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Are Documents in City Ethics Probe Being Properly Opened to Public?

Dunwoody is using two legal standards to shield public documents in ongoing ethics probe.

An Atlanta-area lawyer associated with the Georgia First Amendment Foundation says Dunwoody could be applying the state's open records law unevenly in its ongoing ethics case.

The investigative findings, commissioned by former DeKalb District Attorney Bob Wilson, was publicized and widely released in May to the public through the city's website.

The report named Councilwoman Adrian Bonser and former City Attorney Brian Anderson as leakers of confidential city information gleaned in city executive sessions about "Project Renaissance" a redevelopment deal in Georgetown.

Since then, as the city's formal ethics process has moved forward, officials have turned off the spigot of public information related to the case. The ethics case now involves all council members, as Bonser has filed counter complaints.

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What changed?

The free-flow of ethics documents progressed normally in late May and early June. The city's acting attorney, Cecil McLendon, released a rather tame but required response to the City Council's complaint against Bonser.

Bonser's response to the complaint, due in mid-July, was not released. The City Clerk deemed that a state law that hadn't been invoked by the city before protects investigations and bars associated documents from the public.

McLendon's earlier response in the ethics case was later rescinded as a public document, despite the fact it had already been disseminated. City officials said it was released "inadvertently."

A new legal interpretation

The state law cited by Dunwoody officials says it exempts select documents from public review:

“Records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated, provided that this paragraph shall not be interpreted to make such investigatory records privileged."

That use of the law raised the eyebrow of Gerry Weber, a local civil rights attorney, who is a board member with the Georgia First Amendment Foundation.

Weber said as a practical matter, the exception to these type of open records typically has been used in police internal affairs matters. They also are used in separate employee investigations - not necessarily elected officials.

The rationale for this: Involved parties and witnesses are able to speak freely, which can allow for a thorough investigation.

Dunwoody's case appears to be different. was completed by openly talking to people involved in the alleged confidential breach, with no expectation of privacy. The report, released in March, names people interviewed in great detail. Information about Bonser's health matters were even disclosed.

Bob Mullen, city spokesman, had this to say about the decision to stop releasing records related to the ethics review:

"There were several documents released related to the leak of confidential information from a City Council executive session.  The first document was the investigation report by Bob Wilson of Wilson, Morton & Downs that the City ordered," he said. "That document was not a product of any investigation and therefore is not subject to the provisions of the ethics code as it related to open records."

Mullen did not address the state law that could exempt investigative documents from public disclosure, instead citing the city ethics code.

Weber said that council members are not necessarily shielded from public speech under the state law the city officials are now invoking.

"My understanding of the (exception) is that it creates a space for information (in an investigation) to flow more freely," Weber said. "And I'm not sure that exemption has been applied to council members, just (public) employees," he said.

A Double Standard?

Up to this point, the city has applied two different sets of legal standards in releasing and withholding documents. When Bonser's response was not released to the public (Bonser personally gave the response first to the Dunwoody Crier) the city applied the state's exception on investigations.

However, in releasing the initial Wilson investigative report, the city's action seems to run counter to that same state exemption, which says "records consisting of material obtained in investigations … against public officers" will be kept confidential until 10 days after the conclusion of the investigation.

Prior to Bonser's response not being released - the first such denial -  the city applied its own ethics code in allowing the disclosure of sensitive investigative documents, such as the Wilson report.

From the city's ethics code:

"Upon receipt of such a complaint, and until an investigation of the complaint is concluded, all matters regarding the investigation, facts of the matter giving rise to the complaint and status of the investigation shall not be disclosed and shall be kept in confidence."

That code seems to suggest investigative matters are confidential. However, a critical point is that Wilson's report was released prior to the City Council filing a complaint against Bonser.

Therefore, nothing in that section would seem to preclude Wilson's report from being released, under the city's guidelines.

Weber says the city could have approached the situation differently. Since the Wilson report named Bonser and Anderson directly, couldn't city officials have used the same state exemption that would seem to keep all "investigative" material under wraps?

"The lack of even handedness is suspicious," Weber said. "Especially where there are two differing positions and are not otherwise equal. You would think the government would release both sides of the coin or not at all."

