Macon County Chronicle

Court Reinstates Cook as Vice Mayor; RBS Rejected Settlement in Cook Lawsuit

 On Wednesday, December 2, Macon County Circuit Court Judge John D. Wootten, Jr. ruled in open court that the Red Boiling Springs City Council violated its own city charter on November 12, 2009 when Mayor Kenneth Hollis and council members Billy Joe Carver, Steve Newberry and Willie Brown voted to remove the title of Vice-Mayor from councilman John Cook.

The court’s ruling immediately reinstates John Cook as Vice-Mayor of RBS for the remainder of his two-year term ending in May 2011.

The decision was announced from the bench by Judge Wootten at the conclusion of the hearing held at the Macon County Judicial Center in Lafayette.

The evidence showed that John Cook had been elected in May 2009 to serve as vice-mayor. The November 12, 2009 vote by Mayor Hollis and three other council members to remove Cook as Vice-Mayor after six months was “invalid,” Wootten ruled, since the RBS city charter expressly requires that the Vice-Mayor shall be elected for a two-year term. 

The hearing took place after a lawsuit was filed by Cook asking that the Macon Circuit Court review the matter and declare that John Cook was illegally removed from his position as Vice-Mayor.  Cook and two other council members, Bobby Etheridge and Terry Newberry, were not present for the city council meeting on Thursday, November 12, which was led by Mayor Kenneth Hollis.

Upon learning of the November 12 action to oust him as Vice-Mayor, Cook acted swiftly and on Friday, November 13 hired Gallatin attorney Jim Hawkins to represent him. Cook and Hawkins worked on Friday afternoon and over the weekend to prepare a lawsuit to challenge the legality of the removal vote.

Hawkins’ lawsuit on behalf of John Cook against the City of Red Boiling Springs was filed when the Macon County Judicial Center opened for business on Monday, November 16.

The lawsuit filed on behalf of Cook contended that the vote to remove John Cook from his duly elected position as Vice-Mayor was a violation of the RBS city charter. 

In addition, the lawsuit also raised the issue of whether Mayor Hollis and/or one or more of the council members who had voted to remove Cook had possibly violated the Tennessee Open Meetings Act.  This Act, commonly known as the “Sunshine Law,” prohibits public officials from discussing and making decisions on public business in private.

The official film recording of the November 12 meeting showed that in a total of only 51 seconds, Mayor Hollis and RBS city council members Willie Brown, Steve Newberry, and Billy Joe Carver moved and voted – all without discussion – to remove Cook as vice mayor, then to name Brown as Vice-Mayor, and then to adjourn.

At an initial court hearing in Lafayette on November 23, Judge Wootten declined to grant Cook's request for a temporary restraining order against the City, but directed that an expedited hearing would take place on December 2, before the next Red Boiling Springs City Council meeting set for December 10.

On Wednesday afternoon, December 2, Cook and his attorney Jim Hawkins sat at the plaintiff's table, and Mayor Kenneth Hollis and city attorney Jon Wells of Lafayette took their place at the defense table.

Cook’s attorney Jim Hawkins made an opening statement to the Court and explained that he had "two legal theories" that would show that the removal of Cook was illegal. 

His first theory, Hawkins stated, was that the vote to remove Cook as Vice-Mayor was a clear and illegal violation of the RBS city charter put in place in 1953 by the Tennessee Legislature. 

Cook was elected by the RBS city council in May 2009 to serve as Vice-Mayor, Hawkins noted, and the city charter states that the Vice-Mayor shall be elected for a two-year term.

Hawkins also offered a second legal theory that the removal vote was illegal due to "a possible violation" of the Tennessee Open Meetings Act, better known as the Sunshine Law.

If the evidence to be presented showed that certain city council members had decided among themselves in private to oust John Cook, Hawkins stated, then such action would be illegal and invalid according to the terms of the Sunshine Law.

RBS city attorney Jon Wells argued that Cook had been appointed Vice-Mayor in May 2009 based upon a motion passed by the city council, and therefore the council had the power to pass another motion and reverse Cook’s appointment as Vice-Mayor.

Wells stated that “the City Council speaks through its minutes,” and pointed out that the official minutes of the council meetings where a Vice-Mayor was elected or appointed, including the May 2009 meeting where John Cook was elected Vice-Mayor, did not specify or even mention a two-year term.

Judge Wootten directed that the evidence to be presented at the hearing would be limited, at least initially, to the question of whether the November 12 vote to remove John Cook was a violation of the city charter's mandate that the city council "shall" elect a council member to serve as vice-mayor for a term of two years.

Hawkins presented three witnesses.  The first witness was RBS City Clerk and Recorder Coby Knight, whom Hawkins had subpoenaed to appear and bring several years of city council minute books.  Hawkins had Ms. Knight authenticate photographic copies of minutes from certain meetings in 2005, 2007, and 2009 for the judge to consider.

In a surprise move, Hawkins next called Mayor Hollis as a witness. During his testimony, Hollis admitted that he was sworn to uphold the city charter, and stated that it was not his intent to violate the charter when he voted to replace John Cook as Vice-Mayor with Willie Brown.

