Atlanta Mayor Keisha Lance Bottoms’ administration is telling the city’s own internal watchdogs that it does not have to grant unfettered access to records as the city’s charter requires.
The claim, made in response to an internal investigation of Bottoms’ hiring of several campaign aides, appears to be unprecedented.
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The struggle between the auditor, the city’s ethics officer and the mayor raises questions about Bottoms’ vow to run one of the most transparent governments in the city’s history, and risks igniting a legal battle that might have to be settled by a judge. It also could undermine the authority of the two city agencies charged with holding public officials accountable, observers said.
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Earlier this year, the City Council called on the auditor and the ethics officer to look into the hires in response to an Atlanta Journal-Constitution investigation. The AJC found the administration had circumvented normal city hiring processes and broke with longstanding political practice by charging taxpayers for transition work her campaign staff performed before Bottoms took office.
Emails obtained exclusively by the AJC reveal the inquiry has created a tense standoff between the auditor and ethics officer, on one side, and the city’s law department on the other.
At issue are two assertions by City Attorney Nina Hickson to justify redacting or delaying production of records to its own in-house watchdogs.
Hickson said providing records to the auditor and ethics officer without redactions could jeopardize attorney-client privileged communications. Hickson also contends that records sought by the auditor and ethics officer could include documents provided to the U.S. Attorney’s Office and imperil the current federal investigation into corruption at City Hall.
At least half a dozen people well-versed in city politics said they couldn’t recall an instance when an administration withheld information sought in an internal investigation based on attorney-client privilege.
Three lawyers interviewed by the AJC said the administration’s arguments were legally dubious.
“Baloney,” said Greg Lisby, a Georgia State University communications professor who is also a lawyer. “You can’t do an audit unless you have access to information. There is no basis for the response they gave.”
Immediately seeking review
In March, the AJC found that six of Bottoms campaign workers were placed on the city’s payroll two weeks before the mayor took office in January 2018, and were paid for work they did during Bottoms’ transition into office.
Experts told the AJC that the personnel moves potentially violated city code and Federal Aviation Administration regulations because the administration used airport revenue to pay a top Bottoms campaign aide, Marva Lewis, who became chief of staff.
A day after the story appeared in the newspaper, the City Council passed a resolution calling on the auditor and ethics officer to conduct an inquiry.
Bottoms vetoed the council’s resolution, deeming it unlawful because it granted the auditor the ability to hire outside lawyers.
The two agencies, who report to independent boards, insisted that they would still investigate without the help of outside legal counsel.
The auditor and ethics officer began by asking the city’s information technology department for the emails of eight current and former city employees.
Within hours, the request found its way to Hickson, the city’s attorney.
“We will need to review the emails before they are released to the Ethics Officer so that attorney-client privilege (sic) information is redacted,” Hickson wrote.
Sengova, the city’s ethics officer, later responded that the ethics office and auditor “are the City,” and that Hickson’s interpretation “has no legal basis.”
Hickson argued that sharing unredacted materials with the auditor and ethics officer could waive the city’s privilege in ongoing legal matters, and could harm the city by allowing outside parties to gain access to privileged information.
But Peter Joy, a law professor and expert in legal ethics at Washington University in St. Louis, doubted that a judge would agree.
The city is the law department’s client and the auditor and ethics officer are all part of the city and not some outside party, Joy said.
“Both the city officials and the city auditor share a common interest in uncovering and eliminating government misconduct,” Joy said. “The documents and communications are staying within the same entity, the city, and they are being used for a common purpose.”
About breaking privilege
The city’s charter says all city officers, employees and contractors “shall allow” the auditor “immediate access” to all city records.
A Bottoms spokesman declined to identify prior instances when the law department withheld information from the auditor citing privilege.
“If we are placed in a position to choose between aiding the authorities in protecting the integrity of their investigation or senselessly exposing information and breaking privilege to satisfy the curiosity of a few individuals, we will always choose the former,” Bottoms spokesman Michael Smith said.
Smith did not identify the individuals to whom he referred or explain how the auditor and ethics officer’s inquiry was related to the federal investigation. The city released a memo from its outside legal counsel that stated the agencies sought documents that could include sensitive communications and endanger the corruption probe.
“If the U.S. Department of Justice cannot require the city to provide unredacted emails, neither can the Ethics Board, City Council or anyone else in the City,” City Attorney Nina Hickson wrote to Ethics Officer Jabu Sengova on March 21. “Production would have to be by court order.”
Sengova told Hickson that she was interfering with her investigation and setting a dangerous precedent.
Hickson responded with another reference to the U.S. Attorney’s Office probe at City Hall.
“Your actions potentially interfere with the pending federal investigation as well as my professional responsibility,” Hickson said.
The request for the emails was made on March 21. City Auditor Amanda Noble didn’t receive any records until May 2. And even then, Noble expressed disappointment.
“The initial files were incomplete and provided in alternative format that was difficult for us to use,” Noble wrote in an email to two City Council members.
About a week later, the auditor and ethics office had received about 8,300 of the 109,000 emails responsive to their request.
Sara Henderson, executive director of government watchdog group Common Cause Georgia, said the fight over access could lead to taxpayers paying costly legal fees. It also illustrates that the auditor and ethics office need more power to investigate potential wrongdoing.
“It’s not the city’s job to protect the federal investigation, it’s the city’s job to make sure that the auditor and ethics officer can do their job in investigating for the city,” Henderson said.
City Council President Felicia Moore said the level of access to records by the auditor and ethics officer may ultimately be decided in court.
“At this point,” Moore said, “both [sides] appear to be pretty entrenched.”
ORIGINAL DOCUMENTS: MARCH 21 EMAILS
ORIGINAL DOCUMENTS: MARCH 25 EMAILS
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