See also: Councilman and City Attorney Leaked Information

City Attorney Resigns Over Council Leaks

Needmore Dough August 15, 2012 at 03:38 PM
Jason, Mr. Weber is a seasoned expert on 1st Amendment Rights, great source for this story. Now that you've shown readers your high level of journalistic expertise, we'll expect more and more from you. You are a victim of your own talent! This matter may become even more drawn out, bizarre, costly, and painful, as it's complexity deepens. In the end, the poor ol' fool with a pen, the taxpayer, pays and pays and pays. And pay we shall, if a third party decides to get involved with an ancillary suit alleging procedural wrong-doing by the City.
Jason Massad August 15, 2012 at 03:43 PM
Like your user name Needmore - me too. Thanks for the compliment. I'd like to get a dialogue started on this. You seem like a likely person to start it off. Information that could have been protected - arguably - about Bonser was put out there. Do you think there is a reason for that? Should other council members release their responses to the ethics complaints against them in the interest of transparency - and because Bonser did so as well? Would this serve a public process. Or would it just drag things farther into the mud?
Needmore Dough August 15, 2012 at 04:17 PM
There are reasons for everything, one can speculate on the how's and why's all day long. Unfortunately, such speculation is like a gerbil spinning on a wheel, while there's lot's of amusing activity, there is no forward motion. The Wilson Report release occurred 'tween the departure of one City Attorney and the installation of interim counsel. Perhaps nobody was advised on all the implications of releasing the Wilson report. Perhaps somebody wanted to embarrass or intimidate. I hope that the Wilson report was released in the spirit of transparency. The ensuing counter-claim against everyone else is a despicable political 'scorched-Earth' tactic, in my opinion. The counter-claims are a bizarre sham; there is no transparency in defending oneself from craziness. The process is best served by allowing the Ethics Board to churn through this process, at $150.00 per hour OR by ALL parties agreeing to drop ALL charges, before September. Voters will mete out punishment, if any, at the polls.
Goddess of Truth August 15, 2012 at 05:41 PM
Dough - Sadly, voters have little influence over the CEO of the CIty. Mayor and Council seem to have been misled regarding the true intent of this investigation, If I had cut a shady deal, I would be more than happy to spend your money punishing the one that told you about it. Although, I still feel as though AB violated exec session confidentiality.
Needmore Dough August 15, 2012 at 06:01 PM
WE have a CEO in the 'wood?
Kerry August 15, 2012 at 06:14 PM
The City of Dunwoody is holding a Government 101 educational series which will be held weekly beginning Sept. 25th and running through Nov. 13th. Space is limited so sign up early. I bring this up only to point out that many would benefit by attending. Based on many comments I read here and other posts it is obvious that the majority of our citizens do not understand the inner workings, processes and procedures elected and appointed officials must follow. While there are some aspects of government that are complex, such as we are experiencing with the current Ethics process, and there are many processes that are simple and straight forward. The challenge is the average citizen who has never stepped foot in City Hall has no working knowledge of which is which. Now, to add clarity to one point, the Wilson Report was released as it was not a product connected to a specific ethics charge. The City retained Mr. Wilson to conduct an investigation. He provided the Mayor with a Summary Report, which the Mayor then provided to Council. It was from that report that Council elected to then file a formal Ethics Charge against Ms. Bonser. And the City was obligated to release that report under the Freedom of Information Act if requested to do so.
Milton Friedman August 15, 2012 at 07:32 PM
GoT - I am not clear on your statement, "If I had cut a shady deal, I would be more than happy to spend your money punishing the one that told you about it." What shady deal are you referring to? If it is aimed at Project Renaissance then you are misguided as they is nothing "shady" on this transaction, other than Ms. Bonser's initial attempt at derailing the transaction by leaking the information. I do agree with you that Ms. Bonser definitely violated her oath of office and duties by disclosing information from Executive Session. I would further state she owes it to this community to save us from additional expense by doing the right thing and resigning.
Milton Friedman August 15, 2012 at 08:17 PM
Jason - here's something I'd like for you to consider, as I believe the interested parties would not respond to a private citizen, but may be more responsive to someone in the news media. The letter mentioned in the recent Crier article, specifically Mr. Mathew’s letter to the Ethics Board dated August 7th, was obviously leaked. This letter was in response to the letter submitted to the Ethics Board by the individual who is the source of information provided to Bob Lundsten regarding Ms. Bonser discussing information from the Feb 3rd Executive Session. Mr. Mathew's letter was not released to the Crier under the Freedom of Information Act, as I know other media have requested copies only to be informed it is not available under the FOI. The only entities that should have that letter are Mr. Mathews, Ms. Bonser and the Ethics Board. The fact that it was "leaked" is telling. I suspect this leak was put forth to get ahead of the Brucker letter in an attempt to discredit Ms. Brucker. Statements by Mr. Mathews in his letter such as, "“Lundsten engaged counsel, who presumably wrote Ms. Brucker’s ‘statement’,” is an example. Jason, perhaps you could contact Mr. Mathews, Mr. and Mrs. Bonser, and Sharon Lowery (City Clerk) and confirm if any of them shared a copy of that letter with The Crier. Then contact Dick Williams and ask him if Brian Bonser visited him in his office between August 7th and August 10th and if they discussed the letter. That's the story!
Jason Massad August 16, 2012 at 12:02 AM
I am reporting on that now, Milton. The story, barring complications, will run tomorrow.
Michael Caldwell August 16, 2012 at 05:06 PM
