MyAJC Exclusive: What Tim Lee said in August

Email to attorney: Lee confirms you’re on Braves deal

Cobb Commission Chairman Tim Lee secretly hired an attorney to negotiate with the Braves and arrange the public financing for a new stadium — a deal Lee has repeatedly denied making over the past two months because only the county attorney can hire outside legal counsel.

But an email obtained by The Atlanta Journal-Constitution shows that Lee had a message sent to Seyfarth Shaw attorney Dan McRae, saying that his firm was the county’s project and bond counsel on the stadium project. Those jobs are worth up to $4 million.

The Oct. 8, 2013 email originated from a Cobb Chamber account, effectively keeping it out of the county’s system which is subject to the Georgia Open Records Act. Negotiations with the Braves started six days later.

“I am passing on to you the following provided by Chairman Tim Lee on behalf of Cobb County and its entities,” the email says. “The county confirms the attorney-client relationship between it and Seyfarth Shaw as its project counsel/bond counsel for Project Intrepid.”

Project Intrepid was the code name Lee and Brooks Mathis, the Cobb Chamber’s executive vice president of economic development, gave the Braves deal. The AJC received the email last week through an open records request.

Mathis played a key role from the beginning — he found the land for the Braves development, facilitated the initial meeting in July 2013 between Lee and McRae, and authored the email hiring Seyfarth Shaw.

Lee and Mathis last week denied hiring the lawyer, saying McRae was engaged only in an initial advisory role and was not formally hired nor paid.

“Dan McRae was involved as a lawyer for his legal expertise,” Lee wrote in an email to the AJC last week. “He was not promised any payment for the advice he provided, or the role he played. In fact, he was not hired or paid for the work.”

The email from Mathis to McRae does not specify a limited role or how long the arrangement would continue. And in making the deal, Lee unilaterally waived a stated conflict of interest — Seyfarth was representing the Braves’ parent company on an unrelated legal issue in California.

Timothy Terrell, an Emory University law professor who has expertise in professional responsibility, said there is no question that McRae was hired to represent the county.

“You don’t need to have a contract to have a client, and you don’t need to be paid to have a client,” Terrell said. “You can pick up a client by accident at a cocktail party. If a reasonable person thinks that lawyer is in their corner, that’s about all you need.”

The jobs of bond and project counsel were ultimately given to other firms after Cobb County Attorney Deborah Dance was brought into the process. She has said Lee did not have the authority to retain McRae’s firm.

The newspaper reported Aug. 17 that Seyfarth Shaw was named as the county’s bond and project counsel in late versions of a preliminary agreement, called an Memorandum Of Understanding, after McRae spent months working on the project without billing the county for his time.

Lee has denied making an agreement with McRae for that work, and in August told the AJC that McRae wrote his firm into the agreement without the chairman’s consent or knowledge.

Edward Queen, director of Emory’s D. Abbott Turner Program in Ethics and Servant Leadership , said in the August article that Lee’s off-the-books hiring of McRae was either “an issue of incompetence or unethical behavior.” Queen said the email appears to settle that question.

“Public officials have a duty to follow the appropriate procedures. And that’s part of the obligation upon assuming office … and that is an ethical issue,” Queen said. “There are a million ways to say no comment. You don’t lie. Even more importantly, you don’t tell a double lie.

“It’s one thing to say you didn’t know anything about it, it’s even worse to push the blame totally onto someone else.”

The email proving Lee retained McRae is the latest instance of the county’s transparency on stadium issues being questioned.

Braves negotiations were kept secret from the county attorney and Lee’s fellow commissioners until early November, just days before the public was told about the new stadium .

Commissioners had less than two weeks between the MOU being made public and their approval of the document, which sealed the Braves move to Cobb and the $400 million public investment . And when subsequent agreements were negotiated, the county released them at 6 p.m. on the Friday of a holiday weekend, with the commission voting on the proposals the next business day.

William Perry, executive director for Common Cause Georgia, called the email “shocking.”

“This is exactly why our organization has been screaming for transparency in this process,” Perry said. “This really underscores that this deal was signed, sealed and delivered before commissioners other than Tim Lee knew about it.”

McRae and Steven L. Kennedy, managing partner in Seyfarth’s Atlanta office, did not respond to written questions provided by the newspaper last week.

Mathis issued a statement Thursday saying the email “did not assure Mr. McRae (that) he would have any future legal role.”

But it’s unclear if McRae agrees. While he didn’t comment for this story, McRae did take action that resulted in the email becoming public.

Close the books

Lee and McRae’s relationship began to sour sometime over the summer, according to documents reviewed by the newspaper.

In June, McRae expressed frustration to Lee’s secretary that he couldn’t get the chairman on the phone.

“Millie, as you know from my voice mail, I was not able, again, to talk with Chairman Lee,” the email says. “I just need a few minutes on the phone … to close the books on the Braves.”

McRae, or his assistant, left at least four more email messages for Lee in the ensuing days. Lee’s secretary eventually asked in an email: “What do I do about these requests I keep getting from Dan McRae’s office?”

“I thought Deborah (Dance) was going to call him so you didn’t have to,” she wrote in another.

