After surviving a request to have the ethics complaint against Cobb Commission Chairman Tim Lee thrown out, west Cobb resident Tom Cheek questioned his only witness — county attorney Deborah Dance — then abruptly decided to drop the case Thursday night.
Cheek’s ethics complaints allege Lee exceeded his authority in hiring an attorney for stadium negotiations with the Atlanta Braves. Cheek also claims Lee was not responsive to his requests for documents related to those negotiations under Georgia’s Open Records Act.
Cheek said his decision to drop the case was based upon two things: Lee’s apology, issued last week, and the ethics board’s decision earlier in the night to dismiss the two complaints over open records.
That left the allegation that Lee improperly hired attorney Dan McRae to negotiate a preliminary agreement with the Braves. Those negotiations eventually led to commissioners agreeing to build the Braves a $622 million stadium. Taxpayers will pay for more than half the stadium’s cost.
“When this complaint was brought, I wrote … that if chairman Lee apologized for his actions and took steps to correct the issues brought forward, I would … drop the complaint,” Cheek told the board. “Chairman Lee … apologized … and I had to make a very difficult decision.”
Lee said after the hearing that he did not violate any laws or codes, but called Cheek’s complaint a “very important issue.”
“In hindsight, it’s always important to look at where we need to improve,” Lee said. “This whole episode will make the county better.”
Cheek said he mainly pursued his complaint because he thought Lee had not been responsive to requests for emails between Lee, the Braves and others involved in the stadium deal’s early discussions.
“It was a surprise to me when the board decided to drop (those) complaints,” Cheek said.
Ethics board chairman Mike Patellis said he was surprised by Cheek’s decision.
“We brought our jammies, we were in it for the long haul,” Patellis said. “I thought he would go all the way with it.”
The board dismissed Cheek’s complaints dealing with the Open Records Act — alleging that Lee was not responsive to his request for documents and that he used private email accounts to skirt the law — under the advice of its attorney Bob Grayson, who said that a court should first make a determination. It would create a problem, Grayson said, if the ethics board determined that there was a violation of the act, and then a court subsequently determined that there was no violation.
The first 90 minutes of the hearing dealt with Lee’s request to have the board reconsider its decision at a preliminary hearing to move forward with the trial-like hearing.
Attorney Ben Mathis, chairman of the Cobb Chamber and a partner in a prominent national law firm, spent more than an hour arguing that the board couldn’t take disciplinary action against Lee for the “appearance of impropriety” because the ethics ordinance says that officials “should” avoid it, not that they “shall” or “must.”
“That is not a proper basis for discipline,” Mathis told the board. “Ladies and gentlemen, your inquiry should end here.”
Mathis called former Gov. Roy Barnes as an expert witness. Barnes testified that the board can’t hold Lee accountable to an “aspirational” standard.
“The professional code for lawyers says you should be courteous to other attorneys,” Barnes said. “But just because you cuss one out, you can’t be disbarred.”
The ethics board voted, 5-1, to deny the motion and move forward with the case.
The portion of Cheek’s complaint dealing with McRae largely mirrors published reports in The Atlanta Journal-Constitution that found Lee hired McRae, a partner with Seyfarth Shaw, to negotiate a preliminary agreement with the Braves without the county attorney’s knowledge or consent. Only the county attorney can hire outside legal counsel.
Lee has denied that McRae negotiated on the county’s behalf, or that he hired him.
But in October, the AJC obtained an email sent from a chamber of commerce account to McRae that says: “I am passing on to you the following provided by Chairman Tim Lee on behalf of Cobb County and its entities. The county confirms the attorney-client relationship between it and Seyfarth Shaw as its project counsel/bond counsel for” the Braves project.
Lee has repeatedly said that McRae only participated in an initial advisory role. The job of project counsel is to negotiate all of the various contracts and agreements necessary for the project to proceed.
Cheek interviewed Dance Thursday, who told the board that she saw McRae negotiating with the Braves and observed him making changes to the preliminary agreement, called a Memorandum of Understanding.
When asked if McRae was the county’s lead negotiator, Dance responded: “I was not present, but I understand that he was.”
When asked if he would have handled his dealings with McRae differently, Lee responded: “We’ll have to look at that.”
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