Utility may flip-flop on lawyer's bill

Friday, October 3, 2008

By Clint Confehr

Senior Staff Writer

Marshall County's Board of Public Utilities has voted to pay lawyer fees for its member whose ethics case was dismissed last month by the County Ethics Committee.

The utility board's decision last month attracted attention from residents and county officials. They've criticized it largely because board member Mike Waggoner voted for the payment and seconded the motion to pay Nashville-based attorney Don Scholes to defend him at Ethics Committee meetings.

Meanwhile, Waggoner has negotiated a reduction in Scholes' fee and some officials say the Board might rescind its vote to publicly fund the defense bill. That would leave it as a debt for Waggoner. The amount is now less than $3,000, according one source.

Compounding negative reaction to the Board's vote is the fact that Scholes is not the utility's regular lawyer.

Waggoner was former County Commission Chairman Sam Smith's real estate agent when Smith sold an option to buy farmland to Waste Management Inc. It wanted to develop a landfill along Pulaski Highway at Cornersville. Smith left the utility board when he resigned from the Commission to avoid a conflict of interest.

"I'm glad I was vindicated," Waggoner said Tuesday about the Ethics Committee vote to accept Scholes' point that as a member of the Board of Public Utilities, Waggoner has no influence over County Commission decisions on landfill issues, so there could be no conflict of interest.

People serving on public panels, many of which are unpaid or poorly compensated, should have legal counsel available from the boards they serve, Waggoner said while discussing his vote and the situation. Otherwise, people would be very reluctant to serve, he said.

Opposition against public payment to a litigator before a case goes beyond the Ethics Committee came with various reasons from several officials and the president of the Tri-County Environmental Association, Kathy Fox, who's encouraged her associates to go to a special called meeting of the utilities board at 9 a.m. on Wednesday at 624 West Commerce St.

"It's setting a bad precedent," said County Commission Chairwoman Mary Ann Neill who, because of that position, is on the water board; she succeeded Smith.

See Utility (This is 12 inches)

"If we pay one, we'd have to pay for representation for the other," Neill said. "As badly as we need water lines, we shouldn't pay attorney's fees."

Asked why anyone would serve on such a board if they would be without legal counsel from the board, Neill said, "You have to serve to a higher standard and not open yourself to something like this."

Neill emphasized that she was not "dogging," or persecuting Waggoner with remarks for publication, but acknowledged that in her position, she's at the crossroads of both ethics cases.

"It's not Mike I'm voting against," she said. "It's the situation."

Neill wants to amicably serve on the utility board with Waggoner, she said. Yet, she must take positions as an official who succeeded Smith and is chairwoman of the Ethics Committee.

Attempts were made, without success, to reach Utilities Board Chairman Rocky Bowden and Scholes so their accounts of the vote and bill could be aired.

Records sought

Two employees of the Board of Public Utilities were asked for the minutes of the Sept. 17 Board meeting when the vote to pay Scholes was conducted. The minutes haven't been prepared. They're written from a tape recording of the meeting. The audio-cassette tape was locked in a cabinet Wednesday and the person with access to the cabinet was unavailable until Thursday.

Fox previously asked to listen to the tape, but was denied last month, she said. Rick Hollow, a Knoxville-based attorney on retainer with the Tennessee Press Association, cited state law saying the tape is a public record that's to be available for review during regular business hours. Cecilia Spivy, the utility's lawyer, said she expected the public record would be available Friday with minutes of the Sept. 17 meeting.

However, the chairwoman of the County Commission provided an account of the chain of events at the utility's meeting and they were confirmed by another official.

"We received a fax copy of a letter from Don Scholes stating that since the (ethics) case was dismissed, it would be appropriate for the Marshall County Board of Public Utilities to reimburse Mike Waggoner for his attorney fees," Neill said.

She recalls the original dollar amount of the bill as more than $3,000.

Vote prompted

"In response to the fax, a motion was made by Bill Blalock to pay Scholes for his legal services for Waggoner," Neill said. "Waggoner seconded the motion."

Bowden, the chairman of the utility board voted with Blalock and Waggoner, Neill reported. Neill voted no. Joe B. Brandon, who has since resigned from the County Commission and is therefore no longer on the utility board, abstained.

I had some misgivings about paying the bill, " Brandon said. "But I also had some concerns that there might be an incident in the future where we did need legal representation.

"I didn't think it was clear cut one way or another, so I felt my abstention was the best approach to take," Brandon said Wednesday.

