(UPDATED) City severs ties with DeKalb Animal Coalition and assumes total control of the shelter (View videos here)

March 2, 2021
By: Dwayne Page

It will be business as usual for employees at the DeKalb Animal Shelter today but behind the scene things have changed.

During its regular monthly meeting Monday night, the Smithville Aldermen voted unanimously to terminate the city’s 99 year lease with the DeKalb Coalition for the Humane Treatment of Animals and for the city to assume total control of the operation. The mayor and aldermen claim that the non-profit 501c3 group, which since 2017 has contracted with the city to manage and oversee the facility, has breached its agreement. City officials contend that the city’s own employees who work there are actually managing the day to day operation of the shelter and not the Coalition itself as specified in the contract.

Sarah Cripps, attorney for the Coalition, vows to mount a legal challenge against the city over its action.

In a separate move, the aldermen voted 4 to 1 on a motion by Councilman Brandon Cox to again allow the shelter to accept animals from outside the city but within the county. Something the Coalition had been fighting for since the aldermen issued the ban during a special meeting on October 29. All of the aldermen voted to lift the ban except for Danny Washer. However the city will still not allow employees of the shelter to venture outside the city to pick up animals in the county due to city liability concerns based on Cox’s motion.

With the Coalition now out of the picture, city officials say they want to work with the county mayor and county commissioners to address remaining animal shelter issues.

The City and Coalition have been at odds since the city imposed county animal ban at the shelter went into effect last fall. The mayor and aldermen believe the city has disproportionately had to shoulder the cost and liability of the operation. The Coalition contends that while the city is obligated to fund two employee positions and other expenditures at the shelter, it is the Coalition which is solely responsible for overseeing and managing the shelter. In addition to the Coalition’s lease and contract with the city, the Coalition has a memorandum of understanding with the county under which county animals are to be picked up by the Coalition upon request of the county mayor or sheriff at a cost to the county of $110 per animal paid to the Coalition. There is no agreement between the city and county regarding the operation of the shelter and the city receives no funding from either the Coalition or County to help offset city costs.

In an effort to resolve differences and forge a better understanding among the parties as to their roles in the shelter operation, a joint workshop meeting was held last Tuesday night between the Smithville Mayor and Aldermen, the County Mayor and County Commissioners, and members of the Coalition. City leaders said they thought the meeting went well and came away from it thinking the parties might be able to improve on their partnership going forward. Then came a letter from the Coalition’s attorney Sarah Cripps on Wednesday sent to City Attorney Vester Parsley seeking to reassert the Coalition’s authority as she interprets it under the Coalition’s lease and contract with the city. Cripps revised and resent the letter to city officials Monday. (see full text of Cripps’ letter below).

Cripps contends that the agreement gives the Coalition, not the City, the sole authority to oversee and manage the animal shelter and the responsibility of picking up animals including those outside the city upon notification by the county and that the shelter employees are to answer only to the Coalition and not the city. On Thursday, Cripps went to the shelter to instruct the employees to once again start picking up and accepting county animals but city officials stepped in to stop it.

During Monday night’s public comment period of the monthly mayor and aldermen meeting, Cripps again gave notice that the Coalition would be instructing shelter employees to resume accepting and picking up county animals as of Tuesday, March 2.

“We are just here tonight to state that we intend to direct the staff to resume the county animal pickup. If they don’t obey us then we will take that issue up with them at a later date. We hope they will see fit to do that but if they do not we think enough lives of animals have been lost due to the city’s actions and we will start tomorrow instructing them to pickup animals,” said Cripps.

Coalition members were also upset that they were not given the opportunity to engage the mayor and aldermen in a discussion about the concerns during the meeting Monday night in which the shelter was listed as an agenda item.

Under a city ordinance/resolution a public comment period is provided at the beginning of each regular monthly meeting. Anyone who resides or owns property in the city may address the mayor and aldermen for a period of three minutes on a matter. Cripps was the only person to address the mayor and aldermen during the public comment period Monday night. And when other members of the Coalition tried to speak later during the meeting, Mayor Josh Miller explained why they could not.

“It is not an open meeting (for public comment). We are in a meeting. It is closed to the public (public comment period). If you live in the city you had a chance to speak. Its over,” said Mayor Miller.

Cripps’ letter to the city on behalf of the Coalition clearly bothered the mayor and aldermen and may have led to Monday night’s decision to terminate the lease and contract with the Coalition.

