Lawsuit seeks removal of county judge, sheriff and county clerk

Monday, November 6, 2006

BERRYVILLE -- A lawsuit seeking the removal from office of County Judge Ulys K. Smith, Sheriff Chuck Medford and County Clerk Shirley Doss was filed Tuesday afternoon in Carroll County Circuit Court.

The class action was filed by Attorney Cindy Baker and former Public Defender Rachel Runnels, and also names the individual members of the Quorum Court, and Prosecuting Attorney Tony Rogers as defendants.

The action is brought by 17 county citizens, including John Reeve, husband of co-defendant and Quorum Court member Eva Reeve. Further, Baker is Mrs. Reeve's attorney.

Baker stated Tuesday morning that Justice of the Peace Reeve is anxious to get to the bottom of what she says appears to be illegal expenditures of county funds dedicated to the construction and operations of the county detention center.

Some observers speculate that the action is politically motivated on the eve of Tuesday's general election. However, JP Reeve began questioning the expenditures in May, and stated in October that the timing was coincidental.

The suit alleges illegal exaction by Medford and others; and misfeasance, malfeasance, nonfeasance and incompetence in office on the part of Smith, Medford and Doss.

Misfeasance consists of unknowing wrongdoing, malfeasance is deliberate wrongdoing or corruption, and nonfeasance is wrongdoing by failing to act.

The filing follows receipt of a report by state auditors based in Harrison covering the expenditures of the county's jail sales tax fund between Jan. 1, 2004 and May 31, 2006.

The report states that Sheriff Finance Clerk Pam Webb was unaware of the existence of the County Financial Management System Manual. "While there are unintentional errors in miscoding," the report states, "the miscoding of the two vehicles by the Sheriff was not an error. He deliberately coded them that way because he did not have any money left in the Capital Outlay category of the budget. Unfortunately, internal control procedures were ignored as the County Clerk purposely allowed his use of improper codes and willingly let these improper claims be submitted to the County Judge for his approval."

The report, which Reeve has described as more strident than that from the Joint Legislative Audit Executive Committee in Little Rock, found comparatively little wrong in 2004.

However, in 2005 some expenditures exceeded the appropriated amount in the "Other Services and Charges" line item by $2,995.

In questioning Medford, auditors were not given an explanation for not pro-rating the salary of Maintenance Supervisor Alan E. Hoos between Fund 01, the sheriff's office, and Fund 03, the Jail Sales Tax Fund.

In October 2004, then County Judge Mike Botelho told Doss, County Treasurer Cindy Collins and Webb that, based on the floor area of the detention center and sheriff's office, utilities should be pro-rated with 84.6 percent for the jail, and 15.4 percent for the sheriff's office.

But auditors also noted instances of shared costs between the sheriff's office and jail during the review period which were not allocated between the two funds. The report states that Webb said that electric, gas and water bills are mailed directly to Doss's office and processed there, and appeared to be unaware that utility costs were not being allocated between the two funds.

Auditors noted that of 11 disbursements, totaling $534,072, one line item of $175 was miscoded by line item but not by category, in 2004.

In 2005, the report states, "we examined 25 disbursements, totaling $5,286, and noted two items totaling $298 that were miscoded."

The report further states, "For the period Jan. 1, 2006, through May 31, 2006, we examined 10 disbursements totaling $5,882, and noted no miscoding."

The report takes separate note of the purchase of three vehicles, totaling $56,950, by the Sales Tax Fund during 2005.

Of the purchase of two of the vehicles, the report states that they "were miscoded on the claims submitted to the Clerk's Office; one vehicle was coded to budget line items number 27 'Other Sundry' and the other was coded to budget line item number 87 'Other Miscellaneous.' The Sheriff acknowledges the handwriting indicating budget line item to be charged is his. The County Clerk processed the two claims; however we have been unable to located the original claims to determine if the claims were approved by the County Judge or his designated representative.

"If these two vehicles had been charged to the budget as Capital Outlay," the report continued, "then Capital Outlay expenditures for the year would have exceeded the budgeted amount by approximately $31,500."

Auditors also note that the three vehicles are being driven by the sheriff, a criminal investigator and a deputy, and that assets have not formally been assigned between the jail facility and sheriff's department.

The report also refers to a news story regarding payment from the jail sales tax fund to construct a bathroom in the sheriff's private office in March, at a cost of about $2,000; and contract labor to transport prisoners, who should be on the county payroll, and who was paid $10,500 from the Jail Sales Tax Fund in 2005 and 2006, even though he works directly under the supervision of the sheriff's office.

In summation, the auditors' report states that other than telephone bills, it does not appear that shared costs are being allocated between the sheriff's office and the jail, and that a memo from Botelho advising how to allocate shared utility costs has never been implemented.

As for the bathroom, the report stated "one could argue a technical violation as it could have been coded to Capital Outlay, but the costs are immaterial when compared to the estimated $6.7 million price of the jail facility and sheriff's office building. Furthermore, the ballot title (approved by county voters in 2000) states that the tax can be used to 'construct and equip a jail facility and sheriff's department' and these expenditures appear to be an allowable use of this tax."

Baker stated Tuesday morning that to avert possible bankruptcy of the county, the suit seeks to recover the money in question from the bond Doss is required to post as county clerk. Further, she said, in light of JP Reeve's attempts to get adequate financial information regarding the disbursements from Medford, that "the taxpayers rely on the quorum court" to see that the money is spent in accordance with the law. "There has been too much gridlock," Baker said.

Regarding spending by the county, Baker said that Smith has three responsibilities, to see that: warrants for payments are accurate and properly appropriated; that the budget is not overspent; and that the expense being claimed is a proper use of the funds.

The criminal allegations against the defendants are misdemeanors.

Richard Williams, the Republican candidate in next week's election for county judge, against incumbent Smith, stated that in discussion with state auditor Mark Marley, who is assigned to Carroll County, Marley stated that, despite Smith's public statement to the contrary, he did not tell Smith to directly address accounting errors, which would be an usurpation of the quorum court's responsibilities and powers.

In a press release issued Tuesday afternoon by Baker and Runnels, they stated that "the lawsuit has been filed to enforce the constitutional rights of the taxpayers, and to require the government to live up to the promises that were made to the taxpayers when this tax was placed on the ballot."

The press release also states that there are no punitive damages or other miscellaneous damages being sought, and that the lawsuit is "to require officials to put the money back that was wrongfully spent."

The two attorneys also stated that the "matter was orginially addressed to the Quorum Court, the legislative body of the county," and as of Oct. 31, "there has been no action taken by the Quorum Court or the Prosecuting Attorney."

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