Judge hears motion in Jones suit
Published 3:00 am Saturday, February 13, 2016
A suit seeking to nullify the recent appointment of a fire chief in Troy should be dismissed because the complaint wasn’t verified, among other issues, attorneys said Friday.
Circuit Judge Shannon Clark heard arguments by defense attorneys seeking to dismiss the suit filed by Fire Marshall Willie Jones. One of four internal candidates for the position, Jones filed suit on Jan. 21, citing violations of the Open Meetings Act and an illegal committee meeting prior to the selection process.
On Friday, Ranier Cotter III and other attorneys representing the defendants argued Jones’ complaint wasn’t verified when filed. “This is a very important technicality,” Cotter said. “The Alabama Supreme Court … is clear and unambiguous about verification.”
He said the Legislature has chosen only certain statutes for the verification standard, and the Open Meetings Act is one of them. “The Legislature has chosen to put special emphasis on cases brought under this act, that they must be verified,” Cotter said.
He went on to say that Jones’ did not provide verification of the alleged violation during his original complaint and, since the 21-day window for filing suit has passed, the complaint should be dismissed.
“And even if you were to find the verification issue is not valid … the complaint says the meeting where the Fire Chief was actually appointed was a properly posted meeting,” Cotter said. “You can’t invalidate the act because where it occurred was (in) a meeting that was properly noticed.”
Finally, defense attorneys questioned the plaintiff’s standing for filing the suit. “How can he have the standing to say ‘I’m injured’ if he says the meeting was legal? The challenged action is admitted by the plaintiff to be held in a properly noticed meeting.”
Cotter also referenced a “3 a.m. filing” by Jones’ attorney, Eric Hutchins, in which Hutchins sought leave to amend the complaint. “He doesn’t have leave to amend the complaint … it’s not verified.”
In urging a quick decision on the motion to dismiss, Cotter told the judge that the defendants believe these allegations to be serious. “This is a very important to case to the people who have been sued,” he said. “The four council members named are a harmonious group and want to move the city forward … We ask your honor to consider this very important issue …and to allow the city to get back on track. The fire department doesn’t need to be bogged down in some sort of suit that has no merit whatsoever.”
District 5 Councilwoman Dejerilyn King Henderson was the only council member not cited in the original complaint because Hutchins said she was omitted because she abstained from the vote to appoint the fire chief and because she too is a victim of the city’s violations of the Open Meetings Act. “This injury is ongoing,” he said. “The counsel, by filing this motion, had to have some sort of communication with the defendants in this case and that means the City of Troy.”
But, he said, Henderson was not included in that communication or meeting and that also would be a violation of the Open Meetings Act. “I represent her and we’re going to file something in federal court to get injunctive relief to allow her to participate in the deliberative process,” Hutchins said. “I feel very confident that by Monday or Tuesday there will be an injunction in federal court that says she has to be a part of the process.”
Hutchins told the judge that she has the ability to allow him to amend the original complaint, even if the 21-day window after the original act has passed. “Part of the reason (Mr. Jones) is here is because he doesn’t like the old way of doing business in the City of Troy,” Hutchins said. “You tell me what I need to do and I’ll amend it. My client’s reputation is on the line.”
In responding to Hutchins comments, Cotter pointed out that Henderson is not a party in the suit before the court, even though she has publicly supported the effort. “When a council person stands on the courthouse steps with Mr. Hutchins and says ‘I’m with you,’ I’m not going to disclose attorney-client privilege information.”
In responding to the attorneys, Clark said the issue at hand is not a political one. “This is by no means a political process. I am bound by the law and wat to clarify on my end what my role is,” she said. My part in this is not political in nature.”
Clark said she would take the motion and arguments under advisement and issue her ruling “as soon as I can, after I’ve applied the rule of law to what you have provided me.”
After the trial, Hutchins said while his initial complaint may not have been “my best work” it was filed under an emergency basis, but he plans to continue to pursue legal action to rectify the original issue. “We’re trying to ensure the process is open to the public and transparent.”
And Jones, who filed the original complaint, said he was upset by comments regarding politics. “I just don’t understand how they feel it’s not about me,” he said. “It is about me. It’s about the process I had to go through, about them changing the qualifications on me and about not taking into account my 35 years (with the fire department).”
Clark did not indicate when she would issue her ruling.