The third and final witness was John Cook himself, who confirmed his understanding that he had been elected for a two-year term as Vice-Mayor, as required by the charter.  City Attorney Jon Wells cross-examined the other two witnesses, but did not cross-examine Cook. 

Wells announced that he would present no witnesses and no evidence, but would base his argument on the evidence that had been presented.

After Hawkins and Wells made their closing arguments, Judge Wootten recessed the court for about 20 minutes while he reviewed his notes.  When he returned to the courtroom, Wootten announced his ruling, which began with a careful and detailed review of the evidence before the Court.

Judge Wootten opened his remarks by emphasizing that his decision would in no way be based on personalities or politics, but would focus on the law and the facts presented in the hearing.

He stressed that the city charter is "the Constitution" of the City of Red Boiling Springs, and that the city is only granted power to act by and through its city charter.

Judge Wootten also stated that it is important that courts do not become embroiled in public policy debates. He further prefaced his decision by stating that his decision was "not a reflection on Mr. Brown, Mr. Cook, or Mayor Hollis."

"Each was popularly elected," stressed Wootten. "My decision today would be the same if the roles were reversed, if Mr. Brown had first been elected Vice-Mayor and Mr. Cook were chosen to replace him."

In reviewing the evidence, the judge noted a clear "pattern" in the history of the city council, in that every two years the city council had elected or appointed a council member as Vice-Mayor for a two-year term.

Judge Wootten announced that it was the finding of the Court that John Cook was properly elected as Vice-Mayor on May 14, 2009, and that the city charter required that the Vice-Mayor shall be elected for a term of two years.

"The action of the city council was and is invalid," declared Judge Wootten.  "John Cook was properly elected Vice-Mayor. John Cook IS the Vice-Mayor."

Wootten stated that it would not be necessary for Jim Hawkins to present evidence regarding a possible violation of the Sunshine Law, since Hawkins' client Cook had prevailed in showing that the city charter had been violated.

The court ordered that the City of Red Boiling Springs must pay for the court costs, filing fees, and court reporter expenses.

After the hearing, Cook’s attorney, Jim Hawkins, stated, "The court ruling today affirmed that citizens of Red Boiling Springs have the right to expect and demand that their city council act fairly and in compliance with the charter and other Tennessee laws."

"I am proud of John Cook for standing up in a difficult situation and asking for this matter to be properly, fairly, and openly resolved in the public's view," Hawkins concluded. 

"I think that the citizens of Red Boiling Springs are the real winners in this case, especially those who believe that their government should be open, honest, and accountable.”

The next regular Red Boiling Springs City Council meeting is scheduled for Thursday, December 10th at 7 p.m.

 

City of RBS Rejected Settlement Offer in Cook Lawsuit

Prior to the December 2nd expedited hearing on the lawsuit filed by RBS councilman John Cook against the City of Red Boiling Springs, claiming that Cook was illegally ousted from his seat as Vice-Mayor, the city rejected a settlement offer submitted by Cook’s attorney Jim Hawkins.

In the letter, dated December 1, 2009, Hawkins addressed City Attorney Jon Wells and Mayor Hollis and made the following settlement offer at the request of his client John Cook:

In exchange for the City’s agreement to allow Macon Circuit Court to enter an Agreed Order on December 2, 2009, declaring that the votes to remove John Cook as Vice-Mayor and to name Willie Brown as Vice-Mayor were in violation of the City Charter and therefore illegal, and that John Cook is hereby restored to his elected role as Vice-Mayor for the remainder of his two-year term, John Cook will agree in the same order to withdraw any claims requested in his lawsuit in this matter where he was seeking attorney fees and court costs against the City of Red Boiling Springs.

 

The order would further state that each side will bear its own attorney fees, and that John Cook waives all right to seek reimbursement for his attorney fees and court costs in this matter from the City of Red Boiling Springs or any individual or city official, whether elected or appointed.

Red Boiling Springs Mayor Kenneth Hollis responded in writing by return fax with the following:

We have looked at your letter of Offer of Settlement in disagreement, and we do not believe we are in violation of our city charter.

Therefore, we will be in court tomorrow at 1:00 p.m. to settle this matter in front of Judge Wootten.

The City’s refusal of the settlement came after the city’s insurance company, TML Risk Management Pool, notified City Attorney Jon Wells that it would be unable to provide the City with legal representation due to Section II -EXCLUSIONS of the liability policy, which states that - (Page 3) This coverage does not apply to bodily injury, property damage, personal injury, or any claim for damages: (Page 9, 35) Arising out of any actual or alleged ouster suit or proceeding.  

Due to the refusal of legal representation by TML Risk Management Pool, the city’s refusal of Cook’s proposed settlement, and the ruling made by Macon County Circuit Court Judge John D. Wootten, Jr. that three city council members and RBS Mayor Kenneth Hollis violated the city charter when they voted 4-0 to remove the title of Vice-Mayor from Cook, the City of Red Boiling Springs must pay for and reimburse John Cook for his court costs, filing fees, and court reporter expenses.

Finding no provision in the city charter for the Court to order the City to pay Cook's attorney fees, Judge Wootten made an "advisory suggestion" that Mr. Cook was free to request the City Council to pay his lawyer fees, and that the City Council could certainly respond to such a request and decide whether to reimburse Mr. Cook for his fees.