“I am giving up the battle, but I’m not giving up the war.”
The April 3 meeting of the Caledonia Board of Aldermen was action-packed, dealing with the hire of a maintenance employee, a potential Subway restaurant going in at the gin site, the continuing conflict over beer sales and property damage allegedly inflicted by the Water Department, and the possible hiring of a park director.
For the second month in a row the meeting was so heavily attended that it had to be moved into the community center.
Maintenance employee hire
The board hired Lawrence Darnell to work as a town maintenance employee, in spite of objections from a local woman.
Mayor George Gerhart recommended that the board hire Lawrence Darnell, who is related to Alderman Bill Darnell by blood and to Alderman Steve Honnoll by marriage.
“Were there any other applicants?” asked Alderman Mike Savage.
Gerhart said there were six applicants for the position. He distributed copies of the applications for the board members to review. [It was obvious that this was the first time the aldermen had seen them. – Brian Jones] Parham made a motion to hire Lawrence Darnell, and was seconded by Bill Darnell.
“Mr. Mayor, can I say something?” asked Michelle Cox, who was in the audience.
“No,” Gerhart said, and called for a vote.
The motion passed 4-1, with Savage voting no.
The board moved on to the next agenda item, but then returned to the hiring because Savage’s no vote wasn’t acknowledged.
“Mr. Mayor, there are two who need to recuse themselves,” Cox said.
“We can do without the remarks from the audience,” Gerhart said.
“I understand I’m out of order,” Cox said.
“Bill, would you and Steve like to recuse yourselves?” Gerhart asked.
“Do we have to, Jeff?” Darnell asked the board attorney. “I will.”
“I think what they’re talking about is nepotism,” responded Town Attorney Jeff Smith. “That applies to three specific audiences in the town, and the maintenance employee isn’t one of them. So the answer is you don’t have to recuse yourself if you don’t want to.”
“If you don’t, there is a nepotism possibility,” Gerhart said. “But if you want to sit in here, fine. Whatever you want to do.”
“We went through this last year, and the Ethics Commission said there was nothing wrong with it,” Darnell said.
“Except that there might be a possibility of nepotism, and the only way you’ll get that is if someone files a complaint on you,” Gerhart said. “I don’t think that’s happened yet.”
Chan Patel of Houston asked to buy a lot at the gin site property. He said that he wants to open a Subway restaurant there. He said he owns a Subway and a hotel in Houston.
The property is about four-tenths of an acre, and has a price of $4,500.
Patel said that his proposal has already been approved by Subway.
The board voted unanimously to give Patel a six-month option on the property.
Jeff Doty announced that he will not be opening Cal-City Grocery due to the town’s resistance to beer sales. He also complained about a “threatening” letter he received from Smith.
Jeff Doty, who planned to reopen the Cal City Grocery, came before the board at their Feb. 7 meeting to ask about cold beer sales. The Cal-City Grocery has been in operation since the 1970s. Due to the fact that it was already selling cold beer when cold beer sales were banned, it was allowed to continue selling under a so-called grandfather clause. Owner Bill Pearrow died in September 2010 and his daughter, Valerie Riley, has since been trying to find someone to take over the business. A leasee was found, but broke the lease and, as a result, the store was closed for two months. When Riley appeared before the board late last year to question the aldermen about the grandfather clause, she was told that the exemption would be lost if the store ever ceased to operate.
At the Feb. 7 meeting, the board seemed open to the idea of allowing the store to retain its grandfather clause. Doty was told to submit a formal request in writing, and that the board would then act. He did so, and the board held a special meeting Feb. 11 to take up the issue. Although the board initially were going to give Doty until March 1 to open the store, that decision was set aside and the town took the position that the grandfather clause was lost.
On March 6 Doty came before the board again, and defiantly declared that he had a beer permit from the state and planned to open his store regardless of the town’s objections.
After that meeting, Smith sent Doty the following letter, dated March 9:
“I thought I would write you a letter and send a copy to all concerned in reference to the above referenced matter.
“I never ceased to be amazed about ordinances, laws and grandfather clauses. When a town or city or other political subdivision passes a law (at the state level it is called legislation or law – at the local level it is considered ordinance – law.)
“The ordinance has effect immediately except for entities or businesses or individuals currently engaged in business or other lawful activities completely in compliance with all laws of the local, state, etc. before the new ordinance is implemented.
