“Until we have a better relationship between private performance and the public truth, as was demonstrated with Watergate, we as the public are absolutely right to remain suspicious, contemptuous even, of the secrecy and the misinformation which is the digest of our news.
– Author John le Carre (circa 1970s, in reference to the Watergate affair)
Time after time, it is proven that the cover-up of something that someone did wrong always leads to something worse when people start engaging in cover-up behavior. It was the case of former President Nixon and Watergate…it is the case of former Speaker of the House Dennis Hastert and his attempted pay-off of an extortionist who accused Hastert of molesting him back when Hastert was a high school wrestling coach in Illinois.
Now, within the City of Brookhaven, we have the exposure of a cover-up of, not only unethical conduct by former Mayor J Max Davis (who is also a current candidate for Georgia State House District 80), but also unethical and, potentially, deliberate engagement of illegal conduct by Brookhaven’s contracted City Attorney, Tom Kurrie.
Since the first story PV issued on the “Lysol incident,” we’ve heard people remark to us things like “You got nothing. No one isn’t going to not vote for someone over spraying a can of Lysol on someone…” and the like.
And…those people might have been right…had it not been for “something” being triggered in Brookhaven City Attorney Tom Kurrie’s mind that caused him to release a whole slew of new documents last Friday, June 12, in relation to this “incident.” These documents reveal a whole ‘nother picture of things that went on under the mayorship of J Max Davis.
Perhaps Mr. Kurrie thought that he could absolve himself of any of his acts to cover-up for Davis if he just released a bunch of documents and allowed the news media to, hopefully, for his sake, just focus on the head-butting between J Max Davis and City Manager Marie Garrett and write stories about that. Other media outlets may get distracted and focus on that; we won’t.
Brookhaven’s Code of Ethics (“BCOE”)
On the City of Brookhaven’s website, they provide this PDF for the City’s Code of Ethics. Note that it was signed by Tom Kurrie, J Max Davis, and City Clerk Susan Hiott, all back in May 2014.
Note that on Page 1, towards the bottom, under Definitions, Section 2.401(b) states the following: “City Council member shall be any person who is an elected member of the City Council, including the Mayor.”
Then, in Paragraph (g), it defines the following: “Members shall include City Councilmembers and Appointees.”
So, according to the City of Brookhaven’s own Code of Ethics, the Mayor is a Member.
Under Sec 2.402-Prohibitions(b) (Page 2 of the PDF, 2nd Paragraph), last sentence: “Members shall not direct the activities of City staff, interfere with the day-to-day administrative functions of the City or the professional duties of the City staff, nor impair the ability of City staff to implement City Council policy decisions.”
At the time of the Lysol incident back in February 2015, why was Mayor J Max Davis even IN the office of City staff while they were engaging in their administrative functions? When we get to some of the documentation provided by Kurrie, you will see the need to ask that question…because interfering with the day-to-day administrative functions or the professional duties of the City staff is not only NOT in his job description, but is specifically prohibited by the very Code of Ethics HE SIGNED into being.
And why did City Attorney Tom Kurrie completely ignore this potential violation by Davis of the BCOE prohibition on any Member’s interference in City operations? Why? Well, because Kurrie apparently believed his contract with the City of Brookhaven required him to cover the ass of Davis as opposed to protect the legal entity for which he was contracted with to provide legal counsel.
It is not just the theoretical opinion of PV that Kurrie’s responsibility is to the City first, but it is clearly laid-out in Georgia State Bar Rules under Rule 1.13 Organization As Client: “If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization.”
The “organization” in this matter is the legal entity known as the City of Brookhaven. (We’ll come back to Kurrie’s part of the cover-up shortly.)
Reading further into the BCOE, on Page 4, under (f), Use of Public Property, it states the following: “A Member shall not use City property of any kind for other than officially approved activities, nor shall he or she direct City staff to use such property for these purposes.”
Here is a PDF snapshot of a picture that is on J Max Davis’s campaign website (look at the photo on the far right).
Here is that photo when you actually click the photo to see it more clearly: JMax3 (Note the two Brookhaven patrol cars in Davis’s driveway…)
Did the Brookhaven City Council specifically authorize J Max Davis to direct/ask two City of Brookhaven police officers to drive their City-owned vehicles, and direct them to pose for a picture at Davis’s house for political campaign purposes?
