IN THE CIRCUIT COURT OF WILCOX COUNTY ALABAMA
IMPACT GROUP OF WILCOX
COUNTY, INC.,
Plaintiff,
v. CASE# CV 2014-
MICHAEL SAULSBERRY, WILLIAM
ALBRITTON, JOHN MOTON, JR.,
RICKY POWELL, REGINALD
SOUTHALL, REGINALD
WEATHERLY, each both
individually and in his official
capacity as Wilcox County
Commissioner, CLIFFORD TWILLEY,
and FICTITIOUS DEFENDANTS A
THROUGH H,
Defendants.
.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
1. This is an action to compel certain actions and for recovery of public funds.
2. Wilcox County is one of the poorest counties in the United States of America and is suffering from a financial crisis.
3. An audit for fiscal year 2012 was conducted and recently completed by the Alabama Department of Examiners of Public Accounts.
4. The findings of said audit were filed on February 7, 2014 in “Report on Wilcox County Commission”, hereinafter referred to as “the audit”.
5. This complaint incorporates said audit into and as part of this complaint and is listed as Exhibit 1.
JURISDICTION AND VENUE
6. This is an action arising under various sections of the Code of Alabama (1975).
7. Venue is proper in Wilcox County Circuit Court pursuant to Ala. Code § 6-3-2(b)(3).
PARTIES
8. Plaintiff IMPACT is a non-profit corporation organized under the laws of the state of Alabama. IMPACT is an organization that, among other things, provides information to residents and voters of Wilcox County Alabama in order to assist them in making informed choices when exercising their right to vote for and elect local officials.
9. Defendants Michael Saulsberry, William Albritton, John Moton, Jr., Ricky Powell, Reginald Weatherly, and Reginald Southall are the Commissioners for Wilcox County Alabama and will hereinafter be referred to collectively as “the Commission”. Defendant Clifford Twilley is a resident of Wilcox County, Alabama. Each Defendant resides in his/her official capacity in Wilcox County. The action this lawsuit seeks to compel will take place in Wilcox County.
STATEMENT OF FACTS
10. The audit contained the following findings:
A. 2012-01 Finding
The Commission receives funds appropriated by the County Government Improvement Act, Title 11, Chapter 29, Code of Alabama 1975. These funds
are required to be accounted for in a Special Capital Improvement Fund and expended for certain capital improvement purposes outlined in the Code of
Alabama 1975, Section 11-29-6. During the audit period, $153,700 was transferred from the Special Capital Improvement Fund to the Gasoline Tax
Fund to cover payroll expenses which are not included in allowable expenditures from Capital Improvement funds.
Recommendation:
The Commission should expend Special Capital Improvement fund in compliance with the Code of Alabama 1975, Section 11-29-6
B. 2012-03 Finding
The Code of Alabama 1975, Section 36-25-5(a), states no public official shall use his official position or office to obtain personal gain for himself.
Furthermore, this section states personal gain is achieved when the public
official receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain. Three of the six county commissioners (Districts 1, 3 and 4) received water service and garbage pickup through Wilcox County, which is under the direct control of the Wilcox County Commission members. The Water System Fund and the Solid Waste Fund account for the financial information of the County’s water and garbage activities. Based upon a review of the billing information for the three commissioners being serviced by the water and garbage department, it was noted that Commissioners for Districts 3 and 4 did not make a single payment on their bills during fiscal year 2012 and the District 1 Commissioner only made two payments during fiscal year 2012. Furthermore, after reviewing the disconnect lists for months within the audit period, it was noted that these Commissioners’ names appeared on the disconnect list, but they were never disconnected and continued to receive water service and garbage pickup. As of September 30, 2012, account balances for Commissioners District 1, District 3, and District 4 were $1,855.00, $493.16, and $1,574.52, respectively. Furthermore, District 3 Commissioner had an additional inactive account with an outstanding balance of $763.53. A review of the minutes and other financial activity of the Water System Fund indicated the Commission was under contract with a private company to manage the water system (including billing for garbage pickup). The minutes also reflected a concerted effort to cut off customers for nonpayment and expedite collection of past due amounts. Regular customers of the county were expected to make regular payment on their water and garbage and water, have past due amounts added to their bills if not paid timely, been pursued for payment delinquency for garbage collection, and faced service for cut-off of water service. These three commissioners appeared to have achieved personal gain as public officials in water service and garbage collection without following the same protocol as ordinary customers.
