A county judge today dismissed a lawsuit against EPB by a former contractor seeking to recover what he says were overcharges to the city of Chattanooga for the utility's mismanagement of Chattanooga's street lights program.
Hamilton County Circuit Court Judge Jeff Hollingsworth ruled that EPB could not be sued on behalf of the city because EPB and the city of Chattanooga are legally the same identity. In a 10-page ruling, Hollingsworth rejected claims by Global Green Lighting President Don Lepard that EPB could be sued under the False Claims Act for millions of dollars of inaccurate streetlight bills.
Don Lepard (CQ), CEO of Global Green Lighting, is photographed on the Walnut Street Bridge in downtown Chattanooga. His company has developed an energy-efficient lighting system that can be monitored and controlled through the internet. His lights have been installed on the Walnut Street Bridge, in Coolidge Park and along Frazier Ave. in North Chattanooga. "It is found that EPB, whatever its status, is an entity that is wholly owned by the city of Chattanooga," Hollingsworth said in his opinion. "The city of Chattanooga suing EPB is a case of the city suing itself. If a money judgment were rendered, Mr. Lepard and his attorneys would get part of that recovery. The rest of the money would merely be transferred from one account o the city to another account of the city. As a matter of law, such an exercise in futility cannot be allowed."
Lepard, who contracted with the city under former Mayor Ron Littlefield to replace Chattanooga street lights with more energy efficient and controllable LED lights, sued EPB after discovering that many of the lights EPB was charging the city to operate were not actually on the poles. Under the False Claims Act, a party may sue on behalf of a public identity and get a portion of whatever savings are realized.
The city declined to join with Lepard in the lawsuit against EPB over the streetlights billing problems so Lepard filed his own lawsuit last July after Mayor Andy Berke refused to renew Lepard's contract for more of the new streetlights.
Lepard's lawsuit generated thousands of pages of testimony, motions and arguments and numerous court hearings. But Hollingsworth rejected the lawsuit on the grounds that Lepard couldn't legally file such a claim since EPB and the city are the same.
Despite months of arguments, the question of how much EPB may have overcharged the city for streetlight maintenance and energy costs was yet to be litigated before the case was dimissed.
Lepard, who was not immediately available for comment today, will have 30 days to appeal the decision to the Tennessee Court of Appeals.
EPB spokesman J. Ed. Marston welcomed the ruling Friday and said EPB "will continue to look for ways to find a resolution that is equitable to both the citizens of Chattanooga and EPB taxpayers.
"The court's decision reconfirms what we have said all along that EPB is an independent board of the city of Chattanooga," he said.
A review of the billing by EPB for Chattanoooga streetlights by City Auditor Stan Sewell found that EPB had charged the city for lights that were not on some street poles. Lepard claims the city is owed more than $10 million for overcharges by EPB, but the utility disputes those claims.
Lepard said he is "disappointed in the court's order," which he said his attorneys are still reviewing."We are, of course, considering the option of appeal from the decision," Lepard said.