“I felt like we were going in the right direction (after the Tuesday night workshop) but Wednesday evening I received this letter and got another one today (Monday) but I felt it was not a good faith effort to fix anything although this does need to be fixed. It doesn’t need to be a six or twelve month fix. It needs to be a permanent fix,” said Mayor Miller Monday night.

“I think we had a productive meeting with the county last week. There were discussions between myself and some commissioners and others about actual solutions to this problem that have persisted since this lease agreement was entered into but less than 24 hours later we received this letter from the Coalition that I feel basically undermined the progress we had made,” said Alderman Brandon Cox.

Cox, who is also a lawyer, said the Coalition’s position that the shelter employees are not city employees is “absurd”. He said the city had already employed a full time and part time employee at the old shelter long before the Coalition even came into existence.

“We (city officials) were told (in this letter) that we cannot even talk to (Shelter Director) Megan (Moore) and (Shelter employee) Emmaly (Bennett) because they are Coalition employees. In my opinion that is an absurdity. The lease states that the city employs a full time and part time employee. That is talking about the pre-animal shelter when we had a full time and part time employee dealing with animal control in the city limits. The very next paragraph says the city will continue to provide (these employees). It doesn’t say the city is going to hire employees and turn over full authority to the Coalition. Clearly the city already had those employees and continues to have those employees now. In fact we have added to that and there are now two full time employees. From the beginning of this the city has paid all the salaries, benefits, and any payroll expenses dealing with those two employees. The Aldermen voted to hire those employees (Moore and Bennett) at the recommendation of the Coalition but we did the hiring through the Board of Mayor and Aldermen just as we do with every other city employee. The inverse is also true in that the city is solely authorized to fire those employees. If the Coalition recommended someone the board didn’t agree with we could vote in opposition and that person wouldn’t be hired. If the Coalition comes to us and recommends that someone be fired we would have to vote on that and according to our policies if the votes are not there that employee would continue to work. The lease is absent any language saying these are employees of the Coalition,” said Alderman Cox.

Although the lease and contract calls for the city to provide a vehicle for animal control, Cox maintains that the truck the city bought for this purpose in 2019 remains property of the city.

“It mentions in this lease that we are to provide to the Coalition an animal control vehicle. It would be just as absurd to say that the animal control vehicle that the city owns and insures and is city property is now property of the Coalition merely by this lease. It doesn’t happen,” Cox continued.

Cripps contends that the city’s previous imposed ban on county animals at the shelter prevented the Coalition from carrying out its responsibilities to the county.

“This is absurd. The city is not a party to any Memorandum of Understanding between the Coalition and the County just as the county is not a party to this lease. If you look at the city’s obligations and the day to day operations it doesn’t mention that the city is to go into the county and pick up animals. It doesn’t mention that the city is to receive animals from the county. The Coalition may have an agreement with the county to do those things but we do not as the city. The actual language in the lease shows that the city really has no responsibility outside the city limits,” said Alderman Cox.

Cox then gave reasons for why he thinks the Coalition has breached its contract with the city. Specifically, that it is the city employees who work there and not the Coalition who are managing and discharging the day to day duties of the shelter.

“If Megan and Emmaly are city employees then I believe the Coalition is in material breach of that lease. For all of the Coalition’s responsibilities to be undertaken (in the lease and contract) they have been done by Megan and Emmaly. Absent the actual construction of the building Megan and Emmaly have done everything. For example, the Coalition’s responsibilities are to maintain the proper shelter and care for animals on a day to day basis. That is being done by Megan and Emmaly. The Coalition is to maintain suitable office hours; to enforce laws and ordinances and impound animals; to provide food, water, shelter and other humane treatment; to cooperate with the health department in following procedures when persons are bitten; to investigate violations of ordinances and prosecute if that is the case; to schedule and oversee volunteers and staff; and to answer any calls by the county, etc. I can’t find one obligation that has been done by anyone other than Megan and Emmaly,” said Alderman Cox.

Cox said he believes the city can still work with the county on animal shelter issues without the Coalition

“I think there is still progress to be made with the county with respect to getting funding, personnel, or other avenues of support from the county to properly run a shelter and do animal control. I just find it difficult at this time especially considering the letter that was sent to continue to move forward with the Coalition,” added Cox.

Alderman Shawn Jacobs said he too was disheartened by Cripps’ letter to the city.

