrest testified next about payments made to the 3 firms that Horn had raised questions about. She confirmed that all payments were made from board approved claims dockets, except two checks that she said were not approved. She said that the CFO had her prepare two manual checks. After Forrest concluded her testimony, city administrator Lockley returned to the witness stand. He said that during the time period he served as selectmen (from 1985 until 1991), the mayor would verbally notify them and the deputy clerk would give them a written notice for all special called meetings. Under cross examination by Rhodes, Lockley said the August 26, 2009 special called meeting notice was signed by Maddox and Nobles on August 26. He said that Butler told him the practice for calling a special meeting was a phone call and a 3 hour prior notice. When asked who approached him about becoming the city administrator last year, he said, “Nobles and Esch, they asked me if I would be interested in the position.” Lockley said they talked to him separately about it “a week or so” before they offered him the position. He said that he was not told whether the position had been posted so that others could apply for the position. When asked how he learned about the August 26, 2009 meeting, he said he had to tell his story his way. “From a meeting that day at 8:30am—with Vicki Webb and Larry Dorr of First Bank and Butler and LaHouma Isaac. I called the meeting.” “Mr. Dorr came over and asked how he could help move things forward. I was in the process of calling key employees to my office to deal with the problem at 8:30am when Dorr showed up. He then had Webb to come. The meeting lasted 15 minutes. I also had city attorney Wayne Dowdy on the phone participating in the meeting.” “I told them in the meeting that we had to come up with a way to pay the checks. I decided we needed to have a special called meeting.” Lockley continued, “Vicki Webb job was to find out what the bank required from the city. Butler responsibility was to make sure that all procedures followed the protocol for special called meetings. Isaac, who is the payroll clerk, had to make sure all payroll items were ready.” Lockley said that the standard practice when he was selectman was only the mayor called special meetings. But, Lockley said that he did not call the mayor to this meeting “because the mayor caused the problem.” He also said that he believes the June 9, 2009 amendments revoked the mayor’s duties as it related to employees, but the amendments did not change the board’s powers and duties. Selectman Nobles was called back to the witness stand to confirm that heard the mayor said that the 3 firms had completed their work and the board should pay them. He said, after that, he voted to pay them. The last witness called to testify was Selectman Esch. He said, “The mayor said the work has been done; now we need to pay them.” On cross examination from Rhodes, he asked Esch did he normally receive an agenda packet before each meeting. Esch said, “Yes, normally we pick it up on Fridays, before the meeting the following week.” When Horn asked Esch if he ever had a problem with the mayor over his residency, Esch said yes. He talked about the special hearing that was held, presided by the mayor. He said the board voted 3-2 that his residency was in McComb. Rhodes asked him where he filed his homestead exemption. “In McComb, Mississippi,” said Esch. “Where did your wife file her homestead exemption,” Rhodes asked. “In Louisiana.” “Do you and your wife live together?” “We’ve live together for over 40 years.” That ended the testimony part of the trial until March 26, if Dowdy is allowed to testify.