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Mayoral candidate Clai Brown’s contract amendment allowed him to retire early

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Mayoral candidate Clai Brown’s contract amendment allowed him to retire early

Former mayor Terry Giager, left, and former city manager Clai Brown, right, present a proposed annexation map for the city of Avondale Estates. File Photo by Dan Whisenhunt
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This story has been updated.

Former Avondale Estates city manager Clai Brown and his supporters are pushing back against accusations that he misled the public about the details of an amendment to his contract, which included a large severance for resigning.

While Brown, who is running for mayor, has publicly called the questions about his contract “noise,” he’s taken steps to quiet that noise.

One of Brown’s attorneys, John Robinson, and former city commissioners have sent letters challenging claims that Brown hid the severance from city commissioners, city officials and the public. Robinson’s letter was hand delivered to Mayor Jonathan Elmore’s home. The letter from the commissioners was mailed to numerous Avondale Estates residents this week.

But the questions about his contract aren’t going away. The letters sent by Brown’s supporters and his attorney make claims that are being disputed by city officials.

Decaturish has continued to investigate the circumstances surrounding his contract amendment. That investigation revealed a change that allowed Brown to retire 10 years earlier than other city employees.

In addition to the $300,000 severance he was due if he resigned, something unheard of in the public sector, the amendment lowered the age he could take full retirement from 65 – the age full retirement is available to other city employees – to 55. Brown turned 55 this year,  City Manager Patrick Bryant said.

City commissioners said they didn’t know about the severance, approved in 2015, and refused to pay it. Records provided by the city this year revealed that they threatened to fire him after city attorney Stephen Quinn uncovered evidence that Brown hid the severance from city commissioners, city staff and the public. Brown and his supporters dispute that he hid anything.

It should be noted that Quinn and the city’s other attorney, Bob Wilson, did approve the contract amendment “as to form,” meaning it was not ambiguous or illegal or unconstitutional on its face. But Quinn said that is different than offering an opinion about whether the contract is in the city’s best interest. Wilson said he wasn’t asked to analyze the contract, which was prepared by Brown’s attorney. Quinn and Wilson would later conclude that the contract was unenforceable because they said it wasn’t properly approved in a public meeting and there was court precedent supporting the argument that ordinances approved by one council can’t bind succeeding councils.

Brown didn’t get his full severance, opting to settle the dispute with his employer for around $135,000, according to updated information provided by the city.

But he did take his full retirement, and is now drawing about $27,000 a year. If he had retired without the modification to his contract and the city’s retirement plan, he would’ve been able to collect half of his retirement benefit, Bryant said.

“The way our plan is written, every employee is given the opportunity to retire fully at 65 or, if they have at least 10 years of service credit, are eligible to retire early at 55,” Bryant said. “The difference is that if you elect to retire early at 55, you receive half of your full benefit for the remainder of your life. If you retire fully, you receive your full benefit for the remainder of your life.”

Like the severance agreement, the change to Brown’s retirement plan raises more questions about why his contract was amended. While Brown has said he left the city over interference from city commissioners in city operations, the contract amendments gave Brown a financial incentive to quit his job as city manager.

Martha Perego, ethics director for the International City/County Management Association, questioned the decision to lower Brown’s retirement age.

“The manager needs to be careful about negotiating something where they are the only beneficiary of the change because it can be viewed as self-dealing,” Perego said. “If they’re in a situation like that, they need to be sure about total transparency, and the government agency needs to take that action at a public meeting.”

Amendments to the retirement plan were done in a public meeting. But, unknown to the public, his retirement was also changed in the contract amendment that included his severance. Mayor Elmore says if he had known about the amendment that included the severance, he wouldn’t have voted to change the city’s retirement plan to allow Brown’s early retirement.

Brown and his defenders, including the four commissioners who were there when the contract was amended, say other officials should’ve been aware of the changes to Brown’s contract. But key city officials present at the time say that the contract amendment wasn’t public knowledge and wasn’t disclosed to the city’s finance director, new commissioners or its external auditor.

Brown didn’t return messages seeking comment and did not respond to an invitation for a sit-down interview to discuss this story.

Timeline of a time bomb: How Clai Brown’s contract amendment unfolded

February 2015 – Commissioners Terry Giager, Randy Beebe and John Quinn approve “Annual Evaluation of City Manager Employment Agreement.” This item approved an amendment to then-city manager Clai Brown’s contract that would’ve paid him a severance for resigning. It also lowered the age at which he could take full retirement, from 65 to 55. The amendment was not discussed in a public meeting and were not in the agenda packet published prior to the meeting.