Unless now-Mayor Rebecca Chase Williams, Councilmember Bates Mattison, and the other two Members of the City Council would like to publicly state that they, as a City Council, authorized Davis to direct those two police officers to use City property for political campaign purposes, it would more appear that the former Mayor, while still being Mayor, knowingly violated BCOE Section 2.402(g) that specifically prohibited him from using City property (and City personnel) for an unauthorized, unethical use.
And, if, per chance, J Max Davis consulted with the Brookhaven Police Chief for his permission to re-task two police officers to “help-out” Davis for his campaign photo-op, that Police Chief is in violation of the State Ethics Act law that prohibits contributions from public agencies to political campaigns in Georgia.
Regardless of whether Davis got permission by the City Council or not, his campaign is in violation of knowingly accepting such a contribution (violating OCGA 21-5-30.2(c) – Contributions by public agencies) to make him “look good.”
Some Documents From Kurrie
There were 8 different documents sent last Friday from Kurrie. For the moment, PV will focus on 4 of these documents:
Memo to file by (City Manager) Marie Garrett to (HR Director) Rick Stone
Investigation-Report-Notes.pdf (Notes by Tom Kurrie about his investigation efforts into the Lysol incident)
Investigation-Report.pdf (Report issued by Kurrie on June 12)
ORR2015-126Megan-Redacted.pdf (44 pages of internal communications in response to various Open Records Requests by media)
In that last PDF listed, there is a copy of a statement (on page 7 of the PDF) by (presumably) the City in response to news reports dating back to mid-May regarding the Lysol incident:
“May 14, 2015. Today, the Atlanta Journal Constitution reported, that a spokesperson for the City stated that an employee has accused the Mayor of sexual harassment and that the city attorney was investigating a sexual harassment claim. This statement is in error. City Attorney, Tom Kurrie, relayed to the AJC reporter that the spokesperson had not spoken to him prior to making the statement. Mr. Kurrie told the reporter, ‘There is no investigation of sexual harassment being conducted by the City of Brookhaven. Furthermore, there has been no claim or complaint filed by anyone, employee or otherwise, alleging sexual harassment by the Mayor.’ ”
Point of information: This Press Release does NOT appear on the City of Brookhaven website of official Press Releases (as of this moment). So…that small matter, combined with the fact that contained within the Megan-Redacted document, there is a note from 11-Alive reporter Addie Haney that “We just got the below press release from the Mayor himself…” points to the premise that this May 14th press release was conceived and contrived as a political instrument by Mayor Max Davis himself, in conjunction with Tom Kurrie, to tamp down on the media brushfires that had sprung-up in Mid-May.
Now…PV wishes to focus your attention on Kurrie’s statement to the media back on May 14, 2015: “There is no investigation of sexual harassment being conducted by the City of Brookhaven. Furthermore, there has been no claim or complaint filed by anyone, employee or otherwise, alleging sexual harassment by the Mayor.”
In examining Kurrie’s own documented notes of the Investigation, on Page 2, under the section noting the interview on April 28, 2015 that he and Rick Stone had with Employee 2, Kurrie writes: “She said that on February 23, 3015, the Mayor sprayed Lysol to the area of Employee 1’s buttocks in Employee 2’s office…She said it was an act that was unprofessional and disrespectful and she was embarrassed and humiliated. She said she considered the Mayor’s action to be sexual harassment.” [emphasis added]
AND…what did Kurrie subsequently claim in writing on May 14th? “Furthermore, there has been no claim or complaint filed by anyone, employee or otherwise, alleging sexual harassment by the Mayor.”
Now, some of you lawyer types may wish to argue the finer points of “Well….what Kurrie claimed was that there had been no claim or complaint “filed” by anyone alleging sexual harassment…”. Good...you lawyer-types hold that thought for a moment.
Some of you lawyer types will disagree, but PV alleges Kurrie knowingly violated OCGA 16-10-20, the False statements and writings, concealment of facts, et al. Statute in that public statement he made. That statute is pretty broad, and looks to the INTENT of the act, not just the act of misrepresenting the truth: “A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry…”
The decision of whether Kurrie violated OCGA 16-10-20 should be taken-up by a jury of 12 people, not a couple of city-lawyers playing with the work lives of city employees in a smoke-filled back room.
