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Avondale Estates threatened to fire Clai Brown before settling severance dispute

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Avondale Estates threatened to fire Clai Brown before settling severance dispute

City Manager Clai Brown during an Avondale Estates City Commission meeting. File photo by Anne Clarke
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This story has been updated. 

The Avondale Estates City Commission in 2018 threatened to fire Clai Brown from his job as the city’s manager and accused him of hiding a provision in his contract that would’ve paid him a $300,000 severance for quitting, records released by the city show.

Brown, who settled his dispute with the city is now running for mayor against incumbent Mayor Jonathan Elmore, on Wednesday denied the allegation that he concealed his severance from the City Commission and city staff.

“No,” Brown said in an email when asked if he had concealed this information.

If the City Commission had followed through with its threat to terminate Brown, it could’ve led to costly litigation for the city, Mayor Elmore said.

“[Brown’s] attorney made it clear there would be a lawsuit and it would be ugly, and it would be a lengthy,” Elmore said. “… Our attorney advised us that rather than go through a lengthy, expensive, ugly lawsuit, that we should talk about settling. We all decided settling would be the best thing for the city.”

Shortly after Brown announced his candidacy for mayor, Decaturish filed records open requests for information about how the severance provision was added to his contract. The records the city provided shed new light on the murky circumstances surrounding the severance.

Asking for a referral

The City Commission amended Brown’s contract during a tumultuous time for Avondale Estates. Former mayor Ed Rieker had resigned in 2014 following a controversy over the city’s annexation plans. The interim mayor at the time was Mayor Pro Tem Terry Giager. He signed an amendment to Brown’s contract in February 2015, shortly before Elmore, the current mayor, was elected. The language of the amendment gave Brown a severance for quitting, something that is unheard of in the public sector. The amendment also stated that Brown would “carry forward to subsequent years all accrued but unused paid vacation and sick leave, without limitation.”

Jonathan Elmore. Photo by Jonathan Phillips

In December 2017, Brown announced his resignation but changed his mind when the city informed him it wouldn’t pay the severance. The city threatened to fire Brown after he announced and then rescinded his resignation, the records provided by the city show.

If the City Commission had honored the amendment to Brown’s contract, it would’ve owed Brown about $300,000. The severance would’ve been a year’s salary – Brown made about $180,000 per year – plus all the accrued vacation and sick leave. Eventually the city and Brown settled the dispute for around $100,000.

When he announced his run for Mayor, Brown told the Atlanta Journal Constitution that the contract amendment wasn’t his idea.

“It is an unusual contract,” Brown told the AJC. “But I didn’t come up with it and a city manager can’t approve his own contract. Every process, every bylaw was followed. The city attorney (Robert Wilson) signed it and it was approved by the [City Commission] at a city meeting. Matter of fact [Elmore] was in the room when the contract was voted on.”

The only part of this statement that all sides agree on is that the contract was unusual.

According to city attorney Bob Wilson, in 2015 Brown contacted him asking for the name of an attorney to help him with a contract.

“Around 2015, Mr. Brown asked me for a referral to an attorney for a personal matter dealing with a contract,” Wilson said. “I referred him to a Decatur attorney. A few weeks later, Mr. Brown presented me with a proposed amendment to his employment contract prepared by that attorney. It was not drafted by me or anyone at our firm. I was never asked to perform any analysis of the amendment such as whether it would be enforceable against a future [City Commission] or whether it was a good idea for the city to agree to the amendment. I did approve the amendment as to form.”

City Attorney Bob Wilson. Photo by Anne Clarke

When asked to clarify what “as to form,” means, city attorney Stephen Quinn said it “means that the City Attorney finds that the contract is not ambiguous and is not illegal or unconstitutional on its face.”

“Approving as to form must be distinguished from approval as to substance, which is a decision by the [City Commission] or City Manager (depending on the contract) that it is in the city’s best interest to enter into the given contract,” Quinn added.

While Brown contends that “every process, every bylaw was followed,” the city believes Brown hid the severance agreement from the City Commission, city staff and the public. The commissioners who approved the severance left the commission before the severance became public knowledge. Commissioners Giager and John Quinn were voted out of office. Commissioners Randy Beebe and Lindsay Forlines did not seek reelection. Forlines wasn’t at the February 2015 meeting when the severance was apparently approved.

Elmore, who wasn’t on the commission when the severance was approved, says he didn’t know about it until Brown announced his resignation in late 2017.

Avondale’s threat

In response to Decaturish.com’s recent records request, the city provided a draft resolution that, if passed, would’ve seen Brown terminated “for cause,” meaning his termination was related to his performance as city manager. Before the city introduced and voted on that resolution, Brown’s attorney contacted the city, Elmore said.

“His attorney let us know if we went through with it, there would probably be some legal action and he would like to talk to us about some sort of settlement,” Elmore said.

