city of brookhaven, brookhaven innovation academy ethics investigation
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7/24/2019 City of Brookhaven, Brookhaven Innovation Academy Ethics Investigation
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th is
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ee
to
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ll.
Si
nce
rel
y
E
nc
los
ure
s
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O n
November 16,
2015, the firm
was retained
y the City o
Brookhaven t
o advise as to
certain e
thical consider
ations involvi
ng Councilma
n Bates Mattis
on who accep
ted a full tim
e
position
as Executive
Director o
th
e Brookhaven
Innovation A
cademy (BIA
), while servin
g
contem
poraneously
on the City C
ouncil. The
following m
emorandum is
based upon
the
in formati
on that we h av
e been provide
d and obtaine
d to date.
FA
CTUA L BAC
K G R OU N D
n
N ovember
2012, Bates
Mattiso n was
elected and
sworn in as a
m e m ber o
the
B
rookhaven Ci
ty Council.
O n
or
abou
t April 24, 20
13, Bates Mat
tison was app
ointed as a Co
uncil liaison o
n the
Brookhaven
Development
Authority. See generall y
, Bro
okhaven Deve
lopment Autho
ri ty M inutes
[Tab
A].
O
n or about May
7, 2014, the B
rookhaven Inn
ovation Acade
my was incorp
orated w ith the
M ayor a
nd City Counc
il as the origin
al board mem
bers.
See,
M em
orandum date
d November 1
8,
2015 [Tab
B].
At the
ay
13, 2014 City Council Meeting, Council M ember Mattison recognized Mr.
Gareth Genne
r
o
Edevate w
ho provided in
formation abo
ut Edevate' s e
ducation progr
am for the
proposed
Brookhaven I
nnovation Aca
demy. [Tab CJ
B
rookhaven 's 2
014 budget co
ntained a $30
,000.00 expend
iture for a st
udy
o
feasibil
ity
o
a Brookhaven
City School S
ystem.
S
ee, N
o v ember 20,
2014 City Cou
ncil Minutes [
Tab DJ.
Council M emb er M attison indicated $30,000 for 2015 was an appropriate amount for the 2015
budget. Id. See a
lso, E
devate consul
ting retainer e
xecuted on Ma
rch 16, 2015.
[Tab E].
W h e n
concerns were
raised at that N
o v ember 20,
2014 meeting r
egarding the C
ity Council
acting as th
e governing bo
ard
o
the Cha
rter School, M
r. Mattison n
oted that whe
n the effort
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sta
rted, h had no
t envisioned t
he council bein
g the governin
g board. He c
ontended his p
ersonal
vision
was that the c
ouncil would h
ave designees
. Id
In early 201
5, Bates Ma tt is
on was appoin
ted chair of he
Brookhaven I
nnovative Aca
demy
(B I
A) Explorator
y Committee.
Th e B IA is
listed as a dom
estic nonprof
it corporation
on the
Secretary
of State' website
. [Tab F].
T he July 1
0, 2015 minut
es
of
th e Broo
khaven City C
ouncil state:
Council Me
mber
Matt ison rep
orted that h
h
ad spoken to
some people e
arly on wh en
h was in the
process of
starting the
Brookhaven In
novatio n Acad
emy (BIA) and
looking for sp
ace. A t this
meeting, Mr.
Matt i
son voted in fa
vor
of
he purc
hase
of
he Sk
yland Drive pr
operty. [Tab G
].
O n July 17
, 2015, City M
anager Mar i
e Garrett, duri
ng executive s
ession
of
the c
ity
of
Brookhaven
Development
Authority, w
hich Bates M
attison is also
a member, d
isclosed the
purchase of
he Skyland D
rive P roperty
as the propose
d future site of
he BIA or
s a future city
office bui
lding. There i
s no reference
to Bates Matti
son participatio
n in th e meeti
ng and no vote
s
w e
re taken. [Tab
H].
On A ugust 1
3, 2015, the B
I Regular Me
eting M inutes
states that B
ates will take
the
p
roposed by-law
s changes req
uired to the pe
ers on city cou
ncil. [Tab I].
O n A
ugust 21, 2015
, Bates Mattiso
n was absent f
rom the Devel
opment Autho
rity meeting
w h
ere the propert
y purchase for
the Skyline D
rive Property w
as discussed.