“In 1945 Caledonia passes an Ordinance regulating the sale of beer within 1,500 feet of a church or the ‘schoolhouse’. Thereafter in 1982, the Town ordered beer sales and only of hot beer. Any entity in existence at that time, within 1,500 feet of a church or the schoolhouse, or selling beer would have been “grandfathered in” and in 1982 anyone selling beer cold would have been ‘grandfathered in’. There is a clause guaranteeing this called the ‘expost facto clause’ in Article 3 of the United States Constitution and Section 16 of the Mississippi Constitution of 1890. Simply put laws are prospective not retroactive.
“When a new business opens, it has to be in compliance with all laws, and the Mississippi Department of Revenue will, prior to allowing beer to be sold, make sure the licensee of ‘any license obtained’ is in compliance with the ordinances of the City (if they are within a municipality) or the county (if they are within the county).
“Caledonia’s Mayor and Board of Aldermen have obviously taken the position, upon Cal-City closing in the fall of 2011, and had not re-opened as of mid-February 2012, anytime it opened thereafter it would be considered a new business. That business would have to follow the ordinances of the Town of Caledonia in effect at the time when the ‘business opened’.
“I do not anticipate the Mayor or Board of Aldermen filing any complaint with any Court or with the Mississippi Department of Revenue which governs licensing. However, having lived in Caledonia a good part of my life, and you can rest assured, someone will make a complaint at some point to the Alcohol Beverage Control Division of the Department of Revenue or the appropriate law enforcement forum.
“As far as your criticism of ‘some clerk having to take the minutes’ for a meeting to be legal, is somewhat absurd. There are 271 municipalities in Mississippi and approximately 150 of same, have minutes taken and transcribed by the town attorney. In fact I have done the minutes for the Town of Caledonia since 1997 and I would suppose every meeting held since then was an illegal meeting.
“Title 25 of the Mississippi Code of 1972 deals with ‘executive sessions’ and allows executive sessions to be held to discuss approximately seven different matters. One matter would be discussion of litigation, pending litigation or possible litigation. I would welcome any comment any attorney you might employ, on same. However, that is of little importance, as the vote to allow you to be considered ‘grandfathered in’ failed and was in open session.
“I would suggest you open your business, knowing the contents of this letter. You open your business at your own peril, if you intend to sell beer, if it is part and partial of your ability make a profit. I would think your selling of beer would be short lived at best, however that is for you to decide and not me.
“I write this, to put you on notice, of what may happen in this matter. I have no personal grudge or dislike for you. I certainly do not let any of my personal opinions interfere with my knowledge of the law. I have practiced law thirty years and being in the Legislature for the last twenty. For further clarification, I am presently Chairman of the Mississippi House of Representative Ways and Means Committee. I work very closely with the Mississippi Department of Revenue( formerly the State Tax Commission) day in and day out, and have a working knowledge of the contents of this correspondence.
“Do as you see fit, however do not let it be said, you were not warned of possible consequences if you act as you stated on March 6, 2012.”
Doty briefly addressed the board Tuesday night.
“I know you are tired of looking at me just like I’m tired of looking at y’all,” he said. “I have never in my life struggled so much to try and open a business in a place. I have decided I’m just going to give up the battle, but I’m not giving up the war. I still think I’m in the right. I question the board right now about a very threatening letter I received from the town attorney. I don’t know how it got to be everywhere it got to be, because it was addressed to me and copied to the aldermen, the mayor and Steve Wallace. [Mr. Wallace represents the Pearrow family. – Brian Jones] I have no idea why it was copied to Steve Wallace. He’s not an attorney of mine, never has been and never will be. I’m very upset about the letter and how it’s gotten where it’s all over north Mississippi. I don’t find that very entertaining or ethical either one. I plan to pursue it. I would like to know what instigated the letter.”
“I can relate to the letter,” Gerhart said. “I did not authorize that letter, nor do I think the board members did. When I heard about the letter it was when an alderman came to me at the post office and asked me if I had gotten a letter from Jeff. He told me he had gotten it hand-delivered. I got it in the mail on Monday. I don’t know why it was delivered personally to some and mailed to others.”
“We didn’t have an address for one,” Smith interjected.