He's "not really" been aware of the controversy over the vote since he's no longer in public office and there's no reason for anybody to contact him.


Two people, complaining anonymously by telephone, indicated they thought Waggoner should have abstained because he was voting for himself.

Two key leaders of the county were asked about the vote before this week's meeting of the Marshall County Solid Waste Committee. It continues to deal with issues surrounding the pending closure of Cedar Ridge Landfill, which would have been replaced by a landfill at Cornersville.

"Personally, I feel it was appropriate to do that," County Mayor Joe Boyd Liggett said of the utility board's vote to pay for Waggoner's lawyer.

Waggoner could have been represented by Spivy, he said.

Commissioner Don Ledford, chairman of the Solid Waste Committee, said, "The problem I have with this issue is if they were to discuss it, he should have recused himself and not even been in the room.

"We go to great lengths to read a conflict of interest statement," Ledford said of a requirement for commissioners to declare, for example, that they work for the county and should say so when they vote on the budget that affects their salary.

Ledford also noted that the county has errors and omissions insurance that helps protect the county from losses if mistakes are made and can be addressed under terms of the policy.

However, if a public official knew they were doing something wrong, "then it's fraudulent intent," Ledford said. Then the remedy is the criminal court system, he said.

Lawyer sought

Neill said she wants it known that Waggoner did not first contact Scholes for legal representation.

"It is my understanding that Mr. Scholes was contacted due to Mr. Waggoner being named as a respondent in an ethics complaint filed against him for actions that could have been associated with his being a (county utility) board member," Neill said.

"I personally think Mike Waggoner is a good person who was caught up in a bad situation," Neill said.

Waggoner said the motion for the Board to pay Scholes included a directive for him to ask Scholes to reduce the bill.

Waggoner also said Wednesday that he believes at the next regularly scheduled utility board meeting there's going to be a move to rescind the motion to pay Scholes.

"I understood that we would rescind the motion and I would pay it," Waggoner said, "but he did a dad-gummed good job.

"You never know when you get in this kind of situation who's making the allegations and public servants need to have the county cover their back," he said.

Waggoner said he "knew it was a personal interest thing" for Scholes, since the ethics case was one of a very few cases arising from a state law that arose from the FBI Tennessee Waltz Sting at the General Assembly.

Public service

"But what bothered me was that you see so many commissioners resigning," Waggoner said. "It's hard to find people who will serve when they have to work" a full time job.

He seconded the motion for public payment for his own defense because he felt it was important "because if people are going to serve in these positions -- volunteer basically, then we need to know that the county has our back in frivolous accusations."

"It's unfortunate that all this went down," Waggoner said, regretting ay impact on his family and reputation suffering from innuendo, theory and hypothesis. "This was tough for may family and me; just because my name was there. I would never do anything wrong on purpose. My whole business is based on integrity.

"None of this made sense," he said, "especially after Waste Management withdrew its application."

Without direct information about what happened, suspicions have apparently grown and so the Tri-County Environmental Association president has provided what she's been told to her friends.

Tri-County interest

"We are questioning whether or not (the utility) can pay Mr. Waggoner's attorney fees when he was not acting as a member of the BPU," Fox said.

Waggoner's role in the landfill controversy was as a Realtor, providing professional services so his client, Smith, could sell a purchase option to Waste Management.

Fox wasn't able to judge how many people might go to the utility board meeting on Wednesday; she'd not received replies from her e-mail reporting what she'd been told.

"It's during the middle of the day when people are working," she said of the meeting time. "People can't get away at that time."

Asked if she or others with her organization had considered litigation to get access to the recording of the meeting, Fox replied, "Not at this point. My personal opinion is that the tape is the tape and it should not need official approval" for public access.

Utility spokeswoman Gayle Shaneyfelt on Wednesday said minutes of the meeting weren't public record until they're approved. Spivey said they hadn't been typed. Shaneyfelt indicated she understood the utility's counsel said the tape was also subject to board approval before release. The Tennessee Press Association lawyer says otherwise.

What's next

Wednesday's meeting, however, probably won't include action on the resolution on the lawyer's bill.

"Wednesday is for lateral positioning of employees," Neill said of personnel issues to be addressed by the Board. The motion to rescind won't be until Oct. 21 at 9 a.m."

The issue, however, may well become part of discussion at the Ethics Committee workshop, a non-voting session on Monday at 6 p.m. in the Courthouse Annex on Lewisburg's public square.