In this 2013 photo, Dan Lepard, president/CEO of Global Green Lighting, talks about a new prototype.The big question following Thursday's hearing on the whistleblower lawsuit brought against EPB by Don Lepard for the over billing of power for street lights in Chattanooga remains whether EPB and the City of Chattanooga are one or if EPB exists independent of the city.
"It is the determining question," said Hamilton County Circuit Court Judge Jeff Hollingsworth.
Hollingsworth, for now, struck down the motion to dismiss and ruled that the next 120 days will be allotted for discovery, limited to proving whether EPB is one with the city or independent of it. A final decision on EPB's motion will follow the discovery period.
If the two are proven to be the same, "this case is over," the judge said.
Lepard is suing EPB on Chattanooga's behalf for up to $10 million to recover money owed to the city due to streetlight overbilling. Lepard says he found the discrepencies on the books while working as a contractor for the city to replace old streetlights with newer, greener ones made by his company, Global Green Lighting.
Lepard says when he outed EPB's overbilling, the utility provider began bullying his company.
EPB officials have dismissed Lepard's whistleblower lawsuit as "frivolous" and said it's meaningless, as they consider EPB and the city as one. Under their premise, the city could not legally sue itself.
Thursday morning, Hollingsworth heard arguments from EPB and Lepard in response to EPB's motion to have the case dismissed.
Rick Hitchcock, an attorney for EPB, said that questions surrounding EPB's relationship to the city are "remarkable."
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"There is no dispute that EPB and the City of Chattanooga are one and the same," he said.
Hitchcock said EPB is a public authority and an agency of the city. He also said Lepard's legal team has falsely accused EPB of breaking a contract with the city for streetlight service.
"There is no contract ... which the city and EPB are on opposite sides of," said Hitchcock.
He also dismissed the premise that EPB could be in violation of the false claims act in terms of the utility's over billing because EPB is a government entity.
He said the Government Tort Liability Act, which provides immunity to governments from suits stemming from the government's actions, "forbids it."
Hitchcock wrapped up by saying the city and EPB are free to sort out problems between them should any arise.
"[Lepard] seeks to impose himself in the middle of that structure for no reason other than to capture money that belongs to the city and taxpayers," Hitchcock said.
Allen Willingham, an attorney representing Lepard, followed Hitchcock.
Opposite EPB's motion to dismiss, Lepard's legal team sought to persuade the court that reason existed to continue the pre-trial process, specifically to the discovery phase, which allows the parties to gather evidence and depositions, or statements made under oath, usable in court.
Willingham said contrary to Hitchcock's argument, EPB and the city "are seperate in almost every respect you can think of."
He cited division of budgets, money, physical offices and infrastructure between EPB and the city. Willingham asked why, if EPB and the city are one, does the utility have its own offices, governing board and executives?
In this 2013 photo, Russell Dill plugs in a LED streetlight to test it at Global Green Lighting's facility."Mr. [Harold] DePriest is listed at the president and chief executive officer of something," he said.
Willingham said EPB is, in actuality, a business, and is subject to false claims law and does have an existing contract with the city for services.
"EPB is asking that false claims act violations in this case, and in any other case against a government entity, will not be permitted," said Willingham. "At least I think that's what they're saying."
Willingham urged Hollingsworth to allow the case to go forward, at least let it continue to the discovery phase.
"At the end of the day, this is a matter of government accountability and government integrity, and that is not a small issue," he said.
Hitchcock briefly rebutted some of Willingham's claims.
He said EPB "is not an agent of the city," but "an agency of the city."
"The City of Chattanooga is a municipal corporation, who through its agency EPB, provides services," he said.
Hollingsworth said he'd read a lot about the case over the last few weeks, and that Thursday's hearing helped him decide what would happen to EPB's motion to dismiss.
"It has been helpful, and it has confirmed to me what I intended to do when I walked in this room this morning," he said.
After the hearing, both sides weighed in.
"It is clear the court studied the issues very carefully, and we look forward to providing Judge Hollingsworth the information he has requested to make his final decision," said Katie King, senior counsel for EPB, in a news release Thursday afternoon.
Lepard said the move to a discovery period was a win.
"We lived to fight another day today," he said.
Contact staff writer Alex Green at agreen@timesfreepress.com or 423-757-6480.