“Its very disheartening especially with the optimism most of us had when we left the meeting with the county the other night. I think we have lost a great opportunity there because I am not sure how willing the county will be to negotiate with us now with all this up in the air with this letter. I think the county will probably sit back and see what happens. Otherwise perhaps we could have moved forward very quickly because I have had some very good feedback from county commissioners that they might be willing to give us some financial assistance and we could have moved forward very quickly and resolved virtually all these issues. Now I think we are back prior to square one. I appreciate very much what the Coalition has done. We would not have the shelter we have if it were not for the Coalition. I love animals and nobody here wants to see animals mistreated. Its just a matter of resources. The city does not have the resources to go out into the county with Megan and Emmaly by themselves maintaining the shelter,” said Alderman Jacobs.

Alderman Danny Washer later moved to terminate the city’s lease and contract with the Coalition. Alderman Cox offered a second to the motion. Aldermen Jacobs, Jessica Higgins, and Beth Chandler all voted in favor of the motion.

After the meeting, Marsha Darrah, a founder and leader of the Coalition, said she was upset by the city’s action.

“I don’t understand it. We were doing a good job before and we are doing a good job now. Our employees are doing a good job and they are our (Coalition) employees. It is plain in the contract that they are hired by the city but they work under our operation. They talk about us (Coalition board members) not coming to the shelter and doing work there. We have a board member who goes there probably several times a week and another almost every Saturday. But a board is like these people on this council. They (aldermen) don’t go down and work at the city water department or write the checks that go out to the employees. They have a staff that does that. We have a staff that operates the shelter. We (Coalition) spent $63,000 this year. We raise our money. We are a 501c3. People can make donations to us and they can take it off their income tax. They (donors) can’t do that if they are counting on the city because the city can’t be a 501c3. It can’t be a non-profit. I think there is a lot to lose by the city taking over. The only thing our board is interested in is the shelter. We have put all our efforts into that. The coalition and the shelter are one and the same. The coalition and shelter are one entity,” said Darrah.

Coalition attorney Cripps said she isn’t really surprised by the city’s action to terminate the lease but she plans to file a lawsuit soon to challenge the decision. Cripps added that she believes the Coalition is on solid ground legally.

“I want to point out that it is immaterial for Mr. Cox to argue that the county is not a party to the lease and that the city is not a party to the memorandum of understanding. Its called third party beneficiary status. DeKalb County is the natural and intended third party beneficiary of the lease and contract between the city and coalition and the City of Smithville is the direct and intended third party beneficiary of the memorandum of understanding between the Coalition and the County. The distinction he endeavored to make is one that is frankly without a difference legally speaking. The city has struggled with the idea of who compensates a person and the person who is tasked with directing that person can be and often is two different entities. What is called the loaned servant doctrine (an employee of one employer who is temporarily under the control of another)was created for this instance where I have an employee who I designate to another individual and the understanding is that this individual has the power to direct, oversee, and manage that employee. And my job as the loaned servant is to pay that employee. It happens all the time in the arena of contractors and subcontractors but they (city officials) are so whetted to this notion that they have in their minds is that there can never be any separation between who is authorized to direct someone and who is designated as the payor to the payee so we will be going to court,” said Cripps.

(Below is the complete revised text of Sarah Cripps’ letter on behalf of the Animal Coalition to City Attorney Vester Parsley sent Monday, March 1)

Dear Mr. Parsley:

By this letter, please be advised that I have been retained as counsel for the DeKalb Coalition for Humane Treatment of Animals (hereinafter referred to as “the Coalition”).  I write this letter to you in order to state unequivocally the position of the DeKalb Coalition for Humane Treatment of Animals with respect to its duties, obligations, and responsibilities pursuant to the Lease and Contract entered into between the City of Smithville and the Coalition under date of December 29, 2015, and pursuant further to the Memorandum of Understanding entered into between the Coalition and DeKalb County under date of November 5, 2015.

As you well know, one of the first and most sacred bromides and rules governing the interpretation of contracts is the “four corners” rule.  By employing the “four corners” rule of contract interpretation, the responsibilities, duties, and obligations of the Coalition are explicit and patently clear.

RESPONSIBILITY FOR DAY-TO-DAY MANAGEMENT AND OPERATION OF ANIMAL SHELTER

First, both the Memorandum of Understanding and the Lease and Contract leave no doubt at all concerning WHO is charged solely with the direct, day-to-day management, oversight, and operation of the animal shelter, its staff, and volunteers.

