Baughman: I could care less if it (the lawsuit) adds up to $100K per month. We brought it on ourselves.
BLYTHEWOOD – Town Administrator Carroll Williamson informed council during a budget meeting Friday morning that the Town’s outside legal team has advised increasing the Town’s budget for outside legal expenses from $60,000 to $140,000 through the 2022 fiscal year (FY) that ends June 30, 2022.
Outside legal expenses generally have to do with expenses related to lawsuits the Town is involved in.
Those expenses have mushroomed from $25,000 last fiscal year to $60,000 in FY 2022, after Mayor Bryan Franklin authorized the hiring of attorney David Black, with Nexsen Pruet law firm, to handle legal issues with MPA Strategies, a firm council voted 3-2 to hire last February to market the town.
After the increase to $140,000 was proposed on Friday, some council members questioned how much of the outside legal expenses are associated with the MPA Strategies lawsuit against the Town and the Town’s countersuit.
Both Franklin and Town Administrator Carroll Williamson have been mum, refusing to share that information with either council members or The Voice.
How Much Has Town Paid Out?
According to the Town’s online monthly financial reports for outside legal expenses, the Town spent a total of $14,362.00 in April, May and June of FY 2021 and $78,929.13 in FY 2022, for a total of $93,929.13 as of Dec. 31, 2021. These expenses began mounting in April, 2021, the month Black was hired.
In an interview immediately following Friday morning’s meeting, Councilman Rich McKenrick told The Voice he believes that Black is the payee for most of the Town’s outside legal expenses.
“Because they (Franklin and Williamson) won’t release [a breakdown], we have to assume that 100 percent of the $93,929.13 went to David Black [for MPA],” McKenrick said.
The online report is not broken down to show how much the Town spent on each individual lawsuit it is involved with. Besides the MPA lawsuit and the Town’s countersuit, the Town is also involved in two other lawsuits for which it has hired two other outside attorneys – one concerning issues in Cobblestone Park and one for issues in the Abney Hills neighborhood.
Williamson said Friday that, going forward, all five of the Town’s attorneys, including its staff attorney, will be paid as outside counsels. That could save the Town as much as $10,000 annually in FICA, health insurance, retirement and other benefits it has traditionally paid for the staff attorney. In addition, Williamson suggested expenses for all the Town’s outside counsels will now be listed on the budget under Legal & Professional as a single total on line item 10-4150-199 (Legal – Outside Counsel.)
How Much Has MPA Lawsuit Cost Town?
“Here’s the problem with that,” Brock said. “No one is willing to disclose what we’re paying [for legal fees] and who we’re paying it to. We’ve gone from FY 2020 paying $12,500, and now we’re at $140,000 in budgeted [legal] expenses. This is out of control and no one will tell anybody what we’re spending our money on, which is against the law.”
“I refer you to the outside counsel [Black],” Franklin said.
“And that’s fine. You’re welcome to do that and hide behind that,” Brock countered. “Asking how much we’re paying, who we’re paying and when we’re paying them – there’s no attorney-client privilege there.” Brock also said that releasing that information would not place the town in a harmful position.
“If we’re going to take all our legal expenses and lump them into one account and then hide behind a charade that this is not subject to FOIA, then that’s a serious problem,” Brock said. “You talk about transparency. That is the least transparent thing you can do.”
Franklin and Williamson maintain they are acting under the advice of Black in their refusal to release a breakdown of the $93,929.13 to show exactly how much of it was spent on the MPA lawsuit and the Town’s countersuit, and how much, if any of it, was spent on the Town’s other two other lawsuits.
Blythewood town council members say none of them – other than Franklin – has so far been privy to a breakdown by lawsuit of the town’s outside legal expenses.
Who Can See Lawsuit Details?
At one point, Brock questioned, “So who’s to say which council members can see details and which can’t?”
Brock added, “You can’t ask me to come in here and amend a budget item and not say where the money’s being spent.