“I’ve learned a lot in here from this board, just tonight on a couple of votes that have gone through,” Doty said. “My whole deal behind it is, it’s a shame that three of you want to stop…what you’re doing is trying to stop a landmark. I discussed about what we were going to try to do in a business, and I believe you voted your personal feelings. I’m going to do everything I can to help the Pearrow family, and I’ve turned this letter over to my attorney. I don’t know what’s going to become of it. I still don’t understand how Steve Wallace was copied.”
“I sent it to Steve Wallace because he was the Pearrow’s attorney and I thought he had a right to know,” Smith said. “I wrote the letter because the board was getting castigated. I knew Jeff would take the letter to an attorney who understands constitutional law, and that’s exactly why I wrote it. I sent it to Steve Wallace…I can’t give it to anybody other than you folks. I sent it to Steve because he was here. If you want to be mad at anybody, be mad at me. I was trying to take care of the board members because they were getting fussed at. I didn’t tell them how to vote, but I did tell them what the law was. If you’re mad at anybody, I take full blame.”
“I’m mad that the letter got out and that it’s all over everywhere,” Doty said.
“I don’t know how it got out,” Smith said. “I sent it to the people who were copied on there.”
“I’ll tell you how it got out,” Gerhart said. “If a letter comes to this office and it hasn’t got ‘confidential’ written on it, I consider it to be public record.”
“Well, I did turn it over to a competent attorney, I promise you,” Doty said. “There were some things in there that were above and beyond…credentials and things like that. But you don’t have to worry about me coming to Caledonia. You don’t have to worry about me coming to a place that doesn’t want to prosper. It’s apparent three of y’all aren’t interested in it.”
“Nobody has a problem with the store,” said Alderwoman Brenda Willis. “It’s the beer. You’re welcome to come with a store. To my knowledge no one has said they don’t want you to open the store.”
“I know your feelings, and they’re not about the city, I can tell you that,” Doty said.
Valerie Riley, whose family owns the Cal-City Grocery, also addressed the board. [Ms. Riley spoke to the board at the end of the open session. I’m going to include her remarks here just for the sake of simplicity. – Brian Jones] “To [Alderman Quinn Parham and Savage] I’d like to say I appreciate y’all’s love and concern for the business, which has been in this community for 40 years,” she said. “To [Darnell, Willis and Honnoll] I appreciate your convictions. I think God that people still have convictions. But you are policiticans elected by the people to do what the law says. In my personal way of looking at it, the law was not voted. Convictions were voted. I stand here on behalf of my father, who worked here for 40 years. That stores sits down there vacant not because we can’t find somebody to run it, but because we three Pearrow girls don’t have the money to open it right now. I think the community ought to know that this is a family business that has been here for 40 years. The beer is not the problem. The people do not consume it on the premises. People are not drinking and leaving the store. They are taking it to their own places. I’m sure some of you drink and some of you don’t, but we all have sin. Every one of us has sin. I think the board needs to relook at this.
“When I was here last month we asked you to show us where it says the store loses its grandfather status if it’s closed for a 24-hour time frame,” she said. “That has not been produced for us yet. I’ve researched it and researched it. If we shut our business down Saturday and go to church on Sunday, that means that if we are shut down for 24 hours we can’t open back up.”
“I haven’t got a problem with Cal-City opening, and I’ve told them that,” Gerhart said. “I don’t have a problem with them selling beer. I want another place to buy gas and have a deli. I enjoyed going down there and talking to folks. I don’t know of any problems we’ve ever had down there.”
Gerhart asked for an update on the Dowdle property, which was purchased by the town as part of an expansion of Ola J. Pickett Park. As matters currently stand, the city does not have access to the property because they lack right-of-way from surrounding property owners.
The issue came up during a community meeting held by District 1 Supervisor Harry Sanders on March 27. Sanders said that the Columbus-Lowndes Recreation Authority had planned on giving the town $100,000 to put towards the purchase, but that the town had turned the money down. [The town met behind closed doors with CLRA Executive Director Roger Short and CLRA attorney Will Cooper during their December 7, 2010, meeting. Upon returning to open session the town announced they would not be using CLRA funds to buy the Dowdle property. No explanation was given at the time; from what I understand the CLRA would have had a majority ownership in the property had their money been used, and the town would have been allowed to buy them out at any time. – Brian Jones] Sanders also referred to the town’s difficulties in getting access to their land.