Recommendation:
The commissioners should adhere to the same policies and procedures that apply to ordinary customers of the water and garbage system.
C. 2012-05 Finding
The Code of Alabama Section 11-8-10 states that “no warrant or order for the payment of money shall be issued in pursuance of authority of the county commission until funds are available for its payment upon presentation to the treasurer of depository.” On numerous occasions, the General Fund, Gasoline Tax Fund, Road and Bridge Fund and Water System Fund had deficit cash balances.
Recommendation:
Checks should not be issued until funds are available for payment.
D. 2011-01 Finding
A good system of internal controls should include policies and procedures
to ensure the Commission pays only fair and reasonable prices for real
property acquired. The Commission purchased an acre of land for $8,500 in
February 2012. Per review of the minutes and discussion with the County
Administrator, the Commission did not have the property appraised before the purchase and could not provide an explanation as to how they determined this was a fair and reasonable price for the land.
Recommendation:
The Commission should document through an appraisal or by other means that purchases of real property are made at fair and reasonable prices.
D. 2008-02 Finding
The Wilcox County Commission issued General Obligation Warrants,
Series 2008 dated March 1, 2008 and General Obligation Warrants, Series 2012 dated January 10, 2012. According to the Official Statements, the purpose of the warrants being issued was to advance refund a portion of the County’s General Obligation Warrants, and to construct various capital improvement projects in the County. In addition, the County obtained a letter from the bond issue counsel that described the appropriate uses of the proceeds received from the 2008 General Obligation Warrants. The attorney’s letter referenced the related bond documents and requirements of the Internal Revenue Code stating that the proceeds were to be used for capital improvements that have a long useful life. In testing the expenditures recorded in the 2008 and 2012 General Obligation Construction Funds, it was noted that the proceeds were used for purchase of road maintenance materials, general repairs, and other items not having a long useful life. The use of the proceeds did not appear to comply with the provisions outlined in the related bond documents.
Recommendation:
The Commission should comply with the provisions in the bond documents for the General Obligation Warrants, Series 2008 and Series 2012, for the use of the proceeds derived from the issuance.
E. Unresolved Prior FIndings
i. 2011-01 relates to the Commission purchasing real property without first obtaining an appraisal or documenting that it determined that a fair and reasonable price was being paid for the property.
ii. 2008-02 relates to the Commission’s failure to comply with the provisions for uses of the 2008 General Obligation Warrants proceeds. Problems were found with the Commission’s internal controls over financial reporting and they are summarized below:
iii. 2012-02 relates to the Commission not following policies and procedures in handling delinquent customers for the Water System Fund.
iv. 2012-04 relates to payment plans not being properly set up for the Solid Waste Fund and Water System Fund.
v. 2005-01 relates to the lack of a detailed separate listing of accounts receivable for the Solid Waste Fund and the Water System Fund.
vi. 2004-02 relates to the lack of segregation of duties within the Solid Waste and Water System functions.
11. The land purchases referenced in the audit were of land believed to be owned by Clifford Twilley.
12. The Commission unlawfully appointed Clifford to an elected position of Tax Commissioner, which had been unlawfully created.
13. Mr. Twilley did not have an office or a job description, nor did he perform any work as part of that position.
14. Mr. Twilley was not required to complete a time record, nor follow the same procedures as other county employees and officials in order to receive his salary.
WHEREFORE, Plaintiff prays that this Honorable Court grant the following relief:
(A) Declare Defendants’ actions to be unlawful;
(B) Order Defendants to pay restitution plus interest for all public funds that were misused to Wilcox County;
(C) Order Defendant Clifford Twilley to repay the amount he received acting as the aforementioned public official, to include the value of all employment benefits plus interest;
(D) Award Plaintiff its costs and reasonable attorney’s fees;
(E) Grant Plaintiff such other relief, including punitive damages, as the Court deems necessary and just.
Respectfully submitted this the 1st day of April, 2014,
Edward F. Tracy (TRA031)
Attorney for Plaintiff
Of Counsel:
Southern Legal Group, P.C.
