The AJC has learned that Atlanta officials hid legal billing records for the bribery investigation in the account of a different case and directed the creation of new documents resembling invoices to satisfy the AJC’s records request. Experts say the actions ranged from unethical to potentially criminal.
In an earlier statement, Berry said the documents provided to the AJC accurately reflected the billing hours and amounts related to the bribery investigation from Baker Donelson, an outside law firm the city hired for help with the investigation.
» Read Atlanta City Attorney Jeremy Berry's statement to the AJC
“The City has provided all of the records requested by the AJC and no violation of the Open Records Act, or any other law, has occurred,” Berry said in his statement.
Berry said the open records act allows the city to provide summaries and compilations of records in the interest of clarity and efficiency, and said he had done so “for the newspaper’s convenience.” The AJC and other news organizations do, at times, accept summaries from agencies. But they are typically disclosed as such.
The law states that in any instance in which an agency decides to withhold an existing record, it “shall notify the requester of the specific legal authority exempting the requested record or records.”
The documents the city provided had the same formatting as actual invoices, and Berry never disclosed that they were created solely to satisfy the AJC’s record request.
Another state law prohibits forging, altering or falsifying public records, and makes such conduct punishable “by imprisonment and labor in the penitentiary for not less than two years nor more than ten years.”
"I would say these appear to be felonies," said Clark Cunningham, a Georgia State University professor of law and ethics, who reviewed the billing records for the AJC. "The question is whether the city can adequately come up with justifications."
Cunningham said the open records act required Berry to provide the actual invoices or disclose the reason for withholding them. The act does allow leeway for responses made in “good faith.”
"Of course what the city produced was not a compilation or summary but a series of what were intended to be taken as original monthly invoices, so described in Berry's cover letter," Cunningham said. "The apparent intent was not to be 'convenient' to the AJC but to deceive the AJC and ultimately the public."
Berry was appointed city attorney by former Mayor Kasim Reed in April 2017 and has continued to serve under Reed's successor, Mayor Keisha Lance Bottoms, who has vowed to make transparency and ethics reform a hallmark of her administration. Last month, she also expressed her desire for a better relationship with the media, which sparred frequently with Reed.
Now, just two months into her term, Bottoms faces questions about her chief legal advisor. Both Reed and Bottoms declined interview requests.
"This calls into question the honesty, openness and legality of our own Law Department," said City Council President Felicia Moore. "They're the ones we go to for opinions on open records and to make sure we're in compliance with state law. If they're violating state law themselves by creating false documents, Oh Lord."
Whistleblower case concealed bribery billing
At any given moment, the city contracts with dozens of outside law firms for work on cases that sometimes require a high degree of specialization. Baker Donelson, a national firm with offices in Atlanta, was already working on cases for the city when it was hired to help produce documents the Department of Justice subpoenaed in the bribery investigation.
The city did not create a separate account for invoicing the new work, as required by city guidelines. Berry said that decision was made before he became city attorney and was done to protect the integrity of the federal investigation. At the time, the city did not know who the investigation was targeting or how wide the net was cast, Berry said.
"To reduce the chance of someone internal scouring the invoices or tipping off someone regarding to the scope, nature, or subjects of the investigation, the decision was made to use previous legal matters to bill work for the DOJ investigation," said Berry.
Berry said the guidelines requiring new legal matters to be billed separately were just that: guidelines that the city attorney “can change for any reason at any time and without any approval or input from anyone else.”
The previous legal matter involved a whistleblower lawsuit from a former Watershed Department manager, Chris Harris, who alleged the city had fired him after he reported employees for fraud and theft. Baker Donelson represented the city in the case.
The combined billing, however, created a dilemma for Berry when the AJC in July 2017 requested invoices for legal work on the bribery investigation.
“The AJC requested billing records submitted by Baker Donelson for work related to the DOJ investigation,” Berry said in a statement. “Such records did not exist in a discrete record. Therefore, the responsive billing records were compiled from their various locations and provided to the AJC. No time entry was altered in any way.”
At no time — until confronted by the AJC — did Berry, or any other city representative, disclose that the documents weren't actual invoices. The AJC relied on the records described as invoices to publish a story Nov. 15 headlined, "Atlanta bribery probe costs taxpayers $1.4 million — and counting."
Gary Barnes, the managing shareholder of Baker Donelson's Atlanta office, initially said the firm would not comment on client billing matters.
But on Wednesday he acknowledged that the firm compiled the documents that Berry represented as DOJ invoices.
