Aiken County Administrator Clay Killian and the Aiken County Council are denying every allegation made in Aiken County Coroner Tim Carlton's complaint filed March 18 as part of a lawsuit that alleges the Council and Killian "interfered" with the operation of his office.
An emergency hearing has been scheduled for 9:30 a.m. Wednesday at the Barnwell County Courthouse, 141 Main St., according to the Clerk of Court's Office in Barnwell.
Carlton's attorney, Sandy Senn, filed the complaint against Aiken County, Killian, and Council several months after Council froze a budget line item affecting Langley-based company Rucker Removal Services, which is currently tasked with the pickup and transport of the deceased in Aiken County. According to the suit, Carlton and County officials have "clashed" over whether the County "properly used the procurement process to force" Carlton to hire deputies to assist him with the removal of bodies.
The County responded to Carlton's complaint asking that the "complaint be dismissed with prejudice, for the denial of all declaratory and injunctive relief as sought; for the costs of this action; and for such other further relief as the Court deems just and proper."
The issue began when a bid for removal and transport services was initially sent out after Killian went to Council, requesting the members validate a formal contract with Rucker and the County because the two had always operated without a formal written agreement. A month later, July 2013, the Judicial and Public Safety Committee, made up of Council members, decided to instead bid out the service rather than OK the contract.
Council instead went with Lexington-based Palmetto Mortuary Transport, who came in with $160 to Rucker's $175 per each local body removal. Palmetto Mortuary did receive a contract for services when awarded the bid, but Don Lintal, Palmetto's president, told the Aiken Standard the contract was never signed or returned, stating there were "too many issues."
Carlton instead continued the use of Rucker's services, even though the company has not been paid since April 2014. The company, however, will cease services starting Friday, May 15, because of outstanding invoices that the company is owed by the county, unless a judge says otherwise.
In a November 2013 letter from Carlton to Council, he recommended that the bid be awarded to the second-lowest bidder, Rucker, mainly because of its county location and "long-standing relationship with the Aiken community." Carlton also stated, according to the suit, that Palmetto would have difficulty meeting several of the requirements, which includes never testifying in court, a lack of experience with photography, lab work or preparation of bodies for external examination, whereas Rucker personnel had.
"The Coroner takes the position that only he can select his deputies, and the removal of dead bodies should not be let out for bid when the Coroner is statutorily responsible for the conduct of his deputies," the complaint states. " ... While in general, the Coroner agrees that the procurement process plays an important role in the fiscal responsibility of government, the removal of dead bodies is not a service appropriately awarded to the lowest bidder, especially since he has the ultimate statutory authority for body removals."
In an affidavit filed Monday by Carlton, he points out that he "deputized Rucker employees to perform tasks for the Coroner's Office, as did my predecessor," referring to former Coroner Sue Townsend.
"As Coroner, I am liable for the actions of my deputies. I have explained to Council that I reserve the right to select who will be working for me, who I trust, and to whom I will delegate my statutorily mandated duties," he wrote.
In the County's response, Council and Killian also "admit that the procurement process plays an important role in the fiscal responsibility of government;" however, the response points to two state codes, one of which requires "all political subdivisions of the State (to) adopt ordinances or procedures embodying sound principles of appropriately competitive procurement."
The response includes several key points to why the lawsuit should be dropped. One of those points includes that Council was not legally required to contract with Rucker, which has served the County for about two decades, rather than to the lower bidder, Palmetto Mortuary Transport, under the circumstances described in the November letter from Carlton.
Carlton is asking the court for an emergency temporary injunction "enjoining the County from interfering with the smooth operation" of his office. He is also asking for a judgment declaring that the County cannot use procurement services to replace his deputies; that the county must "adequately fund" his office; that it must release the funds necessary to pay (Rucker) for body removals and replace frozen funds; that the County violated the Freedom of Information Act and due-process requirements by issuing a 'materially-misleading' agenda by not giving adequate notice to elected officials, vendors and the public of the true agenda.
But the County's response states that Killian is "not a proper party for the Plaintiff's second cause of action" that alleges the FOIA violation, using state code that places the responsibilities of "compliance with FOIA on the "public body."
" ... Therefore, the 'public body' is the only proper defendant for an enforcement action under FOIA," the response states. "There is no statutory authority for asserting a FOIA claim against a county administrator or any individual employee of a government entity."
Maayan Schechter is the local government reporter with Aiken Standard. Follow her on Twitter @MaayanSchechter.