“Both of the owners have said they will not be a hindrance,” Smith told Gerhart Tuesday night.
“We need to get this done,” Gerhart said. “I don’t know who all was at the meeting the other night, if any aldermen were here. [Messrs. Honnoll and Savage were there. – Brian Jones] I don’t know if it’s true we’ll never work with CLRA again because of this. They’ve got a good program down there, it’s not quite as good as ours, but some of the things that were in the paper I didn’t agree with.” [The mayor is referring to a statement that Mr. Sanders made that a lot of bridges had been burned, and he didn’t know if the CLRA would want to work with Caledonia again. – Brian Jones]
Savage asked the board to consider hiring a park director.
“We need to work with somebody to develop a job description and hire someone who can be over the park,” Savage said. “I’ve been doing a lot of it, but I’m getting to where I don’t have time to do everything that needs to be done.”
Savage recommended working with the Stennis Center at Mississippi State University to define the job.
Gerhart asked Savage to look into the matter further and report back next month.
The town once again took up the issue of damage allegedly inflicted by the Water Department on property owned by Jim and Pam Robertson.
Gerhart asked for a motion to go into executive session, but the motion failed and the discussion proceeded in open session.
The Robertsons allege that Water Superintendent Benny Coleman failed to get an utility easement before he did work on their property. Last month they presented the board with a repair estimate of $10,500. Willis objected and recommended that the Water Department do the work itself, but Pam Robertson said that she didn’t trust them to do it. The board eventually directed the mayor to obtain at least one more estimate.
Tuesday night the Robertsons asked for an update.
“I think we’ve lost sight of the issue here,” Pam Robertson said. “This work was done without an easement. We’ve somehow become the bad guys here, and we’re not the ones who broke the law.”
“One of the aldermen thought we could do it cheaper than the $10,500,” Gerhart said. “One thing I don’t understand…the news media prints these bid numbers and then we try to get someone to do it cheaper…how is that legal? How can somebody bid on this when it’s already out there?”
“When the board takes a bid they open them up and then make them public and take them under advisement,” Smith said. “The Robertsons got that bid. It was discussed in an open meeting, and the media has the right to pick it up.”
The board, since last month, got two further bids; Parham delivered one of them to Gerhart during the meeting. Harris Construction Company and Water Solutions submitted bids; both bids were for $5,500.
“It was my understanding that Jim and I would get to decide who will do the work,” Pam Robertson said.
“That [$5,500] won’t put it back like it was,” Jim Robertson opined. “We want it put back the way it was before it was tore up.”
“Were you [Gerhart] out there when any of these contractors looked at the property?” Honnoll said.
“Yes, for one of them,” Gerhart said.
“The next question I want to ask is when these bidders come out there, was they told that it doesn’t matter if they double the bid?” Honnoll asked.
“No,” Pam Robertson said. “I told them I wanted it done right and I didn’t care what the bid is.”
“I’ve got information from two different people, and one was a bidder, that they were told to elevate the bid,” Honnoll said. “They said they were showed the $10,000 bid. I want to ask the city attorney to write the attorney general’s office, the ethics commission and the state auditor to ask if these bids were done correctly.”
Willis seconded his motion.
“The attorney general is the only opinion you’re going to get,” Smith said. “I can ask the others, but they’re going to refer it to the AG for an opinion.”
“That’s fine,” Honnoll said.
The motion passed 4-1, with Parham voting no.
“Well then we need to proceed with anything we’re going to do since the work was done illegally,” Pam Robertson said.
“I think we need to stop talking about this right now,” Parham said.
“At some point you need to stop talking about this in open session,” Smith said. “They’ve already said something about going to an attorney. You don’t need to talk about this in open session. At some point the people out there can be called to testify.”
The board then went into executive session for over an hour.
Upon returning to open session, the board voted to retain Keith Knight to repair the property damage, provided the Robertsons give the town an utility easement.
“You came on our property illegally,” Jim Robertson said. “It’s not good with us that you’re going to decide who fixes it.”
“The fact that [Water Superintendent Benny Coleman] is just trying to cover his butt should bother you,” Pam Robertson said. “The fact that he went to the courthouse seven months after the fact and tried to file a worthless piece of paper as if it were an easement should bother you.”
“We’ll just let the lawyers handle it,” Jim Robertson said.
With that, the meeting recessed.