"Again, at its client's request, Baker Donelson accurately compiled only the time entries requested by the Atlanta Journal-Constitution into a composite document which was provided to the media by the City of Atlanta," Barnes said in a statement. "The City of Atlanta desired to respond accurately to the AJC's request, and it is inappropriate for the AJC to suggest now that this submission was inappropriate, a 'city document' or inaccurate. It is none of the above."
In fact, the AJC did not request time entries, but “all invoices submitted to the city of Atlanta by Baker Donelson for work done on behalf of the city in relation to the federal bribery investigation.”
Misleading other branches of government
Cunningham and other experts said the original decision to conceal the bribery-related billing in a pre-existing legal matter was problematic for both the city and Baker Donelson.
It not only concealed the invoices from “internal scouring,” as Berry said, but also potentially from other parts of the government, including the internal auditor, Cunningham said.
“The client is not the city attorney,” Cunningham said. “The client is the City of Atlanta. By disguising the information in this way, this invoice (titled ‘Whistleblower’) misleads the other branches of city government. The city council would have no way of knowing that this is anything other than work on the (‘Whistleblower’) matter.”
A former president of the State Bar of Georgia was critical of the city’s handling of the billing records.
"If you want to segregate billing that can be appropriate, but a better practice is to put it in a general billing account for transparency," said Lester Tate, a Cartersville trial attorney who is also a former chairman of the Georgia Judicial Qualifications Commission.
Tate was skeptical of the city’s contention that employees would have access to the invoices.
“I would expect that the billing invoices would be reviewed only by someone in the city attorney’s office and can’t imagine how anyone would just look through them,” said Tate.
Cunningham said submitting invoices deceptively and creating documents purporting to be “invoices” were potentially criminal acts.
“This is the law, and it says that ‘if any public officer, or any other person shall falsify any record or contract, or falsify any document belonging to any public office, or shall cause, or procure, any of these offenses to be committed …shall be guilty of felony and punished for not less than two years in prison,” he said. “Very straight forward.”
Last month, the AJC became suspicious of the documents Berry provided in November after reviewing additional Baker Donelson invoices titled “Whistleblower Complaint.”
A “Whistleblower” invoice dated April 12, 2017, contained $464,296 worth of legal work and appeared, at first, to have identical itemized fees as the invoice from that same month with the matter “DOJ,” which the city provided to the AJC November.
But a side-by-side comparison of the two invoices revealed irregularities in the those titled “DOJ.” They contained no client/matter number and no invoice number. A record of payment for the invoices titled “DOJ” could also not be identified in the database of city expenditures.
"The idea that they would create false invoices, hand them over and not tell you they are reconstructed strikes me as flat-out unethical," said Kathryn Webb Bradley, a law professor and director of legal ethics at Duke Law School.
Bradley said there are strict rules governing the ethical behavior of lawyers. The State Bar of Georgia, for example, has rules that say it "shall be a violation of professional conduct for a lawyer to … engage in professional conduct involving dishonesty, fraud, deceit, or misrepresentation."
Berry strongly disputed any suggestion that his actions were improper or violated legal ethics codes.
"Nothing that I, the Law Department, the City, or outside counsel did involved or bordered on dishonesty, fraud, deceit, or misrepresentation," he said. Berry also noted that there is an exception for actions taken in good faith.
At the Georgia Bar Media & Judiciary Conference last month, Bottoms, who is also an attorney, was the keynote speaker.
She said every day she meets with her communications staff. The bulk of the conversation involves a records request.
Bottoms promised a new approach in how the city responds to requests for information.
“What I do know,” the mayor said, “is what is done in the dark always comes to light.”
How we got the story
In July 2017, the AJC requested invoices for all Baker Donelson work related to the Atlanta City Hall bribery investigation. Three months later, City Attorney Jeremy Berry produced what he represented were 11 months of the firms invoices with the title “DOJ.” The AJC used the records to publish a story about the legal expenses of the bribery investigation.
In January, the AJC obtained a database containing three years of city expenditures. The AJC noticed several Baker Donelson invoices with the description “Whistleblower Complaint” totaling nearly $1 million.
The AJC requested copies of a few of those invoices.
The itemized fees for the “Whistleblower” invoices seemed identical to the “DOJ” invoices. But while reporters could identify payments in the data for “Whistleblower” invoices, they couldn’t for the ones titled “DOJ.”
Although the “DOJ” invoices were on Baker Donelson letterhead, they lacked invoice numbers and client matter numbers.
After reporters pressed Berry and other city officials for explanations, the city and Baker Donelson acknowledged they had extracted time entries from real invoices and used them to create documents represented as invoices to the AJC.
The AJC also asked legal experts to review the records and statements provided by the city, and assess the city’s compliance with state records laws.