Judge’s order: Work on new EMS station can proceed

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The contractor working on the new emergency medical station in West Jackson has been given authorization to return to the work site of Lewis Braselton Boulevard.

A temporary restraining order, granted Nov. 20 by Judge David Motes, was lifted after the plaintiffs’ counsel did not appear at the Monday hearing held in Jackson County Superior Court.

During the proceedings, District 1 County Commissioner Tom Crow found himself on both sides of the legal issue.

While Crow is named along with fellow commissioners in the civil action brought by four individuals, he showed his support for the challenge to Jackson County’s efforts to enhance public safety.

Judge Motes said the first matter before him on Monday was “Gilbert & others v. Jackson County.” He asked if anyone representing Albon E. Gilbert, Jerry Tate, James Tate or Douglas C. Walters Sr., was in the courtroom.

Commissioner Crow raised his hand along with the plaintiffs when Judge Motes asked if anyone representing the plaintiffs or any of those parties were in the audience.

The judge said attorney David Jones had called 10 minutes before the 9 a.m. proceeding was to begin to say he was ill. Judge Motes’ office informed Jones of the requirements for a continuance and no written request for a continuance had been received by the time the judge entered the courtroom just before 9:30 a.m.

The judge asked if anyone had talked with the attorney for the plaintiff.

Commissioner Crow stood and said he had spent three hours on Sunday talking with Jones and said he “did look green around the gills and was throwing up some.” Crow said he encouraged Jones “to try everything within his power to be here since this needed to move forward.”

Judge Motes said the Annotated Code of Georgia 9-10-155 spells out the procedure for a continuance when an attorney is ill or otherwise absent. The judge also said he and his staff had spent time over the weekend preparing for the case as had the defendants’ counsel and, since Mr. Crow had spent three hours with Mr. Jones who knew he was sick, he would have thought Mr. Jones would have made the court aware of his illness.

The judge said the petition for mandamus and the temporary restraining order are two separate parts and the TRO would automatically expire on Dec. 20. He noted he was without an affidavit from Jones describing his illness or his future availability.

County Attorney Julius Hulsey asked the judge to strictly adhere to the law since there was “a lot of money in damages at stake.” He urged the judge to dismiss the temporary restraining order and deal with the mandamus at a later date. The county has asked for a jury trial in the matter.

Hulsey provided a statement that gave a partial timeline related to the master plan for EMS stations in Jackson County and said years have already gone into the planning for this and two other EMS stations. Hulsey said commissioners have been involved in voting on aspects of the project, which is being construction on land donated by the Braselton family. The land was donated in 2009 as a part of the Zion Church Road realignment right-of-way acquisition and work on the site was done in conjunction with the property serving as a borrow site for the road project, he said.

In the county’s brief provided to the judge’s office last Friday, Hulsey suggested the judge had been misled related to the construction status of the project.

“I would like to hear this case on its merits and wish Mr. Jones was here,” said Judge Motes. “I don’t know why he hasn’t provided the court with a motion and request” for the case to be heard in the future.

Acknowledging he was not an attorney, Crow asked if he could present a couple of things. He said he wanted to take issue with some of what Hulsey had presented. He maintained that the county attorney had provided some misrepresentation by the declined to elaborate when asked after the proceedings.

Declining the request, Judge Motes said, “Mr. Crow, you are one of the defendants.”

The judge went on to say that he could hear from one of the plaintiffs but they are represented by counsel, albeit absent.

In the county brief, it was maintained that none of the three statutory prerequisites for a TRO had been met and thus should be dissolved.

“The Plaintiffs have failed to show any harm whatsoever that they face as a result of the ongoing construction project, beyond the mere speculation that the project in question will exceed the budget, leaving insufficient funds to construct additional EMS stations,” the county’s brief says.

Judge Motes directed Hulsey to draft the order for his signature which would dissolve the temporary restraining order. That document was prepared, signed and filed in the office of Clerk of Superior Court Camie W. Thomas just after 3 p.m. on Monday.

On Tuesday, County Manager Kevin Poe advised Keith Hayes Construction had received the go-ahead to return to the site to begin work.

Hulsey had argued the order had prevented the contractor from being able to get the station “dried in” so the integrity of the poured concrete could be protected from the elements. Covering and waterproofing of the site was necessary. Hulsey said the contractor’s attorney had provided a letter indicating the county would be held liable for the contractor’s losses.

The county also contended that no further injunctive relief was needed since the plaintiffs were in “no danger of suffering immediate and irreparable harm if construction on the project is not halted.”

The brief maintains that “further delays of the construction will definitely cause the defendants and the public substantial harm in the form of damages arising from breaches of contracts, additional rent on the current EMS site at a rate of $1,000 per month and damage to the building and site of the station.”

But Hulsey suggests the most negative impact of the situation is to citizens.

“The citizens of Jackson County face imminent and severe harm as a result of such an injunction, which will only further delay the ability of the county to enhance emergency ambulance services in the western area of Jackson County for the public’s safety,” says the county’s brief.

The county questions the focus on only one of the Special Purpose Local Option Sales Tax (SPLOST) projects, EMS Station 3.

The county’s lengthy brief provided a further timeline of activities related to Station 3 including the October 2011 discussion which resulted in the Board of Commissioners voting “to amend the allocation from 50/50 for SPLOST IV public safety facilities money agreed to back in 2007, choosing instead to allocate a small portion of the $975,061 in unallocated funds to the fire training center and to the fire departments for radios, and allocating the majority of the funds, approximately $747,000 to the EMS facilities.”

The allocation of those funds for EMS stations had been a point of contention among commissioners but the majority of the board supported the means by which the county could put additional dollars toward the new EMS stations. Commissioner Crow had promoted the spending of SPLOST dollars for a driving course to be constructed at the fire training center along with a list of other expenditures for that facility.

The county brief pointed to the involvement of the commission throughout the process of identifying the sites for the EMS stations, determining the smaller design as what would be built and approving the proposal to finance EMS stations with the remaining SPLOST dollars earmarked for public safety.

See the complete story in the Dec. 13 print edition of The Paper.