Forest Heights council reinstates pair

George Wiggers and Carmelita Smith-Barnes retake their seats

At a regular meeting of the council on Jan. 17, acting council President Andrea McCutcheon, acting Mayor Larry Stoner and Councilman Clifton Atkinson voted to reinstate the two, while Councilman Worthington Ross voted against.

Ross argued that the re-appointments were not properly made, as four affirmative votes would satisfy the Jan. 4 ruling of the court, not three.

“Maybe we’ll just have to go back to Judge Nichols and get him to clarify it,“ said Ross, who also argued that the seats should be filled by election.

However, McCutcheon insisted that a quorum was properly convened.

‘‘I think this time it’s a little more solid,” she said. ‘‘We do have a quorum.”

The town charter states that the council needs a quorum of four present council members to conduct business, but four favorable votes are needed to pass an ordinance or resolution. McCutcheon said that, unlike the original appointments, which were passed by resolution, the new appointments were passed as a motion, and so didn’t need four favorable votes to pass.

The council is allowed to make appointments to fill vacancies, but the charter does not state whether the appointments must be made by a resolution or ordinance.

Wiggers and Smith-Barnes were appointed to fill vacancies created after two council members left at the end of their terms. The appointments became necessary after town elections were postponed from May 2006 to March 2007. The delay was ordered last February to allow the town to regroup after mayor Joyce Beck was forced out for allegedly assaulting the town’s police chief, though no charges were ever filed against her.

‘‘I think that everyone on the council should be elected,“ said Ross. “I think that appointments are a backdoor way to get the agenda you want enacted.”

Wiggers and Smith-Barnes were among council members who voted to remove incumbent Mayor Myles Spires Jr. in November for alleged misuse of municipal funds. The council has turned the matter over to the state prosecutor for investigation. No charges have been filed against Spires.

Spires then sued the council to overturn his removal. The court ruled that Spires should be reinstated as mayor because Wiggers and Smith-Barnes were illegally appointed, and by extension, their votes to remove Spires were illegal.

“I think we will attempt again to amend the charter [to remove Spires],“ Wiggers promised.

But Paul Sciubba, an attorney representing Spires, has already moved to block any action the council might take.

On Friday, he filed a motion to hold the council in contempt, alleging that the council disregarded Nichols’ ruling.

‘‘Judge Nichols issued an oral ruling that the appointment of defendants Wiggers and Barnes required four affirmative [votes],” the motion reads. ‘‘In direct violation of Judge Nichols’ order, Council members Larry Stoner, Andrea McCutcheon, and Clifton Atkinson voted to reappoint Wiggers and Barnes.”

Sciubba said the reinstatement was a clear violation of the judge’s order. ‘‘It was clear in [Judge Nichols’] ruling that they needed four affirmative votes,” he said.

Wilmer Ticer, attorney for the Town Council, did not respond to a request to comment.

Stoner said that the council has notified Nichols about the new appointments and that the council was not trying to disobey the ruling.

‘‘It’s not that we’re trying to circumvent the judge’s order,” he said. ‘‘We just have to conduct the town’s business.”

E-mail Thomas Schumann at tschumann@gazette.net.