By Pat Cooper
It took about an hour for the Fayette County Ethics Board to drop the charges filed against County Commission Chairman Steve Brown by former Commissioner Robert Horgan in a 2-1 vote.
It’s the second time Brown has faced the board on ethics charges filed by Horgan with differing results. At the last hearing, Brown was found guilty on two counts. At that hearing, Horgan contended that Brown was in violation of two sections of the county’s ethics ordinance in that he Brown “gave a direct instruction to the county’s Human Resources director, Lewis Patterson, to seek a legal opinion from the state attorney general,” since, under the county’s ethics ordinance, as it had been structured, “commissioners shall not, acting alone, make suggestions to the department director or their employees regarding the performance of their duties, nor give instructions to the department directors or other employees.”
In a second offense, according to Horgan, Brown is also guilty of violating Executive Session rules.
“On March 9, Commissioner Brown wrote a letter to Attorney General Sam Olens. In this letter, Commissioner Brown disclosed conversations between the county attorney and the board of commissioners in executive session.”
Though there was some debate among the board members at the time, it was determined that, considering the way the ethics ordinance was worded, Brown was in violation, though no penalties were imposed. Brown has since appealed his conviction to the Fayette County Superior Court.
Since that time, on Jan. 29, 2012, the board voted to make what they deemed necessary changes to the ethics ordinance. The crux of the problem lies in the paragraph saying “commissioners shall not, acting alone, make suggestions to the department director or their employees regarding the performance of their duties, nor give instructions to the department directors or other employees.”
“For the record,” Commissioner David Barlow said, “that means if the restroom ran out of toilet paper and I asked the janitorial service to supply it, I could be guilty of the ethics ordinance. If a constituent asked me a question about something, and I asked a staff member to provide me with information so I could research it, I could be found in violation.”
The newly approved paragraph reads: “County commissioners, as policy makers, shall refrain from interfering in the daily administrative affairs of department directors. Commissioners shall not make recommendations regarding the hiring, firing or disciplining of department directors and other county employees.”
With the change in the ordinance, Brown’s representative, Griffin Attorney Andrew Whalen, moved to drop the charges against Brown, saying that the board of commissioners had, essentially, voted to change the very paragraph that Brown was said to have violated, but the board determined that they wanted to hear the charges. At the hearing, Horgan charged that Brown ordered the county marshal’s office to investigate former county attorney for theft of county property, once again violating the ethics ordinance.
In January, Brown had asked the Fayette County Marshal’s office to investigate a missing hard drive and laptop that had been used by Bennett before his departure at the end of December.
According to Brown, after newly appointed interim county attorney Dennis Davenport attempted to check the files on Bennett’s former computer at the county administrative complex, he discovered the hard drive was missing from the computer. Additionally, it was determined that Bennett had not yet returned the county-issued laptop at the time of the investigation request. When it was returned, just after the first of the year, it was discovered the drives had been reformatted, not wiped, but the county’s IT technicians haven’t been able to retrieve any other information.
“Aggravating the nature of Mr. Brown’s action in this matter is the fact that Mr. Brown already had a pending ethics complaints against him regarding giving a directive to the Human Resources Director. This put Mr. Brown on notice that such acts are prohibited. This board should deal harshly with Mr. Brown as he is showing a blatant disregard for county policy and the ethics ordinance.”
Board member Larissa Marks asked Horgan if he had any indication that Brown was acting alone.
“He signed the letter as the chairman of the board of commissioners.”
“The only information I have is that he was spending county funds to have somebody investigated. There should have been some official action and make this part of the county process. I find this is a very serious investigation.”
Whalen said he didn’t feel the complaint set not set forth an action because of the action taken on Jan. 29.”
Whalen said the board made the legislative decision to remove the second sentence of section 2-209-n, because of their legislative intent that a commissioner should not be subject to an ethics violation for giving an instruction to an employee and that a statute will be held to repeal a prior statute when “the latter is clearly inconsistent and contrary to the most recent enacted law.”
“That’s what you have here. That was the intent of the board of commissioners, they have, in essence, taken away from you, the ability to proceed based on this ethics complaint.”
Though Marks asked for the dismissal, it died for a lack of second.
Brown testified that he had spoken with other commissioners regarding the investigation and all four had offered notarized affidavits of their phone conversations with Brown.
Brown said the reason he called for the investigation after noting the missing hard drive was that “we assumed it had been stolen and obviously we had a lot of sensitive legal documents and legal correspondence on there related to county business. It was an issue of dire concern.”
He said he called the commissioners and told them of his concerns.
The cornerstone of the questions were wrapped around the subject of the investigation and who was being investigated- which employees.
Commissioner Chuck Oddo noted that the “situation was fluid” and they didn’t know the extent of the problem.
“The immediate one we were talking about Scott Bennett,” he said. “We were talking about the situation in general.”
Commissioner Alan McCarty, when called to testify, agreed he too had given Brown the go ahead over the phone.
“I have a statement. If I walk into an office and try to the person who’s in charge of a particular piece of equipment get information out of it and find out that part of its gone and a laptop is gone, I immediately call the police. We didn’t know who did it. My first inclination is to call the police quick. He asked me and I said absolutely. If something’s missing, let’s find out who took it. In my opinion, that’s what happened.
“At that time, we didn’t know who took it. It was a suspicion. It was an investigation into county employees, assuming it had to be a county employee who had access to get into a locked office.”
Both commissioners David Barlow and Randy Ognio echoed similar conversations.
Ultimately, board chairman Sheila Huddleston moved to dismiss the complaint against Brown, with Marks seconding it. Board member Scott Rowland voted in opposition.
After the meeting, Brown said he felt vindicated.
“We’re making mountains out of molehills. We had somebody who had government property here, it was missing, there were vital legal records and when you find out that those types of records are missing, you have to act right away. And that’s what I did. I consulted with my colleagues and we moved for the investigation.”
Brown noted there’s nothing the county can do about the missing data at this juncture, since it had been professionally wiped and they’re note even sure what data is missing.”
Whalen added that even though they’ve filed an appeal in Superior Court, he believes that the change in law moots the conviction.
“We’ll have a chance to argue it.”
“Now that the five commissioners have come out and said they can do things over the phone, we have Steve Brown calling each commissioner, lets have this big investigation, let’s have county resources, our marshals go look for a criminal,” said Horgan. “It was so important to have a called meeting to change the ethics code, why didn’t we have a called meeting to say let’s go have an investigation? With every one of these guys, nobody knew the name of who they were investigating. Are we that out of touch? We can have a called meeting to change the ethics ordinance, but we can’t have a called meeting to say we need to investigate these employees.”
“They have made a mockery of this board by changing the rules on them in the first place.”