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McLendon's earlier response in the ethics case was later rescinded as a public document, despite the fact it had already been disseminated.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

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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