To see the draft resolution, click here.

The resolution details Brown’s alleged attempts to hide the severance.

Brown’s severance was never properly approved in a public meeting, the resolution says. The agenda and the minutes for the Feb. 23, 2015 meeting don’t mention it. It’s not contained in the 61-page agenda packet for that meeting. As city manager, Brown would’ve been responsible for ensuring the packet contained all the relevant materials being discussed at that meeting.

When contacted on Aug. 21, Brown said that the contract amendment with the severance was in the agenda packet all along.

“It was included in the [City Commission] agenda packet and it was disclosed in the meeting,” Brown said.

It wasn’t. Decaturish.com’s independent investigation of the matter revealed that the amendment wasn’t in the agenda packet and the city reached that conclusion as well, according to the draft resolution. The agenda for that meeting did contain an item “Annual Evaluation of City Manager Employment Agreement,” but there’s no supporting documentation in the agenda packet.

Commissioners did vote 3-0 to approve Brown’s “Annual Evaluation” of his employment agreement, the minutes show.

The audio recording of the meeting shows that the amendment to Brown’s contract wasn’t mentioned before the vote. Giager spoke briefly about the agenda item during the meeting but he didn’t say anything about the severance.

“We’re very fortunate that we’ve arrived at agreement with our city manager Clai Brown to give us another year, and he’s very excited to do that, and as a board we’re very excited for the superb job he does, and as residents we’re very excited as to how the city operates and is working, so we’re happy to announce we have an agreement before us and we’re going to vote on it,” Giager said at the meeting, according to audio posted on the city’s website.

Materially inaccurate

After the severance was approved, the city alleges Brown hid it from city officials.

The draft resolution provided by the city says Brown didn’t mention it during his performance evaluations in 2016 and 2017. He didn’t tell anyone on the City Commission or the city’s internal finance officer or its external auditors, the draft resolution says. Withholding this information from the auditors meant the city’s 2016 audit was materially inaccurate, the draft resolution says.

In any case, the city contends the severance wasn’t legally enforceable because it wasn’t properly approved by the City Commission and, even if it were, state law says ordinances approved by one council can’t bind succeeding councils.

It was a point Brown’s attorney was ready to argue in court, records released by the city show. To support its position that the contract wasn’t enforceable, the city cited a 2011 state Supreme Court decision in the case of City of McDonough V. Campbell. In that case, the city’s building inspector, James Campbell, sued the city because it would not honor a contract approved by the previous mayor and council. In that case, Campbell’s contract stipulated he was eligible for 12 months of severance pay if his contract was terminated. A new council declared that contract null and void and refused to pay the severance, prompting the suit. Ultimately, the Supreme Court sided with the city of McDonough, saying the contract conflicted with state law.

Brown’s attorney, Lee Parks, said in a 2018 letter to Wilson that the case law the city cited didn’t apply in Brown’s situation.

In a letter to Wilson, Parks wrote, “That amendment [to Brown’s contract] was executed by the City’s Mayor Pro Tempore [Commissioner Giager] and approved as to form by you. Again, the city’s charter vests the Mayor Pro Tempore with the authority to execute the amendment on behalf of the city.”

A message left with Parks seeking comment was not immediately returned.

To see the letters between Parks and Avondale Estates’ attorneys, click here.

Former Avondale Estates Mayor Pro Tem Terry Giager. File Photo by Dan Whisenhunt

Protecting Clai Brown

There have been conflicting explanations about why the severance was added to Brown’s contract.

The draft resolution provided by the city alleges that in December 2016, “Giager told a group of citizens at City Hall that he had orchestrated the [contract amendment] ‘to protect Clai from the new mayor.'”

Attempts to reach Giager have been unsuccessful.

Former commissioner Beebe apparently weighed in on the situation in comments on a Decaturish article about Brown’s announcement that he was running for mayor.

“The severance package was an enticement to keep a highly regarded manager in a very volatile job market during that time,” Beebe said. “The contract renewal was offered by the board and Clai accepted. Maybe not the wisest move on the board’s part but no misappropriations on Clai’s part.”

When asked to confirm that he made this comment on the article, Beebe wouldn’t give a clear yes or no answer.

“I suspect so,” Beebe said in a text message.

The city provided the documents Decaturish requested after waiving its right to withhold them because they were private discussions between the city and its attorney.

Elmore said the city felt comfortable releasing the records because the dispute about Brown’s severance has been settled.

“People need to know,” Elmore said. “They’ve had a lot of questions. We’ve had questions from day one and we ourselves did not know the answers to many of these questions. There were a handful of people who knew the specifics of how this came about and I think people have a right to know. I didn’t know all the answers. I don’t know why he did it. I don’t know who got this started. A lot of people want to know what the heck happened here.”

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