[Tab J].
On August 2
3, 2015, City A
ttorney Chris
Balch issued
an opinion reg
arding conflic
ts
of
in
terest regardin
g the Skyland
property pur
chase. [Tab
K]. Mr. Balc
h wrote that
it is
m
y
r
ecommendatio
n that Mr. Ge
bbia and Mr.
Mattison recu
se them selves
from the cons
ideration,
disc
ussion or votin
g on such issu
es. f his reco
mmendation is
accepted, then
Mr. Gebbia a
nd Mr.
Mattiso
n should leav
e Council Ch
ambers during
any such di
scussion and
should avoid ny
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dis
cussion off he
record with an
y
of
heir colle
agues on these
topics. Id
.
M
r. Balch furthe
r stated
I propose we
solve this issu
e y utilizing
the 2 Counci
l appointed sea
ts for private
citizens,
appointed
y
th
e Mayor and
confirmed
y
t
he Council,
s permitted und
er the Charter.
This will
require the re
signations of
Mr. Mattison a
nd Mr. Gebbia
from the Boa
rd
of
BIA.
Id.
O n S
eptem ber 8, 2
015, Developm
ent A ttorney
Wen d y Butler
advised Mem
ber Mattison
and M
ember Gebbia
, who also has
some involvem
ent in the BIA
, that there w
as no legal con
flict
and felt ther
e was no need
to recuse. M
e m b er Gebb
ia participated
n th e vote a
nd Member
M a
ttison recused
h imse lf from t
he vote. Bates
Mattison recu
sed him self fro
m a City Coun
cil vote
on the b ond resolution for the purchase
of
th e property. [Tab L]. (While we u n derstand that the
bond has not b
een issued, ca
reful ethical co
nsideration sh
ould
e
made a
s to w hether t
he type
o
f
third
party lease co
ntemplated
y the bond reso
lution is viable
and direct the
council's atten
tion to
Green
e County Deve
lo pment Autho
rity v State o
Georgia 2
96 Ga. 725 (20
15)). [Tab M
].
On
September 2
4, 2015, the B
IA Regular M
eeting Minute
s state Facili
ty update - C ity
w asn 't wi
lliug to fmance
Skyland loca
tion. Skyland
renovations ar
e intense and
wo n ' t m eet the
B IA
timeline. [T
ab N].
On Octob
er 16, 2015, B
ates Mattison, B
I Board Cha
ir, recuses him
self from discu
ssions
at the B
IA Board Reg
ular M eeting re
garding his ap
pointm entto th
e position ofE
xecutive Direc
tor
o
f
h e
BIA through S
eptem ber 30,
2016. [Tab O]
.
O n Octobe
r 23, 2015, B
ates M attison
excused him
self from Dev
elopm ent Au
thority
m eeting during discussion on property purchase. [Tab P].
O n N o v emb
er 5, 2015, Bat
es Mattison w
as reported as
Executive Dire
ctor on the BIA
Boa
rd Regular Me
eting M inutes
. [Tab Q]. Th
e BIA Executi
ve Director Co
ntract was exe
cuted
o
n that date as li
sted the follow
ing as one of he
Executive Dir
ector's duties:
Serve as the
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liaison between BIA and the State Charter School Commission and other governmental agencies
See Section One
(l)(f)
[Tab R]. In addition to a base retainer of$60,000.00 per year, the
Contract also contained a provision under Section Two whereby BIA will pay Contractor a 10%
commission for all sponsorship revenue earned.
Id.
Mr. Mattison has asked the BIA to remove
the
10% commission provision from the contract.
Id.
In a Memorandum dated November 18, 2015, Mr. Mattison outlines the steps
he
took to
ensure that there was no confl ict
of
interest issue. He contacted Andrew Lewis, Executive
Director, Georgia Charter School Association; Gregg Stevens, General Council, State Charter
School Commission and consulted with City Attorney Chris Balch and Development Authority
Attorney Wendy Butler. [Tab B].