“We’re $20,000 over budget; we’re adding $80,000 to that budget. I want to know where the Town is spending that money. Everyone up here is entitled to that information. If there are usings or legal advice attached to some of the payments, then redact that information,” Brock said.
“I’m not asking for invoices,” he said. “but if we’ve written 10 checks totaling $70,000, I want to see those checks.”
“So you’re not concerned that this has to do with internal things? Is that irrelevant?” Williamson asked Brock.
“You went to David Black and said, ‘We want to see the payee, the date and the amount paid,’ and he said, ‘No’?” Brock asked.
“Absolutely,” Williamson said.
“Then I guess we’re going to see where that goes,” Brock said.
Baughman: ‘We Caused Lawsuit’
As council speculated Friday about how much the Town is paying for the MPA lawsuit and the Town’s countersuit, Baughman spoke up, “It’s our own doing. We screwed the pooch,” Baughman said at the meeting. The vulgar phrase, according to Dictionary.com translates to: ‘to make a big or humiliating mistake.’ “We caused the lawsuit,” Baughman said.
“It’s adding up to over $10,000 per month,” Brock said.
“I could care less if it adds up to $100,000 ,” Baughman said. “We brought it on ourselves, and we’re going to pay for it. We’re the ones that caused the lawsuit.”
How MPA Lawsuits Came About
Black was initially hired by Franklin, Williamson and Burnett as an outside attorney to handle an FOIA request that was filed by MPA Strategies marketing firm’s attorney Joseph Dickey, on April 15, 2021. That request asked for Franklin’s texts, emails and other documents referencing MPA and its owner/CEO Ashley Hunter.
The request was filed after the finalization of MPA’s marketing contract with the Town was delayed for almost two months and after unseemly rumors were allegedly spread by certain town officials about Hunter and Blythewood Town Councilman Donald Brock.
When Franklin failed to submit the responsive documents to Dickey as required by law, MPA filed a lawsuit on June 28, 2021, to obtain them. Approximately two weeks after the lawsuit was filed, Franklin submitted the documents to Dickey on July 9, 2021.
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, P.A.
“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.
Following the Friday morning meeting, McKenrick concluded to The Voice, “We’re spending this money for nothing.”
Franklin Defends Secrecy
While Franklin said at one point Friday that he agreed that Brock’s request for the payees, amounts and dates was reasonable, he staunchly defended his right to keep them secret.
“There is no attempt to keep this information from the public,” Franklin said. “What we’re trying to do is protect our legal strategy against a very aggressive opponent.”
“Can you direct Mr. Williamson to say [to Black] that you as the mayor have no problem with x information being given to council?” McKenrick asked Franklin.
Franklin sidestepped McKenrick’s question.
“That’s a very good question,” Franklin said. “When it comes to legal advice, I defer to our attorneys who are paid and qualified to give advice on any pending legal matter. If someone was to request all the billable hours and what was paid on a case from two years ago, that would be released the same day, because that case was over,” Franklin said. “But when you have a pending legal case and that information [billable hours paid] could get into the other hands …you see their advantage.”
Who are the Town’s five outside counsels?
David Black with Nexsen Pruet law firm is the outside counsel handling the MPA lawsuit and the Town’s countersuit. According to his letter of engagement, Black bills the Town $475 per hour. Another attorney in Black’s law firm, who might also bill the town for service, charges $315 per hour.
Burnett, a Blythewood attorney who specializes in family law and who served as the Town’s staff attorney from October, 2020 until resigning in October, 2021, is now paid $375 per hour (as needed) as one of the Town’s outside counsels. It has not been made clear what Burnett’s specific responsibilities are.
Council recently hired a new municipal attorney, Ginny Merck-Dupont, who will also be paid as an outside counsel at $200 per hour and $200 for each council meeting she attends.
Two other outside attorneys have been hired by the Town to handle legal issues related to the Cobblestone Park and Abney Hills neighborhoods.