March 2015 – Jonathan Elmore wins a special election to replace Ed Rieker as mayor, kicking off an eight month term. He would later run unopposed for his first full term. Elmore says that when he was elected, he was not told about the severance agreement in Brown’s contract.

May 2015 –  An amendment to the city’s retirement plan is discussed at a City Commission work session. It later has its first required reading at a City Commission meeting.

June 2015 – An ordinance amending the city’s retirement plan receives its second required reading.

July 2015 The ordinance to amend the city’s retirement plan receives its third required reading and is adopted. All commissioners, including Mayor Jonathan Elmore, vote to approve the ordinance. Elmore now says if he had known about Clai Brown’s severance, he would have questioned changes to the city’s retirement plan that allowed Brown to retire early.

November 2015 – Brian Fisher and Adela Yelton are elected to Avondale Estates City Commission, unseating incumbent John Quinn. Both commissioners said they did not know about Brown’s severance until he resigned.

March 2016 City Commissioners unanimously approve renewal of Clai Brown’s employment agreement. The commissioners at the time were Randy Beebe and Terry Giager, who voted on the severance agreement in 2015, Mayor Jonathan Elmore and commissioners Brian Fisher and Adela Yelton. Elmore, Fisher and Yelton said they had no knowledge of the severance agreement when they renewed his contract in 2016.

November 2017 Terry Giager loses reelection bid. Lisa Shortell and Lionel Laratte are elected to the city commission. Shortell and Larette both say they did not know about the severance agreement added to Brown’s contract in 2015.

December 2017 – Clai Brown announces resignation, effective Feb. 16, 2018. It is around this time that Elmore, Fisher and Yelton become aware of the severance added to Brown’s contract in 2015.

January 2018 –  Brown’s severance agreement becomes public knowledge for the first time after Brown rescinds his resignation because City Commissioners are refusing to pay the severance.

February 2018 Following a threat by the city to fire Clai Brown, he opts to settle with the city for a fraction of the severance, around $135,000.

‘Golden parachute’

While Mayor Elmore and other commissioners who weren’t on the board in 2015 did not know about Brown’s contract amendment or severance, Elmore said he did know about the retirement arrangement and did vote to approve it.

In March of 2015, he had just won a special election to replace mayor Ed Rieker, who had resigned. Elmore would have to run again in eight months. In July of 2015, he voted to amend the city’s retirement plan to allow Brown to retire early. At the time, he didn’t know about Brown’s previous contract amendment giving him the severance, approved in February 2015 shortly before Elmore’s election, or that the amendment itself had included the provision about Brown’s retirement.

When Elmore was first elected, his fellow commissioners at the time were Terry Giager, Randy Beebe, John Quinn and Lindsay Forlines, the four who discussed the contract amendment that was approved without the public’s knowledge. Elmore said when he voted to approve the changes to the city’s retirement plan, he assumed it was OK because the other commissioners told him it was.

He noted there are routine changes to the city’s retirement plan every year.

“I said, ‘All right. We’ve got [other] commissioners telling me it’s fine. I’ve been in office three months. I’ve got to get reelected in six months.’ I said, ‘OK, if you’re OK with it, I guess I’m OK with it.’ It wasn’t like anyone came to me and said, ‘Here’s what’s changed. Here’s what’s different,'” Elmore said. “I think I did notice the thing about [Brown retiring at] 55.”

Jonathan Elmore. Image obtained via Facebook

Elmore said if he had known about Brown’s severance at the time, he would’ve asked more questions about the changes affecting Brown’s retirement. He described Brown’s retirement and severance package as a “golden parachute.”

“Had I known about the golden parachute, I think I would’ve taken more issue with the thing,” Elmore said. “I didn’t know about the parachute. I didn’t know they were tied together. Now it’s clear they were. There was a line in the severance agreement where they changed it … It’s becoming fairly clear they knew this was going to happen all along. [Commissioners Beebe, Giager, Quinn and Forlines] had already agreed to do it.”

Commissioner Lisa Shortell wasn’t a commissioner in 2015, but she was at the February 2015 meeting where the contract amendment was approved. Like other members of the public, Shortell had no idea what the commissioners had actually approved. The agenda for that meeting did contain an item called “Annual Evaluation of City Manager Employment Agreement,” but there was no supporting documentation in the agenda packet.

“From what I heard and what I saw on the minutes, any average person would not have known there had been a substantial and material change to Clai Brown’s contract,” Shortell said.

