For­mer lawn-care con­trac­tor to sue county

The Covington News - - FRONT PAGE - GABRIEL KHOULI gkhouli@cov­news.com

Newton County’s for­mer lawn-care con­trac­tor Billy Dur­den is plan­ning to sue the county, claim­ing the county il­le­gally ter­mi­nated his con­tract and slan­dered and li­beled him.

Dur­den’s at­tor­ney John Strauss sent an ante litem no­tice – a no­tice that is some­times legally re­quired in Ge­or­gia be­fore a gov­ern­ment can be sued – to Chair­man Keith El­lis and County At­tor­ney Tommy Craig Nov. 19, but Strauss said Thurs­day he has not yet re­ceived a re­sponse and plans to move for­ward with a for­mal law­suit.

“Al­though I had hoped that the county would at least be will­ing to dis­cuss Mr. Dur­den’s cir­cum­stances, ap­par­ently the county is un­will­ing to vol­un­tar­ily ad­dress th­ese is­sues. Con­se­quently, I see no choice but to pur­sue lit­i­ga­tion in the near fu­ture,” Strauss said in a Thurs­day email.

The no­tice states that “slan­der­ous mis­in­for­ma­tion that was both pro­mul­gated and re­ceived by var­i­ous county em­ploy­ees and of­fi­cials” led to the Newton County Board of Com­mis­sion­ers vot­ing to can­cel its lawn-care con­tract with Dur­den’s com­pany, Dur­den’s Lawn Main­te­nance, in late Fe­bru­ary 2013 and revoke a planned five-year con­tract ex­ten­sion the board had ap­proved ear­lier in Fe­bru­ary.

Dur­den had been the county’s lawn main­te­nance con­trac­tor for more than a decade.

In the no­tice, Dur­den seeks dam­ages of more than $1.3 mil­lion to­tal for un­law­fully can­cel­ing his cur­rent con­tract, re­vok­ing the of­fer of a new five-year con­tract. and de­stroy­ing “his liveli­hood based upon mis­in­for­ma­tion” and a “mis­ap­pli­ca­tion of the county’s own or­di­nance and reg­u­la­tions.”

The Board of Com­mis­sion­ers voted to give Dur­den’s Lawn a 5-year con­tract on Feb. 5, 2013. Af­ter that vote, re­ports sur­faced that Dur­den did not have an ac­tive county busi­ness li­cense. Later re­ports also showed Dur­den had op­er­ated his busi­ness out of his home with­out a busi­ness li­cense from 2002 to 2006.

County Man­ager John Middleton sent Dur­den a let­ter

dated March 13, in­form­ing Dur­den the county was ter­mi­nat­ing his con­tract “for cause.” Cit­ing a sec­tion of the con­tract be­tween Dur­den and the county, the let­ter states the “ter­mi­na­tion for cause is based on the fact that Dur­den’s Lawn Ser­vice, by not con­sis­tently main­tain­ing a valid busi­ness li­cense, ‘per­sis­tently dis­re­gards laws, or­di­nance, rules, reg­u­la­tion or or­ders of any pub­lic au­thor­ity hav­ing ju­ris­dic­tion.’”

The let­ter said the county at­tor­ney’s of­fice had de­ter­mined no ad­di­tional money was due Dur­den un­der the con­tract. How­ever, the ante litem no­tice dis­putes the va­lid­ity of that in­for­ma­tion.

Strauss states the county lacks any au­thor­ity to is­sue busi­ness li­censes for land­scap­ing busi­nesses be­cause it doesn’t reg­u­late them. Many cities and coun­ties get around this re­quire­ment by charg­ing an “oc­cu­pa­tional tax,” but Strauss said he can­not find a record of the county ever of­fi­cially en­act­ing such a tax, which would make the charg­ing of taxes of any busi­ness un­law­ful.

Strauss also wrote that even if Newton County did have the proper au­thor­ity to charge such a tax, pay­ments for the tax would not be due un­til March 15, ac­cord­ing to the county’s web­site. Dur­den re­peat­edly made this ar­gu­ment in past news­pa­per ar­ti­cles, say­ing that, with the ex­cep­tion of the years he did not get a busi­ness li­cense, he re­newed his li­cense be­fore March 15.

