County Engineer Rudy Warnock is threatening litigation if county supervisors do not pay him for invoices totaling $403,000, with one dating back nearly a decade.

Jackson attorney Dorsey R. Carson, representing Warnock, presented a letter to the Board of Supervisors on Monday regarding a total of 31 invoices he said are due, three of which have been the subject of two different Attorney General opinions.

Among them, Warnock is seeking $19,089.69 for work originally invoiced on Feb. 28, 2006, for Calhoun Station Phase 1. That invoice has since been re-dated to read April 25, 2011.

Warnock is also seeking $66,930.87 for work originally invoiced on Jan. 10, 2008, for Reunion Parkway Phase II. That invoice has since been re-dated to read April 25, 2011.

In addition, Warnock is seeking $135,295.07 for work originally invoiced on Oct. 8, 2010 for Gluckstadt Road. That invoice has since be re-dated to read May 16, 2011.

All three are past the state's three-year statute of limitations for when debts can be paid.

The three invoices were discovered during a 2011 review of Warnock's work by the State Auditor, who ultimately determined that Warnock had under billed the county.

At the time, then-Board Attorney Eric Hamer wrote for an AG's opinion to determine whether or not the county could pay the invoices correctly.

According to the AG's opinion, the only invoice that could be paid at that time was the one for Gluckstadt Road because the statute of limitations had not yet expired.

"From the facts presented, the County may only pay the debt represented by the third invoice, incurred in 2010, and recently presented to the County in 2011, in accordance with the procedures...," the Opinion read. "The 2006 and 2008 debts would be barred by the three year general statue of limitation..."
At some point, Warnock changed the dates on the invoices and submitted them back to the county, and they have yet to be paid.

Board Attorney Mike Espy received a new AG opinion on Dec. 18 regarding the invoices, affirming the statute of limitations had expired.

"As mentioned in your request, this office has previously responded to the county's question regarding lawful payment of these invoices and stated that the 2006 and 2008 debts were barred...," the Opinion stated. "Based upon the facts presented, payment of all three invoices is now barred by the statute of limitations."

Espy recommended the board not pay the invoices, which they did not.

"They are no longer due to be paid," he said. "I would say without elaboration, we've done our due diligence."

Carson argues in his letter that the State Auditor said they should be paid and then called the AG opinion "non-binding."

"You may not be aware of the fact, though the 'total' on the invoices was inaccurate, the itemized listings on the invoices were not," Carson wrote.
"These invoices were properly submitted and placed on the claims docket years ago.

"This is not a matter where the invoices were not placed on the claims docket at all," he continued. "They were - there was just an addition error in the 'total.'"
Carson also said while other contracts have ended, the professional services contract remains.

"For purposes of the Board of Supervisor's consideration as to whether they should be paid today, it should be considered under the auspices of threatened litigation," Carson wrote. "If litigation is taken, then we believe that Warnock & Associates would be entitled to interest, which would be significant in this instance, and to attorneys' fees under the Open Account statute."

Of the 31 invoices presented, 16 were for projects ranging from $300 for Cherry Hills drainage to $92,400 for Bozeman Road five-lane that were approved to be paid. They totaled $211,002.48.

An additional 12 invoices submitted on Monday were not paid due to the county's 25 percent spending cap at the end of a board term.

County Administrator Mark Houston said the county has 45 days from receipt of invoice to be paid and those 12 can be paid in January.

"I think we need to get out of this last quarter of the last year of office and see where we stand on some of those that may or may not be eligible to be repaid," Houston said.

District 3 Supervisor Gerald Steen asked if any new invoices from Warnock & Associates would be coming to the board.

Espy responded, "Might see a lawsuit next year."

Houston said he would expect some, but that he communicated to Warnock that he "needed to cease any kind of work on behalf of Madison County."

Warnock was not present at Monday's meeting, the last of the year.