5935 County Road 2
Pine Apple, Alabama 36768
telephone 334-787-9119
edward.tracy@southernlegalgroup.com
IMPACT GROUP OF WILCOX
COUNTY, INC.,
Plaintiff,
v. CASE# CV 2014-
MICHAEL SAULSBERRY, WILLIAM
ALBRITTON, JOHN MOTON, JR.,
RICKY POWELL, REGINALD
SOUTHALL, REGINALD
WEATHERLY, each both
individually and in his official
capacity as Wilcox County
Commissioner, CLIFFORD TWILLEY,
and FICTITIOUS DEFENDANTS A
THROUGH H,
Defendants.
.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
1. This is an action to compel certain actions and for recovery of public funds.
2. Wilcox County is one of the poorest counties in the United States of America and is suffering from a financial crisis.
3. An audit for fiscal year 2012 was conducted and recently completed by the Alabama Department of Examiners of Public Accounts.
4. The findings of said audit were filed on February 7, 2014 in “Report on Wilcox County Commission”, hereinafter referred to as “the audit”.
5. This complaint incorporates said audit into and as part of this complaint and is listed as Exhibit 1.
JURISDICTION AND VENUE
6. This is an action arising under various sections of the Code of Alabama (1975).
7. Venue is proper in Wilcox County Circuit Court pursuant to Ala. Code § 6-3-2(b)(3).
PARTIES
8. Plaintiff IMPACT is a non-profit corporation organized under the laws of the state of Alabama. IMPACT is an organization that, among other things, provides information to residents and voters of Wilcox County Alabama in order to assist them in making informed choices when exercising their right to vote for and elect local officials.
9. Defendants Michael Saulsberry, William Albritton, John Moton, Jr., Ricky Powell, Reginald Weatherly, and Reginald Southall are the Commissioners for Wilcox County Alabama and will hereinafter be referred to collectively as “the Commission”. Defendant Clifford Twilley is a resident of Wilcox County, Alabama. Each Defendant resides in his/her official capacity in Wilcox County. The action this lawsuit seeks to compel will take place in Wilcox County.
STATEMENT OF FACTS
10. The audit contained the following findings:
A. 2012-01 Finding
The Commission receives funds appropriated by the County Government Improvement Act, Title 11, Chapter 29, Code of Alabama 1975. These funds
are required to be accounted for in a Special Capital Improvement Fund and expended for certain capital improvement purposes outlined in the Code of
Alabama 1975, Section 11-29-6. During the audit period, $153,700 was transferred from the Special Capital Improvement Fund to the Gasoline Tax
Fund to cover payroll expenses which are not included in allowable expenditures from Capital Improvement funds.
Recommendation:
The Commission should expend Special Capital Improvement fund in compliance with the Code of Alabama 1975, Section 11-29-6
B. 2012-03 Finding
The Code of Alabama 1975, Section 36-25-5(a), states no public official shall use his official position or office to obtain personal gain for himself.
Furthermore, this section states personal gain is achieved when the public
official receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain. Three of the six county commissioners (Districts 1, 3 and 4) received water service and garbage pickup through Wilcox County, which is under the direct control of the Wilcox County Commission members. The Water System Fund and the Solid Waste Fund account for the financial information of the County’s water and garbage activities. Based upon a review of the billing information for the three commissioners being serviced by the water and garbage department, it was noted that Commissioners for Districts 3 and 4 did not make a single payment on their bills during fiscal year 2012 and the District 1 Commissioner only made two payments during fiscal year 2012. Furthermore, after reviewing the disconnect lists for months within the audit period, it was noted that these Commissioners’ names appeared on the disconnect list, but they were never disconnected and continued to receive water service and garbage pickup. As of September 30, 2012, account balances for Commissioners District 1, District 3, and District 4 were $1,855.00, $493.16, and $1,574.52, respectively. Furthermore, District 3 Commissioner had an additional inactive account with an outstanding balance of $763.53. A review of the minutes and other financial activity of the Water System Fund indicated the Commission was under contract with a private company to manage the water system (including billing for garbage pickup). The minutes also reflected a concerted effort to cut off customers for nonpayment and expedite collection of past due amounts. Regular customers of the county were expected to make regular payment on their water and garbage and water, have past due amounts added to their bills if not paid timely, been pursued for payment delinquency for garbage collection, and faced service for cut-off of water service. These three commissioners appeared to have achieved personal gain as public officials in water service and garbage collection without following the same protocol as ordinary customers.