On November 20, 2015, Brookhaven Innovation Academy prepared a
Confidential-
Draft press release announcing Mr. Mattison as the Interim Executive Director. The press
release addresses conflict
of
interest as follows:
Mr. Mattison and
BIA
have also taken affirmative steps
in
assuring that there will
be
no conflict
of
interest for Mr. Mattison
in
his role as
BIA's
Interim Executive
Director and as a
member
of
the Brookhaven City Council.
At
Mr. Mattison's
request, the Board appointed an executive compensation committee to look into
best practices for compensation within the non-profit-sector, and ensure
compliance with
the
Association ofFundraising Professionals (AFP) ethics policy
which discourages against percentage-based compensation based on contributions
raised. Additionally, the BIA Board and Mr. Bates acted swiftly to ensure that both
contributors to BIA and Mr. Bates constituents have full confidence in his
respective roles as the
BIA
Interim Executive Director and Brookhaven City
Councilman
by
removing the commission based part of his fee structure at their
special called Board meeting on November 19, 2015. [Tab S].
LEGAL AUTHORITY
CITY COUNCIL
The basic underlying premise is that it is impermissible for members
of
the city council
to vote on any matter where the member has an interest. O.C.G.A.
§
36-30-6 states: It is
4
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Therefore,
under G eorgia
case law, eac
h potential co
nflict m ust
e
analyzed to d
etermine the
natur
e
of
th e interes
t involved. W
here a financi
al interest is in
volved, a coun
cil mem ber sh
ould
refr
ain from partic
ipation in any
discussions o
r
a
ctions taken
y the council re
lating to the co
nflict.
n ick v Wi
lliams 21 5
Ga.App. 629
(1994), the Ge
orgia Court of
appeals strupk
down a
zoning dec
ision y county
commissione
rs where a com
missioner's so
n was a part of
he legal team
handling the m
atter. [Tab X
]. There the C
ourt held that
we believe tha
t state law prov
ides a floor
and no
t a ceiling for
the boundaries
of
ethical cond
uct y governm
ent officials.
Local county a
nd
m unicipal
governments a
re free to imp
ose higher stan
dards, and ind
ividuals who s
eek and retain
office in
local jurisdict
ions are bound
y the standar
ds of th e gover
nment they se
rve. Id . Ther
e
th e
county ethics
code provided
that: public
interest requir
es that Cobb C
ounty protect
against
im proper
influence or th
e appearance of
impro per inf
luence y esta
blishing appro
priate ethical
standards with
respect to co n
duct
of
public
officials. Id.
Th e C
ity
of
Brookha
ven has also a
dopted a code
of ethics for its
member s
to f
ollow. The
Code of C i
ty
of
Brookha
ven, Chapter
2, Article XI,
as
am ended
y O rd inance
2014-05-07,
encompasses the Code
of
Ethics. Section 2.401 ( e)
of
he Code states that financial interest means
the
following: (i)
funds receive
d y th e M e m
ber from the
other person or
entity durin
g the
previou
s 12 months ei
ther equal to or
in excess of
(a) $5,000.00 i
n salary, bonus
es, com missio
ns
or professio
nal fees, or $5
,000.00 in pay
ment for good
s, products or s
ervices,
or
(b)
ten percent of
t
h e Mem ber ' s g
ross income d
uring that peri
od, whichever
is less; or (ii) t
he Mem ber is
a creditor,
de b
tor,
or
guara TJ tor of
he other p
erson
or
enti t
y in an amount
of $5,000.00 or
more. [Tab
Y].
Section 2
.401(h)
o
f the
Code states tha
t substantial
interest means
the following:
(i) the
direc
t or indirect o
wnership
o
f 25
%
of
he assets
or of
the own
ership interest
s in any busine
ss
or
property
; (ii) the holde
r
of
any eviden
ce
of
ndebted
ness of any bu
siness for borr
owed money;
or
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(iii) any director, manager, trustee, officer
or
employee of any business (other than employees
of
a business registered as a publicly traded company under the Securities Act
of
1934). Id
As
the
Chairman
of
the Board of Directors
of
BIA and now as the Executive DireCtor, Mr. Mattison had
and has a substantial interest
in
the BIA.
