McALESTER — A long-simmering lawsuit and counter-action between the city of McAlester and former City Manager Randy Green is set to see action this month in the form of a motion hearing in Pittsburg County District Court.

A hearing is set for 11:30 a.m. on Dec. 17 before Associate District Judge James Bland at the Pittsburg County Courthouse in McAlester. During the hearing, all “dispositive motions” filed by the parties involved in the case are to be heard by the judge.

A dispositive motion is basically a legal request seeking a court order to dispose of all or part of the claims in a case without the need for a trial.

During the Dec. 17 hearing, the judge could hear any pending requests for summary judgments, motions to dismiss or other related items.

The case has been making its way through the court system since 2006, when attorneys representing the city of McAlester filed a district court lawsuit on behalf of the city, the McAlester Public Works Authority and the McAlester Defined Benefit Retirement Plan and Trust against the former city manager.

Green fired back with a third-party petition against the city and several of its representatives.

Attorneys for the city and for Green both filed amended petitions in 2006, with  both sides seeking monetary damages “in excess of $10,000” on several causes of action.

Meanwhile, in some of the most recent action, attorneys representing the city of McAlester, the McAlester Public Works Authority and the city’s Defined Benefit Retirement Plan and Trust filed a motion on September seeking a partial summary judgment in the case.

Judge Bland issued an order filed Nov. 21 stating that at the joint request of the parties involved, Green, as the “defendant and third party plaintiff” would be given until Monday to file a “surreply brief” in response to the city’s Sept. 26 action.

Among the actions sought in the city’s Sept. 26 filing is “treble  damages,” a legal term signifying an attempt to recover three times the actual damages the city is alleged to have incurred. A plaintiff, in this case the city of McAlester, can ask the court in a lawsuit to impose the triple damages as a form of punishment.

A “surreply brief” is basically a brief that is allowed after several responses have already been issued in connection with a case.

One of the main points of contention between Green and the city is the amount of Green’s retirement payments.

In the amended petition, Robert Ivester, the city attorney at the time, states “The Retirement Plan is presently paying to the defendant $3,694.11 per month as retirement as provided under the plan.”

“In computing the monthly payment plaintiff has excluded all buybacks which were obtained by the defendant by embezzlement and has excluded car allowance and excluded car allowance.”

Green has already served and completed a federal prison sentence following his conviction on embezzlement charges at the Eastern District of Oklahoma U.S. Courthouse in Muskogee. City councilors terminated him as city manager in 2005 in the wake of revelations regarding massive buybacks of unused leave.

In Green’s amended petition, his attorney contends that his correct monthly benefit amount was $6,554.55.

Green’s lawsuit names as defendants the city of McAlester Defined Benefit Retirement Plan and Trust; the city of McAlester council members acting as the plan administrator; Dale Nave as an individual who served as city councilman; Greg Rock, as an individual; Don Lewis, as an individual, and the city of McAlester councilmen and mayor serving in 2003.

Lewis is a former McAlester mayor, while Rock and Nave are former city councilors. Rock is also a former acting mayor for the city of  McAlester.

Mayor and city councilors who were serving in 2003 include Dale Covington, mayor, and former City Councilors Eric Fassio, Ward 1; Dave Attebury, Ward 2; Michael Dawkins, Ward 3; James Brown, Ward 4; Charles “Shorty” Repass, Ward 5, and Louis Smitherman, Ward 6. Smitherman is not specifically mentioned in the third party petition.

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