 

Lisa Shortell

 

A letter from an attorney 

Brown announced his mayoral bid in July of this year.

Weeks later, before Decaturish published the results of its initial investigation into his contract as city manager, Brown had his attorney’s office deliver a letter to Mayor Elmore’s home.

Elmore’s 11-year-old son answered the door and the representative from the attorney’s office handed the letter to the boy.

The letter demanded Elmore make a public retraction of comments made during a July 27, 2019 Commissioner’s Chat held with Commissioner Shortell. Elmore and Shortell talked about Brown’s contract amendment and the severance during that event. Shortell explained they were responding to questions from the audience about it.

“We were both responding to a direct question from another resident and … somebody asked if it was illegal,” Shortell said. “[Elmore] said it was legal, but this current board doesn’t have to be bound by this amendment, and I said there was issues with how it was adopted. How it was adopted was problematic.”

Mayor Elmore and Shortell both say they did not know about the amendment or the severance until Brown resigned.

But Brown’s attorney, John Robinson, says Elmore did know and accused him of making “inaccurate statements” during the Commissioner’s Chat.

“We are insisting that you publicly correct your inaccurate statements made at the Commissioner’s Chat as a show of your candor and commitment to your work as a public servant,” the attorney’s letter said.

Elmore said that at an Aug. 26 meeting, Brown showed up along with former commissioners Beebe, Quinn and Giager, the three commissioners who approved Brown’s contract amendment. They didn’t say anything but stared Elmore down, the mayor says.

While Brown’s attorney demanded Elmore “publicly correct” statements he made at the Commissioner’s Chat, Elmore said that’s not going to happen.

“I have zero to apologize for,” he said. “How can you apologize for saying what’s true?”

Commissioner Brian Fisher said the letter delivered to Elmore’s house by Brown’s attorney takes local politics to “a new level.”

“If you’re going to start hiring attorneys to scare people into being not honest, that unfortunately takes us to another level in local politics, and not a very good one,” Fisher said.

Fisher said it’s a preview of what the public can expect in the run up to the Nov. 5 election. He said Brown realizes that a discussion about his contract won’t be helpful to his mayoral campaign.

“If Clai would have done what he did and gone off and not decided to run for public office, nobody would be reporting on it,” Fisher said. “He’s the one that made the decision to run for public office. It’s absolutely fair for people to decide if what he did was ethical. I don’t understand his tactics. I don’t understand what he’s doing.”

Fisher added, “I think he realizes that having conversations about what he did and how he did it is bad for him, so he wants to not talk about it.”

To read the letter from Brown’s attorney delivered to Elmore’s home, click here.

A letter from former commissioners 

Last Wednesday, Sept. 4, a letter authored by former commissioner Forlines appeared in the mailboxes of city commissioners at City Hall. Then on Wednesday, Sept. 11, the same letter appeared in many mailboxes in Avondale Estates. It was co-signed by former commissioners Giager, Quinn and Beebe. Giager and Beebe confirmed they signed it and Forlines confirmed she wrote it. Attempts to reach former commissioner Quinn were unsuccessful.

Like the letter from Brown’s attorney, the letter from Forlines maintains that city officials should have been aware of the amendment to Brown’s contract. One notable thing about the letter is Forlines was absent from the meeting where the contract amendment was discretely approved.

Forlines said in an interview that she “didn’t particularly want” to write the letter, but felt obligated to.

“I feel it was important to weigh in here,” she said. “I’ve seen things that didn’t catch the spirit of what happened.”

When challenged about some of the claims in her letter, Forlines cut the conversation off.

“I really don’t want to answer any more questions on this,” Forlines said. “I think my letter speaks for itself.”

Former Avondale Estates City Commissioner Lindsay Forlines. Photo by Dan Whisenhunt

Beebe was equally combative in text messages asking about the letter.

“So you think it’s OK to vote on something and then claim you didn’t know anything about it,” Beebe said in a text. “Are you saying me and Terry [Giager] are hiding the contract? Is that your assessment?”

When he was told that the city’s own attorney concluded Brown had hid the contract and that the finance director and external auditor also didn’t know about it, Beebe said, “I’m done with this red herring, stupid conversation.”

“Thinking that a sworn commissioner can claim they didn’t have info they voted on is stupid,” Beebe added.

Commissioner Randy Beebe, left, presents a $750 check for Avondale Elementary School.

When asked to respond to Beebe’s claims that it was Elmore and the other commissioners’ fault for not knowing what was in the contract, Elmore said, “That’s precious.”

