Roy Herron’s invoice to City of Dresden raises concerns
Story by Shannon Taylor, Senior Investigative Reporter
At the March board meeting, the invoice that the Dresden board of mayor and alderman received from Attorney Roy Herron regarding the lawsuit that former mayor Jeff Washburn filed against the alderman, was discussed.
City Recorder Jennifer Branscum read the response they received from the Tennessee Comptroller’s Office which stated, “The city of Dresden’s charter specifically says that “the City Attorney is responsible for advising the Board and officers and employees concerning legal aspects of their duties and responsibilities; approving as to form and legality all contracts . . . and performing such other duties as may be prescribed by the Board.” There could be instances where the city would have to retain outside counsel, e.g., lack of subject matter expertise, or if the city attorney cannot represent the official/governing body due to a conflict of interest, etc. In those instances, the governing body should follow its procurement procedures established either through its charter, ordinances, and/or general law. From the information provided below, it is not established that there was a need for the aldermen to retain outside counsel due to any disqualifying circumstances involving the city attorney. It is a fair observation that there may be a conflict where there is a lawsuit between the sitting mayor and the board, but that is not disclosed in the information below. Even if there were disqualifying circumstances, there is no information provided that the aldermen publicly discussed the issue or that they followed the city’s procurement procedures and entered into the contract outside of through a public approval process. If they entered into the contract outside of their official authority, then the contract is void.”
City Attorney Beau Pemberton said, “Nowhere in the Order does it allocate attorney fees between the parties, and nowhere in the Order did the Court order one party or the other to bear attorney fees, court costs, or litigation expenses, which is the prerogative of the Court. It appears that the alderman were sued both in an individual capacity and in their elected roles as board members. Typically, claims like this are defended by the City Attorney, counsel provided by our insurance company, or by private counsel brought in for litigation that is approved by the Board. Here, the board members went and secured their own counsel independent of the City of Dresden and without consultation or input from the city. The City never signed a representation agreement with Herron Law Firm to provide representation of the board members, and such representation (or authorizing funds to be spent to that end) was never approved by the Board. In addition, none of the board members had the authority to enter into any contracts with third parties to provide services at taxpayer expense, whether budgeted or not. It is my position that the city should not be responsible for these attorney fees for the foregoing reasons. That said, if the board specifically approves a disbursement of the same and the appropriation of money to that end, it should be done in a manner that requires Herron Law Firm to account for all of their time since their billing seems excessive for the short duration of this lawsuit. The Board is also free to empower the mayor to negotiate with Herron Law Office to pay an amount of money, up to the total billed expenses, to resolve this claim.”
Alderman Gwin Anderson said that the matter needs to be followed up on after Maddox said he would “consider the matter closed.” Anderson said that Herron would need to invoice individually.
The invoice amount was $8,351.60 with a credit adjustment of $720.00 making the total balance $7,631.60. It is unclear if the alderman will be billed equally or if the amounts will be adjusted for each alderman’s involvement in the breakdown of amounts on the invoice.
Herron responded for comment and said, “For the record, some aldermen have volunteered to pay personally, and one has even sent me a check. But I have not asked them to pay me out of their own pockets. I have not billed the aldermen personally because they were sued in their official capacities, and they should not have to pay personally. The city’s insurance, or the former mayor, or as a last resort the city, should pay the expense of defending the aldermen from the former mayor. We are proud to have represented Dresden’s aldermen.”
Washburn responded for comment and stated that he filed the lawsuit at 2:40 p.m. on Friday, July 8 and that a process server began serving the alderman around 5 that same afternoon. “Herron first spoke with Alderman Gwin Anderson on Saturday, July 9 for what was recorded by Herron as 1.4 hours. He did not talk or have any other conversations with aldermen, according to his billing until Monday July 11.”
Washburn said that Herron came to his office Monday, July 11 and informed him that he had been hired to represent the alderman and inquired about Washburn’s requirements for settling the case, which he gave. Herron informed Washburn that he was scheduled to meet with the alderman that afternoon/evening. The meeting between Washburn and Herron lasted less than 30 minutes according to Washburn, but that meeting was not reflected on Herron’s invoice nor was there anything reflected on the invoice for a meeting with the alderman that day. The billing for the next day, however, reflected that he billed 9.2 total hours inclusive of conferences with his paralegal and wife, Nancy, who is also an attorney.
On the morning of Tuesday, July 12, Herron contacted Washburn and advised that he had spoken with the aldermen, and they were agreeable to the settlement offer and that he would draft a proposed agreed order for the aldermen and myself to sign. According to Washburn this conversation lasted less than 15 minutes. Herron listed that he had texted Washburn on this date, but Washburn said he had no such record of texts from him in regard to the lawsuit.
Washburn stated, “I recall that I signed the agreed order on the afternoon of July 12 and Herron told me that he would get all the aldermen’s signatures on the order and file it with the court. He in fact entered the order signed by all the parties and signed by the Chancellor earlier in Martin at 11:35 a.m. on the morning of Wednesday, July 13. The entry of this order brought the case to a conclusion for all practical purposes.”
Washburn then stated that on July 14 that Herron billed the city of Dresden aldermen $1,330 for 3.8 hours for multiple conferences regarding the case with personnel in his office and that alleged phone conferences with the “mayor and aldermen.” He additionally separately billed $250 more for conferences with his paralegal and wife on this date. “I, personally, have no record of a conference with Herron on this date and see no reason why I or the aldermen would need to have a conference on this date considering the order settling the case was entered the previous day.”
“I am of the opinion that Herron’s billing of $7,631.60 was excessive considering that realistically the time necessary to meet with all the parties, draft the settlement agreement, and enter the order with the Court after obtaining the signatures of the parties should have probably been around five total hours. I would additionally point out that Herron never entered an answer to the lawsuit with the court and based upon his billing, the aldermen and I had already reached an agreement on resolving the lawsuit on the date that he billed for drafting an answer and doing research on the legal issues of the case.”
Washburn said he agreed with the opinion given by Pemberton and the Tennessee Comptroller’s office that “it is not, and should not be, the responsibility of the taxpayers of the City of Dresden to pay for this invoice from Herron and that the aldermen should be personally responsible for paying this bill as they violated the open meetings law in their individual capacity in discussing in private action they planned to take.”
Former alderwoman Sandra Klutts told the Press that she was asked to come to the meeting at Herron’s office on July 11 and that she attended with all the other aldermen. “The meeting did not last over an hour, and we returned the morning of July 12 to sign the order and settle the lawsuit, which took maybe five minutes to sign.” Klutts said that she was shocked at the amount of the invoice and plans to discuss the invoice with the Board of Professional Responsibility to get an opinion on the matter.
This is a developing story.