Late penal­ties are not as­sessed un­til af­ter March 15, and the ques­tion of whether Dec. 31 of the pre­vi­ous year or March 15 served as the de facto dead­line were fre­quent dur­ing the back-and-forth dis­cus­sion in early 2013.

At the least, Strauss said the county’s ter­mi­na­tion would serve as one of “con­ve­nience,” mean­ing the county would owe Dur­den $41,026.25 for five months, in­clud­ing the two months sev­er­ance and 90 days of no­tice the county never gave Dur­den for want­ing to end the con­tract early. If the case goes to lit­i­ga­tion and Dur­den wins, Strauss states that Dur­den would also be en­ti­tled to at­tor­ney’s fees, costs and lit­i­ga­tion ex­penses.

Fur­ther, the no­tice is seek­ing $300,000 in dam­ages for un­law­fully re­vok­ing the five-year con­tract of­fer the board had voted to of­fer Dur­den.

“This re­vo­ca­tion ap­par­ently oc­curred be­cause of out­side and un­due in­flu­ence from a third-party com­peti­tor, as well as a re­sult of the afore­men­tioned false and slan- der­ous state­ments,” ac­cord­ing to the no­tice.

Fi­nally, the no­tice seeks $1 mil­lion in dam­ages for slan­der and li­bel and “in­ter­fer­ence with con­trac­tual re­la­tions.”

“Mr Dur­den had ded­i­cated his en­tire busi­ness to­ward sat­is­fy­ing the county’s land­scap­ing needs – at times, mak­ing great sac­ri­fices to do, and even per­form­ing ser­vice for free or at dis­counted rates to as­sist the county in its bud­getary cri­sis,” the no­tice states. “He fo­cused upon that ser­vice ex­clu­sively, and now that he has been ‘stabbed in the back’ by cer­tain in­di­vid­u­als, he has no busi­ness; he has no liveli­hood.

“He is in the process now of los­ing his home and ev­ery­thing he owns. For the rea­sons stated above, the county has cho­sen to de­stroy that liveli­hood based upon mis­in­for­ma­tion pro­mul­gated by cer­tain in­di­vid­u­als and a mis­ap­pli­ca­tion of the county’s own or­di­nance and reg­u­la­tions.”

The de­fen­dants cur­rently named in­clude Newton County; the in­di­vid­ual county com­mis­sion­ers; the chair­man, Middleton; G & G Land­scape Man­age­ment Group and its owner, Gary Camp­bell. Camp­bell’s com­pany is cur­rently the county’s land­scape con­trac­tor af­ter win­ning the low bid in May 2013.

Nu­mer­ous con­tro­ver­sies have sur­rounded the county’s lawn-care ser­vice dur­ing the past decade-plus.

For­mer county com­mis­sioner Mort Ewing said pre­vi­ously the county had re­ceived poor ser­vice prior to Dur­den win­ning the county’s bid in the early 2000s.

Mean­while, Dur­den and Camp­bell’s dis­agree­ments stem from years ago. When Dur­den was awarded the lawn-care con­tract in early 2007, Camp­bell, who had sub­mit­ted the low­est bid, filed a for­mal com­plaint with the Board of Com­mis­sion­ers. How­ever, the county used a weighted points sys­tem at the time, of which price was only one com­po­nent, and the com­plaint was ul­ti­mately re­jected, ac­cord­ing to pre­vi­ous news sto­ries, which also show a war of words be­tween the two com­pany own­ers.

There had also been dis­agree­ments in the past few years over whether the board should re­new Dur­den’s con­tract or bid it out, which re­sulted in split votes to re­new Dur­den’s con­tract. Com­mis­sion­ers who voted to re­new Dur­den’s con­tract said he had done a good job, while other com­mis­sion­ers felt the con­tract should be bid out since it hadn’t been bid out since late 2006.

Cov­News.com: see a PDF of the ante litem no­tice

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