"That document was not a product of any investigation and therefore is not subject to the provisions of the ethics code as it related to open records." Did he really SAY that about the Wilson report? How is the Wilson Investigative Report "NOT A PRODUCT OF ANY INVESTIGATION." Did I miss something? Orwellian double-speak ? I rarely agree with him, but Jerry Weber is absolutely right. If we err, it should be to release more, not less information to the public (except confidential information such as individuals' medical information). The Freedom of Information Act applies only to federal agencies and documents --not city governments. The Georgia Open Records Act, applies to the release of documents by state and local governments and is considerably broader and more powerful an instrument for creating government in the sunshine than is the federal law. I doubt that the Open Meetings Act permitted the discussion of the land deals in an executive session, and whether there was any violation of Executive Session rules. The accusation that Dr. Bonser "violated her oath of office" is over the top! At worst, both sets of parties --Dr. Bonser, the other Council Members and the Mayor-- misunderstood the Open Meetings Act and misapplied Executive Sessions rules. Yet this dueling charge tempest-in-a-teapot will have cost us close to $100K! This is a black eye for us all. Drop all the charges and make BOTH sides attend Government 101 Government Sunshine Law classes!
Michael Caldwell August 16, 2012 at 05:09 PM
If the Wilson report was "not the product of any investigation," then what did we pay Mr. Wilson $50,000 for? Off the cuff remarks about half-baked conclusions drawn from cursory conversations and an utter absence of appropriate follow-up? I'm not saying that this is what the report was. I really don't know, but I do have my suspicions about it. If what Ms. Bonser writes concerning Mr. Wilson's investigative process is accurate, the City owes both her and our former City Attorney an apology, and Mr. Wilson should return his fee.
Goddess of Truth August 16, 2012 at 05:25 PM
Milton - The shady deal i was referring to.......Project Renaissance appeared to have been negotiated (and vendor selected) prior to exploratory discussions or RFP process. Dough - A City Manager is a CEO.
Kerry August 16, 2012 at 06:05 PM
"Michael" - what I wrote was "....the Wilson Report was released as it was not a product connected to a specific ethics charge." I didn't write, as you quote, "that it wasn't the product of any investigation". So, if you are going to quote me, please have the courtesy to quote exactly what I wrote. The fact is there was no ethics charge at that point! There was only the question as to who, if any, of our elected officials or staff present in that meeting, leaked information. Hence the commissioning of the investigation. The ethics charge against Mr. Anderson and Ms. Bonser were a result of that report. And for additional clarity, it is my understanding the report that was released is just a Summary Report. It does not contain all evidence and documentation that has been submitted to the Ethics Board. What I wrote I believe to be factually accurate as it is what was explained to me by our City attorney. Feel free to consult with him if you disagree.
Michael Caldwell August 16, 2012 at 06:20 PM
Kerry, my comments were not in response to what you wrote at all. I wasn't quoting you. my comment was in response to the quote from the City spokesperson. Here is the entire quote: Bob Mullen, city spokesman, had this to say about the decision to stop releasing records related to the ethics review: "There were several documents released related to the leak of confidential information from a City Council executive session. The first document was the investigation report by Bob Wilson of Wilson, Morton & Downs that the City ordered," he said. "That document was not a product of any investigation and therefore is not subject to the provisions of the ethics code as it related to open records."
Kerry August 16, 2012 at 07:03 PM
Thanks for clarifying that Michael. I can see why you wrote what you did as Mr. Mullen's comment is not clear. He would have been better off to point out that it (the report) being a product not tied to a specific existing ethics charge, which is what I was attempting to clarify. I know it may seem to some a nuance, but is significantly different from a legal perspective.
Truthfully August 16, 2012 at 07:37 PM
When you conduct an "investigation" into a possible violation of city ordinances or rules, you are determining whether an ethics violation occurred and whether chargew would be brought under the ethics rules or, perhaps, even more serious ones. As Caldwell points out this is stupefyingly Orwellian and a big wast of time and money further demonstrating even more incompetence than originally occurred here.
Milton Friedman August 17, 2012 at 01:28 AM
I respectfully disagree. The process is neither "stupefyingly Orwellian", nor a waste of money. I will grant you that it is unfortunate that the City is having to spend the money, but it is an unfortunate but necessary expenditure for several reasons. First, it ensures the taxpayer that any conduct by an appointed or elected official deemed to be inappropriate will be investigated, with ethics charges placed if the investigation provides sufficient evidence for Council to proceed with an ethics charge. Second, given their oath o office they have no choice but to pursue this course given the way the current municipal code for ethics is written. To not perform to the code would itself be an ethics violation.
Jason Massad August 17, 2012 at 08:38 AM
First, thanks for your comment, Michael. There is a high level of discourse on this thread and I think that's great for readers who want to dig into this issue. Plus, I've read my fill of chicken stories for now. As it relates to the city's ethics code, Kerry correctly pointed out that nothing (including the investigation) is shielded until after an ethics complaint is filed. (As I've read in muni code and has been explained to me) However, what I think is germane to this discussion is that the state open records law arguably protects all investigative materials regardless of a formal ethics complaint (which is a city process.) This opens up a whole new set of legal standards that were eventually invoked by the city to shield a response by Bonser. Weber argues that under that interpretation, all of the investigation could have been shielded under the state's open-record exception. I'm not saying that's right - it's an informed opinion - but there are many ways to skin a cat, as I think we are seeing.
Rob August 21, 2012 at 07:03 PM
Looks like the spammer here has made another news agency shut down comments on their pages from his endless drivel and childish rants. Patch, I`m afraid you will be force to do the same soon as well.

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