Bender: Meeting In Which MPA Contract Was Terminated May Have Been Illegal
BLYTHEWOOD – After Blythewood Mayor Bryan Franklin failed to timely turn over documents including texts and emails to MPA Strategies’ attorney Joseph Dickey that Dickey had asked for through a Freedom of Information (FOIA) request, MPA’s owner and CEO Ashley Hunter filed a lawsuit against the Town to shake those documents loose.
Since April, 2021, when the Town hired outside legal counsel David Black with Nexsen Pruet law firm to handle legal matters with MPA, the Town’s ‘other legal and professional’ expenses listed on its monthly online financial report have mushroomed beyond the budgeted amount of $60,000 to $93,929.13. That amount has climbed every month since Black was hired.
The Voice has submitted an FOIA request to the Town for a breakdown of the $93,929.13, since one is not provided on the online report and could possibly include expenses for two other lawsuits the Town was previously involved in.
A Contentious Hiring
After council discussed in the fall of 2020 the possibility of hiring a firm to provide marketing and grant writing services to the Town, the S.C. Municipal Association and the Town’s then Administrator Brian Cook, both of whom were familiar with MPA’s work with other S.C. towns, suggested Hunter’s name.
After council asked Hunter to submit a proposal in December, 2020, the Greater Blythewood Chamber of Commerce also expressed interest in vying for the marketing/grant writing contract. The Town broadened its search for marketing/grant writing services by issuing an RFP (Request for Proposal).
MPA, the chamber and NP Strategies, a wholly owned subsidiary of Nexsen Pruet law firm, responded to the RFP. From then forward, the council and mayor have been consumed by contentious wrangling.
The mayor and Councilman Eddie Baughman wanted to hire the Greater Blythewood Chamber of Commerce. Councilman Sloan Griffin and Donald Brock wanted to hire MPA. Councilman Larry Griffin was initially on the fence until he heard the two applicants’ presentations, then went with MPA, saying that he didn’t think the Chamber had the resources and experience that MPA has.
“I’m looking for the best for the town,” Councilman Larry Griffin said at the January council meeting, questioning the Chamber’s ability to manage a number of separate services.
On Feb. 22, 2021, council voted 3-2 to hire MPA for approximately $48,000 a year to provide marketing and grant writing services, with Franklin and Baughman voting against. That vote was followed by a turbulent contract negotiation that lasted almost two months and involved myriad rumors and accusations concerning Hunter and Brock.
Dickey filed an FOIA request with the Town on April 15, 2021, asking for copies of Franklin’s texts, emails and other documents concerning MPA and Hunter.
The next day, April 16, Franklin signed the contract.
On April 21, Franklin, without council’s consent – as publicly confirmed by former Town Attorney Shannon Burnett at the May 27, 2021, council meeting – approved for Town Administrator Carroll Williamson and Burnett to hire outside counsel David Black to represent the Town pertaining to MPA.
Hunter went to work at town hall on May 1, 2021.
During her first month working with the town, Hunter brought in a $10,000 grant from International Paper Company with another $10,000 to follow a couple of months later, which amounted to almost half the Town’s first-year payout to MPA.
But the FOIA documents requested from Franklin were still outstanding.
Franklin’s FOIA response to MPA was due May 24, 2021. While Franklin announced in the May 24 town council meeting that he turned his devices over to a third party vendor that day for the responsive documents to be scanned and copied, he did not turn those responsive documents over to Dickey on May 24 – the due date – as required by law.
It is a violation of S.C. FOIA to not respond to an FOIA request within the statutorily-required time, according to media attorney Taylor Smith, with Harrison Radeker & Smith law firm in Columbia.
On June 28, 2021, after Franklin’s FOIA response was almost 25 days overdue – not counting weekends and holidays – MPA filed a complaint in the Fifth Judicial Circuit Court of Common Pleas seeking declaratory relief from the Town’s FOIA violation.
“When information is turned over after a lawsuit is served, that usually means prevailing party status is given to the requester which almost assures they will win and their attorney’s fees and costs will be paid by taxpayer money,” Smith said.
Franklin subsequently turned his documents over to Dickey on July 9, 2021, 11 days after MPA filed the FOIA lawsuit.
More missteps
There may have been other missteps in how Town officials handled the termination of the Town’s contract with MPA Strategies in a special called town council meeting on July 20, 2021, according to Jay Bender, media attorney with the S.C. Press Association.
The only business on the agenda at that meeting was an executive session for the stated purpose to “receive legal advice relating to claims and potential claims by and against the Town and other matters covered by attorney-client privilege.”
Following that executive session, council voted to terminate MPA’s contract, an action not listed on the agenda as a reason for going into executive session. Councilman Sloan Griffin made the following motion: “With the advice of our legal counsel and with the health and harmony amongst this council and your office, I am making a motion to execute in accordance with the advice of our attorney, our 60-day opt-out clause in the MPA contract.”
Councilman Eddie Baughman seconded the motion.
Bender said the reason for the executive session was insufficiently specific.
“Since there was nothing on the agenda to indicate a decision would be made to terminate a contract, no vote could be taken on that matter unless notice was given or a vote taken to amend the agenda to act without notice to the public because of exigent circumstances,” Bender said.
No notice had been given nor vote taken to amend the agenda.
In addition, it was disclosed at the special called meeting that Franklin, Town Administrator Carroll Williamson and Town Attorney Shannon Burnett had signed and filed a countersuit against MPA earlier that evening. Three of the five council members – Brock and the two Griffins, the three who had voted to hire MPA – later told The Voice they were not informed that a countersuit was going to be filed against MPA, had not approved it, and had not been asked to vote on it.
“I would think a vote of council would have been necessary,” Bender said, “unless council had previously given authority to the mayor to make the decision.”
It had not.
One other action Bender found possibly illegal about the special called meeting was that the presiding officer, Franklin, was not present at the meeting. He presided virtually via Zoom.
Town ordinance 30.12 (Remote Meeting Attendance and Participation) passed by council a year earlier states, “The council member acting as the presiding officer must be physically present at the meeting.”
“I would think a violation of the ordinance would provide a basis to challenge the action taken,” Bender said.
The only action taken that evening was to terminate MPA’s contract with the Town.
“Bottom line,” Bender concluded, “the executive session was likely illegal, the vote to terminate the contract was likely illegal, and the entire meeting may have been illegal given the ordinance requirement that the presiding officer be present.”
