Update, 12:51 p.m.: County Attorney Tommy Craig said the county is investigating the claims made by Billy Durden in the ante litem notice and expects to finish the investigation shortly.
"The county is not ignoring Mr. Durden’s claim. It always takes ante litem notices seriously. The county has not yet responded to Mr. Durden’s ante litem notice because the county is now in the process of investigating his claims," Craig said in a Friday email. "The investigation should be complete very soon. After the investigation is complete, we expect to report its findings to the Board of Commissioners in executive session."
For the original story, read below.
Original story, Thursday: 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 without a business license from 2002 to 2006; Durden said he operated out of his house and didn't know he needed a license.
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. The county has said the business licenses it gives expire Dec. 31.
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 slanderous 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.
