Loophole enabled commissioner’s firm to do business with county

When Bert Nasuti won a seat on Gwinnett’s county commission in 2002, his law firm stopped getting new legal work from the county.

Then-commission chairman Wayne Hill believed it would be a conflict of interest.

But four months after Hill left office, the board – led by another commissioner with close connections to Nasuti’s law firm – voted to allow the firm to work for the county again. The commissioners used an exception in the county’s ethics code to make it happen, deciding in the waning minutes of a marathon meeting that it was in the “best interest” of Gwinnett County to permit the hiring of Nasuti’s firm.

Missing from that 2005 public meeting – and from all public records relating to the matter – is an explanation of why the county had to authorize the hiring of a sitting commissioner’s law firm despite the availability of other law firms in Gwinnett.

In the nearly four years after that vote, the law firm Thompson O’Brien Kemp & Nasuti was paid $750,000 by the county, according to financial data obtained by The Atlanta Journal-Constitution.

An AJC investigation three years ago exposed corruption at high levels of county government and touched off the scandals that have beset Gwinnett ever since — two of Nasuti’s fellow commissioners have been indicted, and the chairman resigned to avoid indictment. Nasuti has not been implicated in any crimes in connection with his two terms on the commission.

The latest indictments in the county — of then-Commissioner Shirley Lasseter and a businessman who bribed her — prompted the AJC to dig deeper into the commission’s activities during the 2000s. It was this inquiry by the newspaper that raised questions about the county awarding legal work to Nasuti’s firm. But if the relationship was questionable, it was not illegal under Georgia law.

Nasuti, part-owner of the law firm, declined to grant an interview to the AJC, citing attorney-client privilege, but he responded by email to questions sent by the newspaper.

He decided, he wrote, to “wall myself off from the firm’s work for the county, both at the firm and as a member of the [commission].”

The commission’s decision to award new business to his firm was “reasonable” because the firm had worked for the county for years and “produced exemplary results.”

“I don’t know how anything could have been more transparent and above board,” Nasuti wrote.

Business connections

Hill said he was “a little bit surprised” that the county began awarding new business to Nasuti’s firm after Hill left the commission at the end of 2004.

“I probably wouldn’t have agreed with the decision,” Hill said. “But I didn’t get a vote.”

Nasuti, who left office in 2010, abstained from the vote and said he did not steer the work to his firm.

The commissioner who made the motion for the vote, Kevin Kenerly, declined to comment through his attorney, Patrick McDonough.

Kenerly has been indicted on bribery and other public corruption charges. His criminal charges revolve around his connection to Gwinnett developer David Jenkins.

But the AJC has found that Kenerly also had ties to Nasuti’s law partner, J. Patrick “Pat” O’Brien, who did most of the firm’s legal work for Gwinnett’s government.

Kenerly was listed as the CEO of a corporation named “C.U. Carfinders, Inc.”; O’Brien was listed as the business’s registered agent, according to Secretary of State records.

That corporation was created in August 2004 – eight months before Kenerly took the lead on the commission’s vote to authorize more county work for O’Brien and his law firm.

But the two men have closer business connections.

Both Kenerly and O’Brien were listed as managers of a corporation used to buy land in Lilburn in 2002, public records show.

Then, in July 2003, when Kenerly took out a nearly $2 million loan, a corporation that listed O’Brien as its president put down a 12.6-acre tract as collateral.

“Pat O’Brien was one of Kevin Kenerly’s attorneys,” said former commissioner Marcia Neaton, who was on the board when the commissioners first discussed whether Nasuti’s firm should be allowed to work for the county. “I thought to myself, ‘Well, if there’s conflict with anybody on the board, it would be with Kevin.”

O’Brien declined to comment. One of his partners, Bret T. Thrasher, said the firm could not respond because of attorney-client privilege and only Gwinnett could waive the privilege.

The AJC asked the county to do so, but it did not respond.

‘It would be a conflict’

Nasuti’s firm had been doing business with the county since 1994, but Nasuti’s election in 2002 made the relationship suddenly awkward.

“I just didn’t think it was proper,” Hill said. “We just felt like it would be a conflict … Part of it was to protect Bert as much as anything. He ought to have known that, too.”

Nasuti, however, says he was not aware such a conversation took place among county officials around the time of his election.

“I’m not aware of any decision by anyone to assign or not assign cases to the firm after I came into office,” he wrote. “The decision, if there was one, was not imparted to me in any formal or informal way.”

Nasuti also said he didn’t weigh in on conversations that led to his law firm getting more county work in 2005.

“I did not lobby any of my fellow BOC members or advocate relating to the agenda item,” he wrote.

Neaton, however, recalled that Nasuti made it clear after he took office in 2003 that he wanted his firm to keep getting county work.

“He wanted them to stay in it,” she said. “He just kept repeating that he didn’t have anything to do with county stuff – that that was all Pat O’Brien.”

When Nasuti took office, his firm was already working on several Gwinnett cases. But the county decided that Thompson O’Brien would not get any new legal work.

It’s not clear how the decision came about – or which officials, other than Hill, were involved in the decision. The board did not vote on it, and the county did not document it.