The entity tasked with overseeing and managing the animal shelter is the Coalition, not the City of Smithville and its agents, employees, and members of the Board of Mayor and Aldermen.  Indeed, Paragraph 5 of the Memorandum of Understanding entered into between DeKalb County and the Coalition provides:  “The Coalition will be responsible for the day to day operation of the shelter.”  Memorandum of Understanding at Paragraph 5 (emphasis supplied).  Similarly, Paragraph 15 of the Lease and Contract between the City of Smithville and the Coalition states in its entirety:  “The Coalition will be responsible for scheduling and overseeing all volunteers and staff.”  Lease and Contract at Paragraph 15 (emphasis added).

Moreover, other terms and provisions of the Lease and Contract bolster the clear intention of the City of Smithville, DeKalb County, and the Coalition that only the Coalition is tasked with the day-to-day management and operation of the animal shelter and of its staff and volunteers.  The preamble of the Lease and Contract provides in pertinent part:  “WHEREAS, the City will continue to provide said personnel and vehicle to assist in the day-to-day operation of the animal shelter to be erected by the Coalition. . .  (emphasis added)  In addition, Paragraph 8 of the Lease and Contract states as follows:  “The City shall continue to provide to the Coalition the full time employee, as well as the part time employee, and the animal control vehicle, to ASSIST in the day-to-day operation of the animal shelter and will budget funds for this purpose from year to year, subject to approval of the Coalition.”  Lease and Contract at Paragraph 8 (emphasis supplied).

In compliance with the Lease and Contract, you are hereby notified that from this day forward, it shall be necessary for the City of Smithville and its agents, employees, and members of the Board of Mayor and Aldermen to CEASE AND DESIST FROM COMMUNICATING, WHETHER ORALLY OR IN WRITING OR VIA ELECTRONIC MEANS, ALL COMMUNICATION pertaining to the operation, oversight, and management of the animal shelter with each and every employee of or volunteer at the Coalition.  Indeed, should the City of Smithville desire to initiate any communication with any employee or volunteer of the Coalition respecting any issue pertaining to the operation, oversight, and management of the animal shelter, that communication MUST be accomplished by and through myself as counsel for the Coalition or by communicating with the Coalition’s Board of Directors as a whole.

COALITION’S OBLIGATION TO RECEIVE ANIMALS FROM DEKALB COUNTY

Second, recently, the City of Smithville, by and through its Board of Mayor and Aldermen, endeavored to induce the Coalition to commit a material breach of its Memorandum of Understanding entered into between DeKalb County and the Coalition on November 5, 2015, by voting to mandate that the Coalition stop picking up and stop receiving all animals outside the city limits but inside DeKalb County.  Such is directly contre to the clear language contained in Paragraph 7  of the Memorandum of Understanding.  Indeed, Paragraph 7 of the Memorandum of Understanding reads as follows:  “The Coalition will be responsible for picking up dogs and other animals in the county upon notification by the County, for which the Coalition will be paid a fee of One Hundred Dollars ($100.00) for each such live animal picked up and a fee of Fifty Dollars

($50.00) if the call results in no pick up.”  Memorandum of Understanding at Paragraph 7.  (Please note that per paragraph 9 of the Memorandum, these rates were increased by Ten Percent (10%) in 2019 to $110.00 and $55.00, respectively.)  Effective immediately, the Coalition staff shall resume receiving any and all animals from outside the city limits that are found within DeKalb County.

COALITION’S COLLECTION OF FUNDS AND MAINTENANCE OF FINANCIAL RECORDS

Third, the Coalition was organized as a 501(c)(3), nonprofit corporation and was never intended or organized as a for-profit concern.  Moreover, Paragraph 19 of the Lease and Contract provides:  “The Coalition will collect all board, adoption, capture, and impoundment fees and shall keep proper financial records to account for same.  The Coalition will permit the City, at all reasonable times, to inspect and audit such records and shall make such reports of monies received as shall be required.”  Lease and Contract at Paragraph 19 (emphasis added).

The Coalition stands ready, willing, and able to work cooperatively with the City of Smithville and with DeKalb County to make our animal shelter responsive to the needs of all ANIMALS within our county’s borders and to forge a cooperative agreement involving all three entities that will govern us moving forward.

History judges a society based upon how well or how poorly it treats its most vulnerable, i.e., animals, children, the elderly, and persons with disabilities.

It is my sincere hope that this letter will resolve the current confusion that currently exists respecting the duties and obligations of the Coalition as well as those of the City of Smithville.

Thank you in advance for your careful consideration of the above.

Sincerely,

Sarah J. Cripps, Esquire

cc:  Josh Miller, Mayor of the City of Smithville

March 1, 2021
By: Dwayne Page

DeKalb County High School has released the names of 42 Top Rank students in the Class of 2021 including the Valedictorian Carly Vance and the Salutatorian Hannah Willingham.