“It’s our fault for not knowing about an undisclosed amendment, but it’s not his fault for not having the decency to tell us about it,” Elmore added.

Giager did not respond to requests for comment, saying in an email, “There is really nothing further to say. The letter is the truth and speaks for itself; and all the board members signed it.”

To read Forlines’ letter, click here.

One person who didn’t know about the contract amendment was Ken Turner, who was finance and personnel director at the time the amendment was approved. As personnel director, he kept personnel files. The contract amendment wasn’t in Brown’s personnel file, Turner said.

What Ken Turner knew 

Turner is someone most city officials interviewed by Decaturish think highly of. He prides himself on being thorough and transparent. When city attorney Quinn began his investigation, Turner told him that he didn’t know about the contract amendment and said it wasn’t in Brown’s personnel file. Turner confirmed this in a follow up interview with Decaturish.

“I’m not defending Clai,” Turner said. “There are many contacts and agreements that I wasn’t privy to. I wasn’t shocked that I didn’t know about it. I wish I had. There was numerous times there were negotiations and contracts I wouldn’t know about at all, because it wasn’t part of my actual job responsibilities to know about that.”

He did know about Brown’s ability to retire early because the city had to amend the retirement plan to make it happen.

“That had to be signed off on by the board,” Turner said. “I was the pension secretary. I had to sign off on it.”

So what did Turner make of Brown’s ability to retire early?

“I thought that was a pretty good deal for him,” Turner said. “Then again, the board signed off on it. They said, ‘We’re good with this.’ I didn’t feel it was within my capacity to challenge the board about what their decision was.”

During the resignation drama that unfolded in 2018 after Brown threatened to resign, city attorney Quinn spoke to Turner and the city’s auditor. A draft resolution that, if approved by the commission, would’ve fired Brown for cause was in effect the summary of that investigation, Quinn said.

“I performed the investigation regarding the Clai Brown severance contract,” Quinn said. “The investigation consisted of interviews of the city’s finance officer, City Clerk and independent auditor, as well as reviewing records including meeting minutes, audio and agenda packets. It would be fair to consider the draft resolution … as a summary of the investigation’s findings.”

Quinn concluded the failure to disclose the audit made the city’s 2016 audit “materially inaccurate.”

There’s some debate about how Brown’s contract amendment would have been reflected in the audit.

City Manager Bryant said the audit would’ve considered all the compensated absences, including vacation and sick leave. The amendment to Brown’s contract in 2015 allowed him to accrue sick and vacation leave “without limitation.” Because Turner didn’t know about the contract amendment, it wasn’t reported to the auditor, Bryant said.

Turner said if he had known about the severance, he would’ve taken things a step further.

If the city had paid Brown everything he was demanding as his severance, it would’ve amounted to about 8 percent of the city’s budget for 2018. Turner believes that sort of liability should have been reflected in the audit as a footnote.

“When you’re dealing with government money, I like to be right out there,” Turner said. “My policy was [to be] above reproach.”

Bryant said he agrees with Turner that the severance should have been reported in the audit as a footnote.

When Brown requested his severance and the city refused to pay it, Brown’s attorney at the time, Lee Parks, argued in a letter to city attorney Wilson that the funds could be found elsewhere in the city’s budget.

Parks told Wilson that Brown’s salary was already in the 2018 budget proposed for the city.

“Beyond the proposed budget, the city has approximately $1.2 million in cash reserves that can be used for operations,” Parks wrote. “Additionally, the city maintains $1.1 million in retained capital funds, as well as another unrestricted fund in the amount of $78,000 that is earmarked for the Downtown Development Authority, which could be used to fund the severance as the DDA is separate and distinct from the city’s operations.”

Turner and city officials disputed another part of Forlines’ letter. She claims Brown didn’t use the city’s health insurance while he was city manager.

“While Clai could have utilized city-provided health insurance, he declined to do so,” Forlines said. “Clai declined utilizing the provided medical insurance for himself or his family and purchased it himself, as he reported he did not feel comfortable taking this benefit when all employees of the city were not able to do so. He declined utilizing the provided medical insurance for himself and his family. This may be verified with the city financial officer.”

Turner, who was the financial officer at the time, said that claim is not true. His statement is backed up by city officials, who say every record they have shows Brown was using the city’s health insurance.

“I never had any conversation that Clai was interested in abandoning the policy that we had at the city,” Turner said.

Indeed, the contract amendment that Forlines says she reviewed also discusses Brown’s health insurance.