Recommendation:
The commissioners should adhere to the same policies and procedures that apply to ordinary customers of the water and garbage system.
C. 2012-05 Finding
The Code of Alabama Section 11-8-10 states that “no warrant or order for the payment of money shall be issued in pursuance of authority of the county commission until funds are available for its payment upon presentation to the treasurer of depository.” On numerous occasions, the General Fund, Gasoline Tax Fund, Road and Bridge Fund and Water System Fund had deficit cash balances.
Recommendation:
Checks should not be issued until funds are available for payment.
D. 2011-01 Finding
A good system of internal controls should include policies and procedures
to ensure the Commission pays only fair and reasonable prices for real
property acquired. The Commission purchased an acre of land for $8,500 in
February 2012. Per review of the minutes and discussion with the County
Administrator, the Commission did not have the property appraised before the purchase and could not provide an explanation as to how they determined this was a fair and reasonable price for the land.
Recommendation:
The Commission should document through an appraisal or by other means that purchases of real property are made at fair and reasonable prices.
D. 2008-02 Finding
The Wilcox County Commission issued General Obligation Warrants,
Series 2008 dated March 1, 2008 and General Obligation Warrants, Series 2012 dated January 10, 2012. According to the Official Statements, the purpose of the warrants being issued was to advance refund a portion of the County’s General Obligation Warrants, and to construct various capital improvement projects in the County. In addition, the County obtained a letter from the bond issue counsel that described the appropriate uses of the proceeds received from the 2008 General Obligation Warrants. The attorney’s letter referenced the related bond documents and requirements of the Internal Revenue Code stating that the proceeds were to be used for capital improvements that have a long useful life. In testing the expenditures recorded in the 2008 and 2012 General Obligation Construction Funds, it was noted that the proceeds were used for purchase of road maintenance materials, general repairs, and other items not having a long useful life. The use of the proceeds did not appear to comply with the provisions outlined in the related bond documents.
Recommendation:
The Commission should comply with the provisions in the bond documents for the General Obligation Warrants, Series 2008 and Series 2012, for the use of the proceeds derived from the issuance.
E. Unresolved Prior FIndings
i. 2011-01 relates to the Commission purchasing real property without first obtaining an appraisal or documenting that it determined that a fair and reasonable price was being paid for the property.
ii. 2008-02 relates to the Commission’s failure to comply with the provisions for uses of the 2008 General Obligation Warrants proceeds. Problems were found with the Commission’s internal controls over financial reporting and they are summarized below:
iii. 2012-02 relates to the Commission not following policies and procedures in handling delinquent customers for the Water System Fund.
iv. 2012-04 relates to payment plans not being properly set up for the Solid Waste Fund and Water System Fund.
v. 2005-01 relates to the lack of a detailed separate listing of accounts receivable for the Solid Waste Fund and the Water System Fund.
vi. 2004-02 relates to the lack of segregation of duties within the Solid Waste and Water System functions.
11. The land purchases referenced in the audit were of land believed to be owned by Clifford Twilley.
12. The Commission unlawfully appointed Clifford to an elected position of Tax Commissioner, which had been unlawfully created.
13. Mr. Twilley did not have an office or a job description, nor did he perform any work as part of that position.
14. Mr. Twilley was not required to complete a time record, nor follow the same procedures as other county employees and officials in order to receive his salary.
WHEREFORE, Plaintiff prays that this Honorable Court grant the following relief:
(A) Declare Defendants’ actions to be unlawful;
(B) Order Defendants to pay restitution plus interest for all public funds that were misused to Wilcox County;
(C) Order Defendant Clifford Twilley to repay the amount he received acting as the aforementioned public official, to include the value of all employment benefits plus interest;
(D) Award Plaintiff its costs and reasonable attorney’s fees;
(E) Grant Plaintiff such other relief, including punitive damages, as the Court deems necessary and just.
Respectfully submitted this the 1st day of April, 2014,
Edward F. Tracy (TRA031)
Attorney for Plaintiff
Of Counsel:
Southern Legal Group, P.C.
5935 County Road 2
Pine Apple, Alabama 36768
telephone 334-787-9119
edward.tracy@southernlegalgroup.com
