County begins legal action over purchase of road materials

Ellis County Commissioners approved hiring outside legal council to represent the county related to anticipated litigation from purchase of road sealant by Road and Bridge Precinct 3 and 4 at its Monday meeting.

The Irving based firm Boyle and Lowry was hired. According to their website Boyle and Lowry specializes in municipal and local government law. Some of the areas they focus in include municipal and local government litigation, public finance and municipal bonds, property acquisition, eminent domain, land use and zoning. The purchase of the product was made in early January from Professional Coating Technologies.

The commissioner’s court went into executive session to discus this item at 2:54 p.m. and returned to open session at 3:32 p.m. Upon returning to open session County Judge Carol Bush addressed the court.

“On March 14, my office received a communication from the County and District Attorney Patrick Wilson stating that he was recently made aware of multiple sequential purchases of the same material by Road and Bridge Precinct 3 and Road and Bridge Precinct 4,” Bush said. “Those combined purchased cost almost $100,000 and they were made without the competitive bidding requirements as described by Texas law.”

According to the Texas Local Government code, those purchases were a violation of bidding requirements and could expose county officers and employees to criminal prosecution, Bush said. Bush read a letter from Wilson to the court that he and his office would be recusing themselves from this matter due to their relationship with the county that would cause a conflict of interest.

“I have an ethical obligation to avoid even the appearance of a conflict of interest. I am recusing my office from this matter,” Bush read. “I am requesting the honorable Bob Carroll, the presiding judge of the 40th district court to appoint an attorney pro tem to who will determent one if any course of action should be taken.”

Bush said at present the county has a total of $100, 614.50 in invoices from Precinct 3 and $25,650 invoices from Precinct 4 on purchases from Professional Coating Technologies.

“Those invoices have been sent to the purchasing department already. We need to consider what those options are as a court to approve or not payment at this time and any kind of criminal investigation,” Bush said. “My recommendation to you is retain outside council. I would be suggestion Boyle and Lowry who are well versed in local government and municipal law. Based on the issues that we are dealing with, I think that it is essential we have somebody with an expertise in local government.”

Prior to the vote, Bush told the court Boyle and Lowry have a $300 per hour rate.

The court approved the retaining Boyle and Lowry with Precinct 3 Commissioner Paul Perry abstaining from voting.

Perry’s attorney Mark Griffith said the purchase made by Perry’s office was for a road sealant product that was recommend to him by Precinct 4 Commissioner Kyle Butler. Perry wanted to test the product in several locations to see how it would stand up under different conditions. The purchase that Perry related to his staff was three orders of 2,000 gallons of sealant. One order of sealant ranges from $8,300 - $8,400. The total would have been below the $50,000 threshold before competitive bidding would be required, Griffith said.

“He asked for three loads just to test it and three loads would have come at about $30,000, which is well below the $50,000,” Griffith said. “I have statements from employees that work for him from what Paul said to his administrative assistant all the way down to the foreman who placed the order.”

Griffith said the foreman on the road crew ordered more than what Perry had authorized for purchase.

Griffith said that Perry has not broken the law, that there is no criminal liability in this case and does not anticipate that charges will be filed. The Kaufman County District Attorney Erleigh Wiley has been named as the attorney pro tem to invest this matter. Griffith said his office would corporate fully with the investigation, which would include Perry and Butler’s precincts and the County Purchasing office.

Butler has retained Ronald Bunch as his attorney and declined to comment on the matter.

“I am really not obligated to talk about it right now because it is a pending investigation,” Butler said. “Whatever they need from me I am willing to help in any kind of way to help the investigation.”


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