The amendment says the city, “agrees to provide and pay the premiums for health, hospitalization, surgical, vision, dental and comprehensive medical insurance for the employee and his dependents equal to that which is provided to all other employees of the city.”

Behind closed doors

When Forlines, Beebe, Giager and Quinn discussed Brown’s contract, it was done in a closed-door meeting known as an “Executive Session.” These kinds of closed-door meetings are legal under Georgia law.

“The [City Commission] conducted Clai’s annual review to assess his ongoing employment with the city and his performance in that role,” Forlines wrote. “This was conducted at a meeting in Executive Session, meaning not public. Executive Sessions are legislatively allowed for governing bodies to conduct certain business that, for a specified set of issues, should not be made public.”

In her follow up interview with Decaturish, Forlines said, “We’re not required to discuss personnel matters in a public session, such as his compensation level. Of course we vote on it.”

Quinn, the city’s attorney, said that while the commission was allowed to discuss the personnel contract privately, the vote should have been public and transparent. He said if what Forlines implies in her letter is correct, the City Commission violated the state’s sunshine laws, which govern what a board can do privately and publicly. It’s worth noting again: the amendment to Brown’s contract was not included in the agenda packet attached to the February 2015 meeting where it was approved.

“The ‘background’ section of her letter gives the reader the impression that the official decision to enter into a new contract with Mr. Brown was also made in Executive Session by the 2015 [City Commission],” Quinn said. “If true, this would be a violation of the Georgia Open Meetings Act. Ms. Forlines writes that ‘Executive Sessions are legislatively allowed for governing bodies to conduct certain business … that should not be made public [such as] issues surrounding city personnel.’ I respectfully but strongly disagree with Ms. Forlines’ claim that Georgia law allows agencies to conduct the business of entering into a contract with an employee in Executive Session. The relevant provision of the Open Meetings Act, OCGA Section 50-14-3(b)(2), authorizes discussion of such matters in private but very clearly mandates that ‘the vote shall be taken in public.’ In other words, Georgia law does not allow an agency to ‘conduct business’ of entering into a contract with an employee in Executive Session.”

The audio recording of the February 2015 meeting where the severance agreement was approved 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 the audio posted on the city’s website.

Forlines also justified the contract by saying the board needed to protect Brown from a future commission that might try to fire him.

“As such, we wanted to provide Clai an avenue for fair compensation in the event he was terminated by any future [City Commission] or also even in the event he resigned, knowing he had no plans to do so, save irreconcilable differences with a future [City Commission],” Forlines said.

Mayor Elmore said while he has no evidence that Brown planned to resign all along, the severance package combined with the retirement gave him a strong incentive to do so.

“You can only collect that golden parachute if you quit or you get fired,” Elmore said. “Why would you go to all that trouble, to get the severance package and change the retirement age? Why would you do that if you’re not going to go through with it?”

Shortell said the severance package and retirement benefit change “totally incentivized Clai to quit.”

“There were lots and lots of ways for them to protect Clai from a rogue board that would’ve done something wrong, which can certainly happen, by putting in that amendment if he was fired without cause, then he would get a year’s severance,” Shortell said. “They didn’t choose to go down those paths. They chose to put in something unprecedented, particularly in government.”

Shortell said she had “a lot of opinions” about Forlines’ letter. The one part she particularly has issue with is a part of Forlines’ letter that describes Brown’s severance as a perk given to him because the city couldn’t provide other things to Brown like a city vehicle for his personal use or performance bonuses.

“At our city’s size and with a responsible budget in mind, Avondale could not offer those perks,” Forlines said. “Although his salary was well within the competitive range, we wanted to be able to provide a valuable employee, arguably paid less overall than his peers, another valuable benefit. The 12-month severance package was proposed. We all agreed it was an item of value that we wanted to add to Clai’s contract, without question.”

An earlier Decaturish investigation revealed Brown’s $180,000 salary easily trumped what most cities of a similar size pay their managers. The International City/County Management Association (ICMA) says a survey showed that the average salary for the manager of a Georgia city with a population between 2,500 and 5,000 people is $91,167 a year.

But the larger issue with Forlines’ letter, Shortell said, is the idea that what the previous commission did with Brown’s contract was out of consideration for the city’s small budget.

“Looking at it from the big picture, you basically had a board that they say in the letter they’re concerned about the city’s small budget, and yet they were setting a bomb for a future board that would go off and materially affect our budget,” Shortell said. “That’s what happened.”

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