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City of Commerce files lawsuit against Throgmorton

By Adam Troxtell
On January 18, 2011

The City of Commerce filed a lawsuit against Mayor Quay Throgmorton and his wife Paige Throgmorton on Tuesday, Jan. 11, in the 196th district court over claims the mayor owes the city just under $50 thousand for a real estate project completed in 2006.

Throgmorton, who is also a real estate agent, was not willing to comment on the lawsuit itself, but said he did not see how it would affect his job as mayor.

"I don't think there's going to be any problem with me operating as mayor," Throgmorton said.

As to whether he was afraid of potential removal from office, Throgmorton referenced the provision in the city charter for a recall election.

According the lawsuit, the project in question was first proposed by Throgmorton in 2004, at which time he was serving on the city council. Along with former Public Works Director Mike Dunn, he requested the city help install a sewage line on a piece of land owned by Throgmorton and his wife, known as the Rosemound Addition.

After proposing a few different agreements, it was finally decided the city would initially pay 56.5 percent of the sewage installation, awarded to contractors McKinney and Moore, Inc., and Throgmorton would pay 43.5 percent. Upon the completion of the project, Throgmorton was to pay back all monies owed to the city. The final agreement was signed on June 21, 2005, and passed by the city council on July 19, 2005. To date, the only payment made by Throgmorton to the city was $34,887 on March 23, 2006.

However, according to findings by City Attorney Jim McLeroy, city equipment was being used for land clearing on the Rosemound Addition as early as November of 2004, months after the project had been proposed. This came at a cost of $7,611.22 to the city, when it is estimated using an outside contractor would have cost Throgmorton between $20 thousand and $25 thousand.

Overall, McLeroy concluded in his findings that Throgmorton owes the city $49,316.38, and he was made aware of this on Dec. 9 of last year when the city demanded payment. The lawsuit was filed just over a month later, at which time Throgmorton gave no response.

This is a result from a presentation given to Throgmorton and the Commerce City Council on Nov. 16 by Jason Cunningham, owner of Benson Brothers Wrecking Services. Cunningham, a former councilman and mayor pro tem for Commerce, was disputing a $200 fee to the city for his towing company to be placed on a rotation list, which he says does not even exist as his is the only towing company in town.

During the presentation, he presented his findings that Throgmorton owed the city money based on public documents. After he was finished, it was decided McLeroy would launch an investigation into the matter.

"It feels good to know something has been righted that was wrong from the start," Cunningham said. "From the start of this thing, I didn't make any accusations toward the mayor. I simply told him, ‘Y'all need to look into this. There's something that doesn't look right here.' I'm pretty pleased with the way it's come out. I think there's going to be more to this before it's all said and done, and I firmly believe you're going to see some more movement."

Cunningham said Throgmorton was the only person with the city that was pushing for him to pay the $200 ordinance, and he also said he thinks he knows why.

"It goes back to a personal deal with my youngest son," Cunningham said. "He was going to sue him over some backed up rent. I offered to pay it and he wouldn't take the money. It wound up in court and he lost the whole thing; he got nothing. That's been a stick in his side ever since."

Cunningham also referenced the March 4 council meeting in which Throgmorton placed much of the city council and officials under investigation for breach of administrative policies over the suspension of former City Manager Dion Miller as a reason he was pursuing the $200.

"This was his dig at me," Cunningham said. "He just wanted to show me that he had the biggest stick and could make me pay $200. I paid my $200, and until another wrecker service comes into town, that's my last $200 I'm going to pay for it."

Throgmorton still holds his office as mayor, and can legally do so until the lawsuit is settled, according to McLeroy.

"There's a fifth circuit opinion that says being indebted to a city does not disqualify someone from holding an office of mayor or city council," he said. "The lawsuit pending or the fact that he may owe the city money does not disqualify the mayor from holding the office he holds."

Mayor Pro Tem Richard Hill said if the mayor were to be removed or resign before the lawsuit was settled, the city would handle it in one of two ways.

"Since it's January, and the elections are in May, the council could elect to operate under four people," he said. "My position would not change. Another thing is the city could have a special election."

Cunningham said he thinks Throgmorton should step aside, and if he does not, a special election should be called.

"This is an embarrassment to the city," he said. "It's not like these are made up charges. There's no opinion involved here. This is a signed agreement that he failed to keep up with. He needs to pay his money to the city, resign and move on."

McLeroy said he expects Throgmorton to answer the lawsuit as late as early February, at which point pre-trial proceedings would begin.

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