Section 2.402(d)
of
the ethics code states
in
part that:
ill Members and family members shall not solicit or accept directly or indirectly
anything of value from
any
person, corporation or group which:
1)
Has,
or
is seeking to obtain, contractual
or
other business
or
financial
relationships with the City,
unless
a Member's or family member's contractual
relationship with such person, corporation,
or
group existed prior to the City's
contractual relationship
or
prior to the Member's election or appointment to office;
the. Member, if
in
office at ·the time the contractual, business or financial
relationship came before the City for consideration, disclosed such relationship or,
if not in office at such time, has immediately disclosed the relationship to the City
after being elected
or
appointed to office and becoming aware
of
the City's
relationship with such person, corporation
or
group; the Member abstained from
discussion
of
the
City s
consideration
of
entering a contract with such person,
corporation or
group
or
competing vendor; the Member abstained from voting
on
any matter related to the relationship between such person, corporation, or group or
the subject contract or services; and the Member did not make personal use
of
any
official non-public information, as prohibited by Section (k) hereof;
(2) · In exchange for the thing ofvalue, seeks to have a Member exercise
a matter
of
discretion
in
his
or
her favor;
or
(3) In exchange
forthe
thing
of
value, seeks to have interests which
may
be affected
by
the performance or nonperformance of the official duty
of
the
Member.
(ii) Members and family members shall not directly
or
indirectly request, exact,
receive,
or
agree to receive a gift, loan, favor, promise, benefit
or
thing
of
value for
him/herself or another person if:
1) It could reasonably
be
considered to influence the Member in the
future, and the Member is involved in any official act
or
action which results in a
pecuniary benefit for the donor
or
lender which is not available to the public at
large; or
2)
It
could reasonably
be
considered to influence, benefit or reward the
Member, and the
Member
recently has been,
or
is now or within six
6)
months in
the future, involved
in any
official act or action which results
in
a pecuniary benefit
for the donor or lender which is not available to the public at large.
(iii) [Not applicable].
Id
8
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Section 2.402(e regarding Conflict ofinterest states that:
(i) A Member may not participate in a vote or decision on a matter affecting a
family member or any person, entitv, or property in which the Member or family
member has a financial interest or substantial interest.
(ii) A Member who serves as a corporate officer or member
of
the board
of
directors
of
a nonprofit entity must disclose their interest in said entity to the Mayor
and council prior to participating in a vote or decision regarding funding
of
the
entity by or through the city.
(iii) Where the interest
of
a Member in the subject matter
of
a vote
or
decision
is remote or incidental, the Member m y participate in the vote or decision but
should disclose the interest. I d ~
Pursuant to the Code of Brookhaven, Members shall not solicit or accept directly
or indirectly anything
of
value from any person, corporation
or
group which has,
or
is
seeking to obtain, contractual or other business or financial relationships with the City,
unless:
(1) the Member, if in office at the time the contractual, business or financial
relationship came before the City for consideration, disclosed such relationship;
(2) the Member abstained from discussion of he City 's consideration
of
entering a
contract with such person, corporation
or
group
or
competing vendor;
(3) the Member abstained from voting on any matter related to the relationship
between such person, corporation,
or
group or the subiect contract
or
services; and
(4) the Member did not m ke personal use of any official non-public information.
DEVELOPMENT AUTHORITY
Development Authorities were created
by
O.C.G.A. § 36-62-4. [Tab Z]. O.C.G.A.
§
36-
62-5 sets forth certain restrictions on development authority directors and states:
(a) The directors shall be taxpayers residing in the county
or
municipal corporation
for which the authority is created, and their successors shall
be
appointed as
provided by the resolution provided for in Code Section 36-62-4. The governing
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authority
of
a county
or
municipality
may
appoint no more than one member
of
the
governing authority as a director.
(b) The directors shall elect one
of
their members as chairman and another
as
vice
chairman and shall also elect a secretary and a treasurer or a secretary-treasurer,
either
of
whom may,
but
need not,
be
a director.
(
c
The directors shall receive no compensation for their services but shall
be
reimbursed for their actual expenses incurred in the performance
of
their duties;
provided, however, the directors of he development authority activated
by
counties
having a population
of
550,000
or
more according to the United States decennial
census
of
1980
or
any future such census shall
be
paid a per diem allowance to
be
determined
by
the governing authority
of
such counties for each day,
or
part thereof,
spent
in
the performance
of
their duties.
