Judge: Ousted Gould aldermen’s votes stand

Circuit Court Judge Robert H. “Rob” Wyatt Jr. on Tuesday issued rulings on three lingering questions involved in the civil lawsuit brought by a Gould citizens group against two former city aldermen.

Wyatt ruled that:

• Votes cast by the two aldermen while they were in office remain valid although they have since been deemed ineligible to serve and have been removed from office;

• The two aldermen would not be required to repay the salary they were paid while in office;

• And the rent-free use of a city building by the nonprofit organization Gould Citizens Advisory Council is legal.

The lawsuit was originally filed in July 2011 by Samuel King, Norvell Dixon and the nonprofit Gould Citizens Advisory Council seeking to have Gould Alderman Harry Hall and Alderman Rosieanna Smith-Lee removed from office because Hall has a felony conviction and Smith-Lee did not live in the ward she represented.

Previously, Wyatt ruled on July 11 that Hall and Smith-Lee were illegally serving on the council and ordered their immediate removal. Hall resigned shortly before Wyatt’s order.

Meanwhile, Smith-Lee and Hall, through Dumas attorney Howard “Corky” Holthoff, filed a counter lawsuit seeking to have Mayor Earnest Nash Jr., Alderman Ermer Preston and Alderman Essie Cableton removed from office because Preston, Cableton and the GCAC occupy offices in the city-owned building without paying rent or utilities. The counter-suit claimed the situation was “illegal.”

Wyatt had since merged the two lawsuits into a single action.

Wyatt’s ruling on Tuesday began by revisiting the matters left unanswered, namely: whether the actions taken by Smith-Lee and Hall while in office are now void; whether Smith-Lee and Hall should be required to repay funds paid to them while members of the Gould City Council; and whether the use of the former Simmons Bank Building by the Gould Citizens Advisory Committee is legal.

Votes taken by now-former aldermen

Concerning the official actions taken by Smith-Lee and Hall, Wyatt ruled: “The Court finds that the actions taken by Alderman Smith and Hall are not void. The Court finds that Alderman Smith and Hall, although ultimately removed from office, were acting as de facto members of the Gould City Council. Both were duly elected and certified by the Lincoln County Election Commission and sworn in to act as city council members.

The court finds that all actions taken by the two de facto aldermen were valid.”

That ruling means the multiple appointments of Pamela Barley-Gibson as recorder-treasurer, which have been disputed by Nash, is not retroactively invalidated because of Hall and Smith-Lee’s involvement in the vote. Nash has recently said he has refused to let Barley-Gibson into her office to go to work because he was waiting on a court ruling to see if her appointments, which Nash vetoed, were legally valid.

Nash, however, also disputes the validity of Barley-Gibson’s appointments on other grounds.

Nash has said at least one of the meetings in which she was appointed was “illegal” because he wasn’t at the meeting and no proper stand-in for him was appointed. Nash has also said that the council failed to notify the press and others who asked to be notified, in accordance with the Arkansas Freedom of Information Act.

Also, Nash said he vetoed all of the appointments anyway, and the council failed to override his last veto within the 30-day time period prescribed by law.

It was not immediately clear Tuesday how Wyatt’s latest ruling might affect Nash’s contentions about Barley-Gibson’s appointment.

Repayment of salaries?

Wyatt also ruled that Smith-Lee and Hall should not be required to repay funds paid to them while they were members of the Gould City Council.

“The Arkansas Supreme Court has held that one who holds a public office illegally may be required to pay back money received as salary,” Wyatt said, citing case law. “It has also been held that one who, in good faith, performed the duties of a public office held in violation of a constitutional prohibition would not be required to pay back salary received and thus create a windfall to the state.

“The court finds that both Alderman Smith and Hall, each having been elected and certified by the Lincoln County Election Commission, acted in good faith while serving as aldermen for the City of Gould and shall not have to repay any salary received during their terms.

Building use by GCAC

The third question concerned whether or not the use of the former Simmons Bank Building by the Gould Citizens Advisory Committee was illegal.

“The court finds that the use of the former Simmons Bank Building by the Gould Citizens Advisory Committee and other public entities without a written lease is not illegal,” Wyatt ruled. “It is clear from exhibits that the City Council voted to approve the use of the former Simmons Bank Building by certain entities, but a formal lease was not prepared and executed until December 10, 2012. By having the lease prepared and executed, this issue is moot.”

The building, at 405 S. Main Street, is now known as the Gould Community Resource Center. Nash signed a lease with the GCAC on December 31, 2010, specifying that the city would pay all utilities (except for telephone) and insurance.

Holthott, in a brief flied on July 30, had said state law requires a written resolution for such a lease and no such document was ever approved by the City Council. Holthoff had said “damages,” or back rent, should be paid to the city of Gould for the use of the building starting from January 1, 2011.

Reached for comment Tuesday, Holthoff said he had just gotten a copy of the judge’s order and had not had time to read it. He declined to comment.