Kurrie wrote it in his own notes that Employee 2 had said she considered the Mayor’s action to be sexual harassment. That is an oral claim of “sexual harassment.” Kurrie sought to protect J Max Davis’s future political aspirations for State House 80 by engaging in a misrepresentation of someone’s claim that Davis did, in fact, engage in sexual harassment. Kurrie DOCUMENTED that claim!!! And then he ignored what he wrote about Employee 2’s statement to him and Rick Stone.
With a Mayor repeatedly, apparently, over the course of a couple of years, violating the BCOE’s prohibitions on his interfering with the duties of City employees, and never getting called-out for it, City employees were, understandably, walking on eggshells regarding their employment, and likely hesitant to officially “file” anything.
Because when you have the Mayor conspiring with the City Attorney to conceal unethical conduct of the Mayor, you have a situation in which employees can only be in fear for their jobs, lest you have an arrogant, immature Mayor engaging in some kind of acts to fabricate evidence against an employee he doesn’t like, and he could influence other city council Members with lies to turn them against the City employee.
When PV says “repeatedly,” PV can point to the Memo from Marie Garrett to Rick Stone in which Garrett refers to the time that Mike Hassinger’s work was being interfered with by Mayor J Max (3rd paragraph of Memo): “When Mike Hassinger was here serving as the Vendor for Communications, he [Mayor Davis] berated me in executive session because I brought to his attention and repeated even what Mike told me that the Mayor was directing his work. This is in direct violation to the city’s charter.” (For the record, Hassinger’s employment by the City was in mid-2014.)
So, County Manager Marie Garrett has, at least, read and understood the City’s Code of Ethics, but it is clear that J Max Davis did not care what the Code of Ethics were that he was required to follow. With his faithful City Attorney Henchman agreeing to cover his ass, and cover-up and look the other way whenever Davis violated the Brookhaven Ethics Code, J Max Davis did not need to act as a “Mayor,” but the KING of Brookhaven!
In Tom Kurrie’s Investigation Report issued on June 12, he states the following on the last page, as his final conclusion: “In my opinion, the spraying of the Lysol by the Mayor did not violate Chapter 2, Article XI of the Code of Ordinances of the City of Brookhaven–Code of Ethics, including the charter, any ordinance or policy of the City of Brookhaven nor any law of the State of Georgia.”
Who wants to bet that Tom Kurrie is wrong on that last bit about Davis’s act not being in violation of a law of the State of Georgia? Because there is a law that controls the acts of mayors (and other elected folks) who work for cities and counties: 45-11-4. Unprofessional conduct; misdemeanor; applicability; indictment
PV will leave the reading of that law to those of you who wish to do so, but that law does prescribe steps to take when someone like an elected mayor engages in Malfeasance or Misfeasance in office. Unfortunately, once someone is out of office (as Davis has now resigned his mayorship), that law can no longer be applied (brilliant job, Georgia Legislature! /sarcasm)
What About Tom Kurrie’s Conduct?
Very good question. And, the answer is kind of complicated. On the one hand, perhaps he should have a bar complaint filed against him for engaging in CYA acts to protect Mayor J Max (as opposed to helping protect his true client, the City of Brookhaven), but then this other issue of him potentially making false statements (by the way, it’s not just once) would actually come under a jurisdiction like the DeKalb DA’s office to investigate…or, perhaps the Brookhaven Solicitor’s Office?
Oh, but wait…the Brookhaven Solicitor is, by sheer coincidence, a lawyer who works for the same, exact law firm (Coleman-Talley, LLP) that Tom Kurrie works for. Also, the lawyer, Tim Tanner, also “serves” (wonder what his monthly retainer is?) as Brookhaven’s Assistant City Attorney.
Conflict of Interests
Wow…yes…there will be no justice in the City of Brookhaven as long as you have a lawyer who protects politicians over the needs of his actual Client that is paying him $12,500 per month in retainer (plus whatever other billable hours he is raking the City for), and a lawyer working as City Solicitor and Assistant City Attorney…and both attorneys work for the very…same…law firm.
Ethics…Shmethics. We don’t need no stinkin’ ethics reform in Georgia, do we? Good, good, goooooood job, Brookhaven City Council Members!!! Your stewardship will likely make Vladimir Putin jealous.