Carly is the daughter of Chris and Cheryl Vance. Willingham’s parents are Rob and Deneene Willingham.

The DCHS graduation is Friday, May 14.

To be considered for top Rank, students must take at least 10 honors, dual enrollment, and AP courses and students must have a 21 or higher ACT composite score.

The following students have met requirements to be considered for Top Rank:
1. Carly F. Vance
2. Hannah X. Willingham
3. Leah B. Davis
4. Jasper D. Kleparek
5. Emma B. Jennings
6. Kiley F. Staley
7. Grace E. Griffin
8. Keri D. Winchester
9. Garrett B. Hayes
10. Jaden L. Johnson
11. Brionna A. Agee
12. Luke A. Jenkins
13. Ellisyn K. Cripps
14. Levi K. Driver
15. Skylar M. Fuson
16. Abigail M. Lawson
17. Victor C. Luna
18. Joshua G. Claiborne
19. William S. Pursell
20. Alyssa J. Owen
21. Alexis C. Cudney
22. Ariana T. Keith
23. Lynsey N. Ellis
24. Danna Monge Meda
25. Jacob L. Johnson
26. Craig E. Cooper
27. Cody A. Woodham
28. Hannah L. VanDyne
29. Ashlin J. Maynard
30. Linh N. Truong
31. Lydia G. Davenport
32. Nicholas T. Cothern
33. Alejandra S. Amaya
34. Joshua I. Moon
35. Sydnee S. Hendrixson
36. Noah J. Patterson
37. Ava I. Nokes
38. Savannah R. Jackson
39. Joshua K. Cook
40. James M. Copeland, Jr.
41. Autumn B. Hendrixson
42. Nathaniel J. Dace

February 28, 2021
By: Dwayne Page

It has happened again.

For the second time within the last five days swift creek waters have swept a vehicle off Odom Page Road (Preston-Vickers Road) at Liberty. It happened in the exact same place Sunday afternoon where an Amazon commercial van was washed off the road last Tuesday.

This time five people, including a 16 month old child, were trapped in their truck until help arrived.

(Video shown here and photographs provided as a courtesy of the DeKalb County Fire Department)

According to Trooper Brent Collier of the Tennessee Highway Patrol, 29 year old James Sellars of Hendersonville, who later told authorities he and his passengers were out on a Sunday sightseeing trip, was traveling south on the Odom Page Road (Preston-Vickers Road) in a 2014 Dodge 1500 Ram pickup truck when he tried unsuccessfully to cross where the road was submerged in swift water. The truck was swept into the creek with Sellars and his passengers inside including 29 year old Stormy Creasy of Hendersonville, 61 year old Charles Patrick of Smithville, and 63 year old Margaret Humphrey of Smithville, along with the 16 month old boy.

“All five occupants, including the child were safely rescued with the help of swift water rescue teams from Lebanon Fire and Rescue/Wilson County Emergency Management, the Putnam County Rescue Squad, Smith County Rescue Squad, DeKalb Telephone Cooperative (bucket truck), and Caney Fork Electric Cooperative (bucket truck). Multiple agencies and partners with specialized training and equipment made this a successful rescue,” said DeKalb County Fire Chief Donny Green.

“We send a huge thank you to all responding agencies and partners. Others assisting on the scene were the DeKalb County Fire Department, DeKalb County Rescue, Emergency Medical Services, DeKalb County Sheriff’s Department , Tennessee Highway Patrol including a helicopter which hovered overhead in case of an airlift, the DeKalb County Emergency Management Agency, Tennessee Wildlife Resources Agency, and Randy Mulloy (truck crane),” added Chief Green.

No one was injured but Sellars was charged with driving on a suspended license.

Last Tuesday, February 23 the driver of a 2019 Ford Amazon commercial transport van escaped injury as his vehicle was nearly carried away by swift creek waters on Odom Page Road (Preston-Vickers Road) at Liberty.

According to Trooper Jonathan Burke of the Tennessee Highway Patrol, 25 year old Clarence J. Stewart of Lebanon was traveling south on Odom Page Road (Preston-Vickers Road) attempting to cross the road that was submerged in swift moving water when he was swept off the road to the left and came to a final rest in the stream just off the roadway.

In addition to the Tennessee Highway Patrol, Engine 65 of the DeKalb County Fire Department Liberty Station, County Rescue, EMS, and Sheriff’s Department helped provide for a quick and safe rescue without injury.

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