Former Metro Lawyers Hired as Outside Counsel Say Metro Board of Ethics Has No Jurisdiction to Address Violations of the Mayor’s Executive Order on Ethics

On Wednesday, Klein Bussell, the law firm retained by the Metro Legal Department to evaluate an ethics complaint filed against the Mayor one week after she admitted to her extramarital affair, concluded that the Metro Board of Ethical Conduct, “lacks jurisdiction to examine alleged violations of Metropolitan Government executive orders.”

The report was crafted by three of the firm’s partners, all of whom worked in the Metro Legal Department under previous Democratic administrations.

Saul Solomon was Director of Law for the City of Nashville from 2012 to 2015 under former Mayor Karl Dean.

Kevin C. Klein worked as an attorney in the Metro Legal Department from 2003 to 2012, first under former Mayor Bill Purcell, and subsequently under former Mayor Dean, as his bio at the Klein Bussell website explains:

In 2003, Kevin came to work for then-Director of Law Karl Dean at the Nashville Department of Law. He spent the next nine years in the trenches, investigating claims, conducting discovery, taking depositions, trying cases, and briefing and arguing appeals. During that time, Kevin got dozens, if not hundreds, of cases dismissed before trial with no payment to the plaintiff, won numerous jury and bench trials, and successfully briefed and argued cases in front of the Sixth Circuit Court of Appeals, Tennessee Court of Appeals, and Tennessee Supreme Court.

Allison Bussell, a 2004 graduate of the University of Tennessee Law School, worked for the Metropolitan Department of Law in Nashville from about 2005 to 2014, according to her bio on the Klein Bussell website:

Quickly after assuming her role as a Metropolitan Attorney under then-Director of Law Karl Dean, Allison began building a niche as a federal litigator, defending cases ranging from cumbersome pro se prisoner cases to high-stakes Title VII and Section 1983 class actions. During her nine years with the city, Allison carried a heavy litigation caseload, with significant autonomy, while also advising her litigation clients on various legal issues. In her time with Metro, Allison developed a reputation as a dedicated professional, always willing to go the extra mile to produce a quality work product for her clients. While representing the Metropolitan Government zealously, Allison also enjoyed developing strong relationships and positive rapport with the dedicated city department heads and employees she encountered in her work.

 

One week after Mayor Megan Barry admitted to having concealed a two year extramarital affair with the head of her security detail, an ethics complaint was filed with the Metro Council Board of Ethical Conduct alleging a violation of Metro’s Standards of Conduct and Executive Order 005.

On February 24, 206, Mayor Barry signed Executive Order 005 Financial and other disclosures by certain Metropolitan Government employees and officials; ethics, conflict of interest, and acceptance of gifts on the part of employees of Metropolitan Government. The Executive Order (EO) which explicitly states that it applies to the Mayor and the Mayor’s office, is broader in scope than Metro’s Code of Conduct, noting that adhering to the EO’s standards are, “essential to the proper performance of government business and the maintenance of confidence by citizens in their government.” The EO mandates specifically that “[e]ach employee of the Metropolitan Government shall avoid any action, whether or not specifically prohibited by this order, departmental codes of ethics, or Metro Code of Laws Section 2.222.020, which might result in, or create the appearance of:

a. using a public office for private gain;
b. giving preferential treatment to any person;
c. impeding government efficiency or economy;
d. losing complete independence or impartiality;
e. making a Metropolitan Government decision outside of official channels; or
f. affecting adversely the confidence of the public in the integrity of the Metropolitan Government.

The Mayor, who was sworn in on September 25, 2015, has been deliberately vague about the beginning and end dates of her affair, but stated in her first public admissions to the affair that it began “shortly after I came into the Mayor’s office.” By the Mayor’s own timestamp, she may very well have signed the EO after the affair had already begun.

According to procedures spelled out in the Metro Code, a complaint alleging a violation of Metro’s Standards of Conduct is first evaluated by the Metro Legal Department to determine whether or not there is a possible violation. Metro Legal in turn, makes a recommendation to the Board of Ethical Conduct as to whether the complaint should be investigated or dismissed.

Rather than conducting a review of the ethics complaint in-house, the Metro Legal Department retained the firm Klein Bussell, PLLC, to evaluate the complaint.

Sgt. Forrest’s daughter, Macy Forrest Amos, was recommended by Mayor Barry in January 2016, for a position with Metro Legal, possibly creating an appearance of conflict of interest or bias on the part of Metro Legal in evaluating the complaint.

The Klein Bussell firm’s list of “Representative Clients” on its website includes Metro Nashville Police Officers and Davidson County Sheriff’s Officers along with the Metropolitan Government of Nashville and Davidson County. It is noted on the firm’s report to the Metro Board of Ethical Conduct evaluating the ethics complaint that:

The Department of Law retained outside counsel to conduct an independent analysis of the Complaint and provide a  recommendation to avoid any appearance of bias. The Department of Law in no way dictated the results of our review, and the conclusions herein are entirely our own.

As to any violation of the Mayor’s Executive Order 005, the Klein Bussell report concluded that:

In fact, nothing in the Metropolitan Code – Chapter 2.222 or otherwise – provides the Board [of Ethical Conduct] or Department of Law the authority to examine and offer recommendations  concerning whether Metropolitan Government employees have violated an executive order. Thus, the Board [of Ethical Conduct] does not have jurisdiction over alleged violations of Metropolitan Government executive orders.

The report can be read in full here:

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The Klein Bussell opinion leaves open the question of whether non-reviewable and non-enforceable mayor-issued Executive Orders addressing employee conflicts of interest and other ethics matters, serve any useful purpose.