County Judge Cunningham began documenting problems with the restoration of the Fannin County Courthouse shortly after taking office, two and one-half years ago. Many of the issues are the result of shoddy or substandard work performed by the subcontractors. Some of the problems did not meet the requirements of the electrical code and were deemed a fire hazard by the Texas state licensing agency. The courthouse was under a fire watch, and the county was required to have a person dedicated to monitoring the courthouse during business hours until the dangerous conditions were mitigated.
Recently, Judge Cunningham attempted to remedy the problems and defects with the Courthouse by asking the commissioners to approve hiring litigation attorney(s) to attempt to recoup taxpayers' dollars related to the cost of repairs and damages at the Fannin County Courthouse.
Therefore, Judge Cunningham attempted to enter into a civil lawsuit to recover monetary damages and force those responsible to fix the problems. The Judge placed an item on the Commissioners Court Agenda several times. The agenda item to hire litigation attorney(s) failed on May 6 due to a tied vote. Judge Cunningham and Commissioner Kopf voted "yes" to proceed with the civil lawsuit, and Commissioner Waggoner and Commissioner Fogelberg voted "no." Commissioner Self abstained. Again, on May 27, the same item appeared on the Commissioners Court Agenda (item 18). During a discussion about the civil suit on this day, Commissioner Waggoner and Commissioner Fogelberg stated that they would vote "no" if a motion was made and seconded. Commissioner Kopf stated that he would vote "yes" if it came to a vote. No motion was made. The court passed on this issue.
Why is this important? The courthouse restoration cost the taxpayers twice what the taxpayers were originally told it would cost. Additionally, much of the work that was done does not meet the contractual requirements. A civil lawsuit, if won by Fannin County, could recover a significant amount of money for the county. Some facts to consider:
- We need to file a civil suit now, before the statute of limitations is reached.
- The criminal case that was filed may not include financial restitution to the county, even if the defendant(s) are found guilty. The burden of proof in a criminal case is higher than in a civil case. In a criminal case, the defendant(s) must be found guilty beyond a reasonable doubt. In a civil case, the defendant(s) may be found guilty by the preponderance of the evidence (that means itfs more likely, than not, that the defendant(s) are guilty or responsible). THIS IS WHY THE COUNTY NEEDS TO PURSUE A CIVIL CASE. THE CIVIL CASE COULD BE WON BY THE COUNTY, EVEN IF THE CRIMINAL CASE FAILS TO CONVICT THE DEFENDANTS. If the county wins the civil case, restitution will be awarded to the county.
- The civil suit will most likely include defendants not included in the criminal case.
- Fannin County has an attorney who believes there is merit for a civil suit. The attorney is willing to represent the county on a contingency basis. He will be paid only if money is collected. The county will have to pay court costs and costs for transcripts.
- The civil suit cannot be pursued on behalf of the taxpayers without a majority vote by Commissioners Court. Judge Cunningham and Richard Glaser (former District Attorney) made the foregoing information concerning civil suits versus criminal suits very clear to all the commissioners and court attendees during the lengthy discussion about agenda item 18. Considering the information shared, it is difficult to understand why anyone would not want to move forward with the civil suit. The consensus by those in attendance was that this is a "no-brainer." However, during the discussion, Commissioner Fogelberg stated, "I believe the Federal and the State should proceed with the lawsuits. If found guilty, they're going to get this restitution from [them] people....if they're found guilty. It's not the Commissioners Court's decision to send somebody to trial for that, in my mind. We're not [gonna] prosecute litigation in this matter. All the bills and actions have been approved through the Commissioners Court. I mean, it's been through Commissioners Court through the years that it was done. And if that's not sufficient enough reason, it is my reason. Thank you."
- Commissioner Waggoner stated, "You've also got to prove somebody guilty in a court of law on a criminal case before I feel it's justified to bring a civil case, and that hasn't been done yet, and I'm still voting nay, on it."
Writer's Note: As stated above, a successful criminal case does not necessarily include monetary restitution. Also, a civil case can be filed whether or not a criminal case has been filed and won.
I can't find one sensible reason in Commissioners Fogelberg's and Waggoner's stated reasons to vote "no" on the civil suit. These commissioners are making a serious mistake by blowing an opportunity to recover taxpayer dollars. I don't understand why. Don't take my word on this.
Listen to the ZOOM recording and come to your own conclusion. If you agree, ask these commissioners, "WHY?"
The discussion about agenda item 18 begins at time 00:52:16 and ends approximately 45 minutes later.
My opinion: Fannin County can't afford to elect "road commissioners." Road commissioners are inadequate to address the complex problems the county faces today. We must have commissioners who have the skills and common sense to manage the business of the county.