(d) The authority
may
make bylaws and regulations for its governance and
may
delegate to one
or
more
of
its officers, agents, and employees such powers and
duties as
may
be deemed necessary and proper.
( e)(l )(A) The provisions
of
Code Section 45-10-3 shall apply to all directors
of
the
authority, and a director
of the
authority shall not engage
n any transaction
with
the authority
(B) The provisions
of
paragraph (9)
of
Code Section 45-10-3 and subparagraph (A)
of
this paragraph shall
be
deemed to have been complied with and the authority
may
purchase from, sell to, borrow from, loan to, contract with,
or
otherwise deal
with any director or
any
organization
or
person with which any director
of
the
authority is
in
any
way
interested or involved, provided
(1)
that any interest
or
involvement
by
such director is disclosed
in
advance to the directors
of
he authority
and is recorded
in
the minutes
of he.
authority, (2) that any interest or involvement
by such director with a value
in
excess
of$200.00
per calendar quarter is published
by
the authority one time in the legal organ
in
which notices
of
sheriffs' sales are
published
in
each county affected
by
such interest, at least 30 days
in
advance of
consummating such transaction, (3) that no director having a substantial interest
or
involvement
may
be
present at that portion of an authority meeting during which
discussion
of
any matter is conducted involving any such organization
or
person,
and (4) that no director having a substantial interest
or
involvement
may
participate
in
any decision
of
the authority relating to
any
matter involving such organization
or
person. As used
in
this subsection, a substantial interest or involvement means
any interest or involvement which reasonably
may be
expected to result in a direct
financial benefit to such director as determined
by
the authority, which
determination shall
be
final and not subject to review.
(2) Nothing contained
in paragraph( ) of
his subsection or in Code Section 45-10-
J
shall
be
deemed to prohibit any director who is present at any meeting or who
participates
n
any decision of the authority from providing legal services
in
connection with any
of he
undertakings
of
he authority
or
from being paid for such
services.
f)
Each development authority shall provide to its respective county or municipal
fiscal officer, as the case
may
be, an audited financial statement
if
such audit has
been required
by
the respective county
or
municipality within six months
of
he end
of
the previous fiscal year. [Tab AA].
10
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O.C
.G .A.
§ 45 -1 0
-3 sta t
es in p
art tha t
: N ot
withst a
nding a
ny pro
visions
o
f la w
to th e
co
ntrary ,
each m
em ber of
al l b o
ard s, c
om mis
sions, a
nd auth
orities c
reated b
y gene
ral sta t
ute sha
ll:
(9) Never take any official action with regard to any m atter under cir cum sta nces in whic h
he
kno
w s or
should
know t
hat he h
as a d
irect or
indire c
t m one
tary int
erest in
the su
bject m
atter of
such
m atter
or in t
he outc
om e
of such of
ficial a
ction.
[Tab B
B].
Pursua
nt to 0 .C
.G .A .
§ 36-6
2-5, (e
)(l)(A ),
a dire
ctor of
the aut
hority s
hall n o
t engag
e in
a
ny tran
sactio n
with
the aut
hority .
