COVINGTON -- The Newton County Board of Education has approved a settlement agreement between the board and the Newton County Water and Sewerage Authority that will give the board a $36,000 credit.
School board attorney Kent Campbell presented the agreement to the board during this month's work session, when the board unanimously accepted it.
"We can put it behind us and move on," Campbell said, adding that the board has been fighting for 13 months the payment of water and sewer tap fees for the new Newton High School on Crowell Road.
The board paid under protest $297,025 in October 2011 to the authority for water and sewer connection fees, which the authority asserts are rightfully charged, so as not to delay the project, according to information provided to the Citizen via an Open Records Request.
Also in October, attorney Buddy Welch with Smith, Welch, Webb and White out of McDonough filed an Open Records Request for the school board to the water authority, after being contacted as an expert in the field by Campbell. Welch requested from the authority rules, regulations, resolutions and ordinances adopted by the authority to authorize the collection of various fees; the collection of fees, charge and assessments to public entities for water and sewer purposes; and the collection of any type of cost, fee or reimbursements charges for providing water and sewer services.
The authority provided a copy of the letter sent to the board on April 30, 2009. The authority notified the board then that it would have to pay all future water and sewer tap fees due to difficult economic times and in order to be fair to all rate payers paying.
Prior to April 30, 2009, the board paid no sewer tap fees and only $18,680 in water tap fees. From 2010 to 2011, the board paid $127,945 for water costs, $144,000 for a sewer tap and $391,000 for sewer costs, according to a chart provided through the ORR.
In November 2011, Mike Hopkins, executive director of the authority contacted Newton County School System Superintendent Gary Mathews and the members of the school board, acknowledging the ORR.
"We understand that the BOE desires to either not access our sewer system for the new high school or desires to have access for free for this and for all future projects," Hopkins wrote. "We were very surprised to learn of this because of our recent history of dealing with each other, our historical intergovernmental agreement and the fact that utilizing sewer is significantly cheaper that purchasing the land necessary to have a private septic system."
He also acknowledged that the project bidders for the new high school called the authority to ask about the sewer tap fees but the contractor that was awarded the job didn't have the tap fee in its bid. He claims that the ORR was "clearly aimed at attacking (the authority) and preparing for litigation."
"While we have no desire to spend public funds on lawyers and litigation, it seems the BOE has decided upon this course," Hopkins wrote. "We remain very willing and able to sit down with the BOE without lawyers and see if we can find a solution that makes sense for the citizens of Newton County. However, until the BOE sees fit to invest its time in productive discussions rather than paying lawyers, we have no choice but to ready ourselves to defend our fees and prevail on the fact that we have the right to charge a sewer tap fee and under no circumstances are we obligated to grant sewer access for free."
In turn, he asked the board to provide through an ORR 27 items, such as bid documents, communication about planning information, construction budgets, contracts and other items for the new high school.
In February 2012, the BOE apparently requested to meet with the authority board. Afterward, authority board Chair Jimmy French sent the school board a letter, letting it know that it can either build and maintain a private septic field or tap into the sewer system. He also acknowledged that the board paid recent tap fees for projects without protest.
He noted that the BOE can be charged between eight and 28 gallons per student, but the authority only charges for eight gallons, so the tap fee "is much less than what it probably ought to be."
He said the authority membership was "a bit offended by the BOE's approach" -- the authority tried to speak to the board members but none would talk, seeming to have been advised by a lawyer not to speak.
"Instead of open discussion, we received multiple threatening letters from a lawyer seeking 30+ years worth of documents. We would have preferred a series of civil conversations," French wrote.
He said that the board has expressed paying at the time of occupancy rather than at construction, so he offered for the board to pay half of the fee at the start of construction and half when services begin.
Later in February, the school board drafted a letter in response to French, saying that the authority collects fees based upon a formula that is not "fair and equitable to the public school system" since the school board was required to pay 100 percent of the fee for the maximum capacity of the school that wouldn't open until Aug. 2013 and wouldn't reach capacity for several years, while developers of subdivisions don't pay until a building permit is issued.
The school board requested that the authority refund the school board $240,000 and allow the board to pay half of the fees in July 2013, and that in September 2013, the board pay based on the actual student population and would pay additional sewer fees each September if student population increases until it reaches capacity.
"The Board is not asking for special privileges, rather, the Board is asking that the Authority do what is fair and equitable for the public school system," the board wrote.
French responded in March through a letter, saying that the school board is a commercial user, not a residential user. He said that commercial and industrial developers are treated similar to the BOE, and residents are charged when the buildings get built.
School board Chair Eddie Johnson and member Almond Turner apparently met with French and member Keith Ellis for a settlement meeting afterward to discuss the dispute with no lawyers or executives present, according to the ORR. No notes from the meeting were provided.
"Rather than expend taxpayer and ratepayer resources on litigation, the parties desire to settle all claims, matters, controversies and disputes between them regarding fees assessed by the authority related to the project," reads the settlement agreement.
NCSS was billed by Smith, Welch, Webb and White for $3,994.04 in attorney fees from November 2011 to August 2012. Campbell has yet to bill the school board for the matter, but also provided services in the case.
As part of the settlement, the authority agreed to give the school board a lump sum credit of $36,000 for future water and sewer bills.