Finally, on July 7, McRae’s office sent Dance an email, asking for a meeting that week. Dance immediately forwarded the message to Lee: “Know anything about this?”

“No, other than he can’t get with me so he is going to you,” Lee replied. “Please see what he wants. We need to keep him in front of us.”

In an interview last week, Dance said she doesn’t know what Lee meant by that last comment. But she did talk to McRae over the phone.

When asked what McRae wanted to talk about, Dance said: “Why he wasn’t selected. That was the concern.

“I know that he obviously had an interest … in participating further,” Dance said. “That didn’t work out for McRae or his firm. I’m sure there were questions he wanted answered, but I didn’t have the answers.”

Dance also said that Lee never pressured her to use McRae’s firm for legal work on the Braves deal.

“The chairman always said to me, you’re on your own to pick who you pick for these duties,” Dance said in the interview.

In August — after McRae talked to Dance and three days after the newspaper’s interview with Lee — McRae sent an email to Dance, Mathis and Lee. There was no message, just the Mathis email hiring Seyfarth Shaw pasted into the body.

Dance said she doesn’t know why McRae sent it.

“It just appeared out of nowhere,” Dance said of the email. “I didn’t ask him for it. I was certainly shocked to receive it because it contained information that I was not privy to.”

Lee was sent a list of 13 questions for this story. He responded that the AJC is “terribly biased” against the Braves deal, but did not provide an answer as to why the email to McRae was delivered by the chamber of commerce.

Lee also sent an email last week to his fellow commissioners, after the AJC contacted each of them for comment.

“It appears the AJC is attempting to write an article to appear this Sunday surrounding the Braves and me,” the email says. “From what I have heard, the writers are making assumptions that are so far from the truth. I ask that if you are choosing for some reason to talk to them, to please speak with me before you do so.”

The McRae email was provided to the newspaper last week, in response to an Open Records Act request for documents exchanged between the attorney and Lee’s public and private email accounts. In all, the newspaper reviewed about 70 pages that had not previously been disclosed.

And one of them could be damaging to Lee’s defense in a pending ethics case.

Ethical issues

Tom Cheek began closely watching Cobb government after he found problems with the Cobb Medical Examiner’s Office investigation into his son’s death. Cheek’s persistent questioning led to an internal audit, and his subsequent complaint to the Georgia Composite Medical Board led to personnel and policy changes in the ME’s office.

Cheek filed an ethics complaint against Lee Aug. 27, based largely on the AJC’s earlier article. The complaint alleges that Lee improperly hired McRae to negotiate with the Braves; was not responsive to an open records request; and improperly used his personal email account to conduct county business.

Lee filed a response to the complaint two weeks ago. In it he repeats what he has told the newspaper — that he never hired McRae and that the attorney never negotiated on behalf of the county.

Cheek said a reporter at the Marietta Daily Journal emailed him for comment on Lee’s response before he knew it was filed.

“It is very frustrating to have learned of the response from the media, and specifically a source that is obviously aligned with the Chamber of Commerce and the chairman,” Cheek said.

Lee, who has had two prior ethics complaints related to the Braves deal filed against him, said he has acted ethically throughout.

“The misreporting by the AJC has been used for political purposes to file baseless ethical charges that the AJC then reports as if they are fact in a never ending circle of false allegations,” Lee said.

The AJC based its August story on some 20 versions of the Braves preliminary agreement passed back and forth between McRae and Braves’ General Counsel Greg Heller.

Dance told the newspaper for that story that she “personally witnessed” McRae negotiating on the county’s behalf. The Braves also acknowledged McRae negotiated “the framework” of the MOU agreement.

Lee’s response to the complaint includes four affidavits, none of which address the underlying complaint that he improperly hired McRae to negotiate with the Braves.

Neither McRae nor any Braves’ official supplied Lee with a sworn statement to back up his claim. Dance provided an affidavit that says it would not be improper for Lee to seek advice from an outside attorney, but was silent as to whether Lee authorized McRae to negotiate the MOU.

In an interview last week, Dance said that she still believes McRae negotiated for the county.

Included in the newly received documents is a 20-page sales pitch that McRae sent to Lee in February, explaining the legal services Seyfarth Shaw could provide for Cobb on the Braves project. McRae wrote that Seyfarth’s understanding of the issues in the Braves deal is “unsurpassed, since we had a large part in the negotiations of the MOU on behalf of the county.

“In fact, Seyfarth has already researched many of the issues that will come up in the negotiation and finalization” of later agreements, the document says.

Instead of Seyfarth Shaw, Dance chose the Thompson Hine firm to negotiate later agreements with the Braves. The firm was paid $250,000 for that work. And those contracts were negotiated in the exact manner used by McRae and Heller to produce the preliminary agreement. Like the MOU, each subsequent agreement had to be approved by the commission.

“I am troubled and concerned about what appears to have happened and I believe it requires further investigation,” Cobb Commissioner Bob Ott said. “However, since there is an outstanding ethics complaint, I believe it is prudent to let the ethics board go through its process first.”

Support real journalism. Support local journalism. Subscribe to The Atlanta Journal-Constitution today. See offers.

Your subscription to the Atlanta Journal-Constitution funds in-depth reporting and investigations that keep you informed. Thank you for supporting real journalism.