How
eve r,
O.C.G.A
. § 3
6-62-5 ,
(e)(l)(
B ) se t
s fo rth
an
·e x
cepti o
n w here
the au
th ority
ma
y
p
urchase
from,
sell to,
borrow
from, l
oan to,
contrac
t w ith,
or
otherw i
se deal
w ith a
ny dir e
ctor or
any o
rganiz a
tion or
person
w ith w
hic h a
ny dir e
ctor of
th e
aut
hority i
s in any
way in
tereste
d or in v
olv ed
under
the fol l
owing c
onditio
ns:
(1
) that
a ny in t
erest o
r invo lv
em ent
by suc
h direct
or is di
sclose d
in adv
ance to
th e dir
ectors of
th e a
uthority
and is
record
ed in th
e m in u
tes of th
e auth o
rity;
(2) th
at any i
nterest
or invo
lvem en
t in ex
cess of
$200.0
0 is pub
lished
at least
30 da y
s in a d
vance
of
th e t ra
nsactio
n;
(3) tha
t n o d i
rector h
aving a
substa
ntial in
terest o
r involv
em ent
may be
pre sen
t at th a
t porti o
n of
a
n auth
ority m
eeting
during
w hich
discus
sion of
any m
atter is
condu
cted in
volvin g
any s
uch
org ani
zation o
r pers
on; an
d
( 4)
that no
directo
r havin
g a sub
stanti a
l intere
st or in
volvem
ent m a
y partic
ipate in
any d
ecision
of
the aut
hority r
elating
to any
mat te r
involv i
ng such
organi
zation o
r perso
n. Su
pra
CO N CLUSIO N
U nd
er Geo
rgia s ta
tutory
law, it
is im pro
per an
d illega
l for a c
ouncil
m em be
r to vot
e upon
any q
uestion
before
the c o
uncil
in w hic h
h
e is p
ersonal
ly intere
sted. G
eorgia
case l a
w goe s
a
ste p
furthe
r. W hen
a fin a
ncial in
terest o
r su bst
antial in
terest i
s invol
ved bet
w een a
council
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m em be
r and a
n entity
, a City
s ac tio
ns rega
rding t
hat enti
ty may
e vo id
. The
Code of
Brookh
aven w
ould al
low a c
ouncil m
em be
r to h av
e an in t
erest in
an e nt
ity in w
hich it
contrac
ts
if he in
terest is
fully d
isclose
d y th e
cou nc
il mem
ber, the
coun ci
l mem b
er abst
ains fro
m
di
scussio
ns on t
he cont
ract, the
cou nc
il mem
ber abs
tains fro
m vote
s on th
e matte
r, and t
he
c
ouncil
m em be
r has n
ot used
nonp ub
lic info
rmatio
n for pe
rsonal
gain.
H
ere we
have th
e uniq u
e situa
tion wh
ere the
M ay or
and Ci
ty Coun
cil act
ed as th
e initia
l
board of
di rec
tors fo
r the BI
A. A s
a direct
or, eac
h mem b
er had
a subst
antial in
terest i
n the B
IA
pu
rsuant t
o the C
ode of
Brookh
aven.
There a
ppears
to be no
que st
ion that
the M a
yor and
City
Council s inv olvement, including Mr. Matti son s , w
as fully
disc lo
sed to t
he gov
erning b
ody.
A s req
uested
y Mr.
Matt is
on, it is
stro ng
ly recom
mend
ed that
the con
tractual
arrange
ment b
etween
the B IA
and Mr.
M a
ttison n
ot inclu
de a pe
rcentag
e bonu
s comp
onent or
a
ny bon
us stru
cture th
at allow
s incen
tives f
or the r
eceipt of
publi
c funds.
t is f
urther
re
comm e
nded t
hat Mr.
M atti s
on com
ply w it
h all di
sclosur
e and pu
blicati
on requ
iremen
ts as se
t
fo rth
und er
state la
w, the
City s C
ode of
Ordina
nces an
d as se
t forth
above.
t
i
s wort h
y
o
f m
entioni
ng that it
ap pea
rs that
the B IA
is n o
longer i
nterest
ed in
o
ccupyi
ng the
Skyland
Driv e
prop er
ty whic
h was t
he subj
ect of a
prop os
ed bon
d issue
which
lease s
avings
migh t h
ave be
en cons
trued a
s such
an ince
ntive.
U po
n the ad
vice of
Mr.
it
appe ar
s that Mr.
Mat
tison re
cused a
nd excu
sed h i
mse l f
from
all BIA
m at te r
s broug
ht befo
re the C
ounci l
and D
evelopm
ent Au
thority
after A
ugust 2
3,
2015. Mr. Mattison became the Executive D ir ector
of
the BI
A on or
ab out
Nove m
ber 5, 2
015.
N
ow, as
an emp
loyee of
he B
IA, M r.
M atti s
on sho
uld recu
se him
self from
al l m
atters,
includin
g
discuss
ions an
d votes
, broug
ht befor
e the M
ayor a
nd Cou
ncil and
the De
velopm
ent Au
thority
r
egardin
g the B
IA. Th
e best p
ractice
w ou ld
e tha
t Mr. M
attison
leav e t
he dais
and e x
it any
2
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meeting conference or forum t which any matter regarding the BIA is before the Council or
Development Authority.
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