But it appears that O’Brien, Nasuti’s partner, knew that the flow of work had been restricted; the decision sparked a running joke between O’Brien and Hill, Hill said.

“He used to tell me it’s the only time he ever got fired, when I wouldn’t let him work for the county,” the former chairman said.

Yet the firm still earned nearly $100,000 handling old cases over the two and a half years that it couldn’t work on new ones, according to financial data obtained by the AJC.

The issue resurfaced in January 2004, when Nasuti’s partners, O’Brien and Thrasher, sent then-county administrator Charlotte Nash a letter about working for the county.

The county refused to turn over the letter, which is referenced in another county document, citing attorney-client privilege.

Nash, now the commission’s chairwoman, said she did not recall what the letter said. “And I’m not attempting to go back and look at any copies of letters or anything,” she said.

Though Nash can’t recall what she did after receiving the letter, she said the county’s position did not change while Hill was in office.

Two legal opinions

Thompson O’Brien did not drop the issue, though. It sought a legal opinion from another law firm, Gambrell & Stolz, about whether the relationship presented a conflict of interest for Nasuti.

Two Gambrell & Stolz attorneys responded in August 2004, saying they could not find any case law or ethical opinions that directly addressed the issue and, therefore, “cannot offer a definitive opinion.”

But the attorneys also said the arrangement would “probably not” violate Gwinnett County’s ethics ordinance or any other pertinent rules, as long as Nasuti took some precautions.

Wayne Hill and two other commissioners left office at the end of 2004, resulting in a dramatically different board at the start of 2005. Nash also retired around the same time.

Within three months, the wheels were set in motion to bring Nasuti’s law firm back into the fold.

Then-County Administrator Jock Connell solicited a legal opinion from the Association County Commissioners of Georgia about whether the relationship represented a conflict of interest.

The ACCG response was similar to that of Gambrell & Stolz: the arrangement was not expressly prohibited or allowed, and Nasuti needed to take some precautions to avoid a conflict.

Back in the fold

By March 2005, Thompson O’Brien’s legal work for the county dried up; its final case was closed, county records show.

The next month, on April 26, 2005, the board voted to let Nasuti’s firm get legal work again.

The vote came in the last 90 seconds of a nearly five-hour meeting, which one exhausted commissioner described as a “marathon,” according to a review of the videotape of the meeting. The commission devoted 45 seconds of that time to the vote for Nasuti’s law firm. According to county records, the meeting began at 7 p.m., so the vote on the law firm would have taken place near midnight.

In the video, Nasuti leaves the room. He does not inform the audience why.

Kenerly and the three new board members then unanimously vote in favor of the arrangement.

An exception in Gwinnett’s ethics code says that a county official may engage in business with the county if the commission, at a regular public meeting, determines that such engagement is “in the best interest of the county” and votes to authorize the arrangement.

That vote may have been the only time the county has used that exception in its ethics ordinance. In response to an Open Records Act request, the county could not produce any other instances the exception was invoked.

A week later, O’Brien and two others who lived at an address in Lilburn, Margaret O’Brien and Evan O’Brien, donated a combined $6,000 to Kenerly’s campaign, according to campaign contribution records. Patrick and Margaret O’Brien, identified as a housewife, donated another $4,000 combined three months later.

The same three combined to donate $4,500 to Nasuti’s campaign in September 2005.

During the April 2005 meeting, none of the commissioners explained why they needed to authorize the hiring of Nasuti’s firm when other law firms in Gwinnett were available.

The closest the county came to laying out such an argument is a memo from former County Attorney Karen Thomas, who asked the board to vote on the matter.

She wrote that, since Nasuti took office, Thompson O’Brien had “not been associated on any new litigation matters with the county. However, during this time, the firm has continued to successfully represent the county on several cases that were pending at the time Commissioner Nasuti was elected. It would be beneficial to the county to have the option to continue to utilize the expertise of the firm.”

The legal work given to Nasuti’s firm, and other law firms, is not awarded through a competitive selection process. The county attorney has the discretion to give out such work, which is not uncommon.

Both legal opinions on the issue agreed that, if the board approved the arrangement, Nasuti should take several precautions. One of them was for Nasuti to fully disclose his financial relationship with his law firm.

“Specifically, Mr. Nasuti must fully disclose the nature of his relationship to the firm and his interest in any payments made by the county to the firm,” the Gambrell & Stolz letter stated.

When the AJC filed a request for a record of any such disclosure, the county said it had no such record.

Nasuti contends that numerous public records served as his disclosure for that matter, including annual financial disclosure filings that reported his equity share in the firm, which he said is less than 10 percent. The annual reports are filed by all elected officials.

Thomas now works as a deputy city attorney for Atlanta. She declined to comment recently when reached by phone. Just as Nasuti and his law partner did – and just as the county did with the 2004 letter from Nasuti’s firm – she cited attorney-client privilege.

Once Nasuti’s firm was voted back into the county fold, it got a new case five months later. It got another three months after that, according to data provided by the county.

Over the next three and a half years, the county paid the firm $750,000.

But the law firm now finds itself in a similar position; its county work has dried up.

Thompson O’Brien Kemp & Nasuti hasn’t received any money from the county since November 2008, financial records show. When asked why, the county did not respond.

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