Town, MPA sign; council may have violated FOIA

BLYTHEWOOD – After months of acrimonious council discussions concerning contract negotiations between Blythewood Mayor Bryan Franklin and MPA Strategies, the climate has turned legal.

While Franklin was one of two members of council who voted against contracting with MPA Strategies to handle promotional services and grant writing for the town, he, Town Administrator Carroll Williamson and Town Attorney Shannon Burnett were authorized by council to negotiate the details of the contract with MPA Strategies.

With the negotiations continuing to drag on, MPA Strategies’ CEO and owner, Ashley Hunter, sent a Freedom of Information (FOI) request, dated April 15, 2021, to town hall requesting the mayor’s phone, text and email messages as they pertain to MPA Strategies.

The next day, April 16, Franklin signed the contract and mailed it to Hunter to sign. Hunter signed and returned the contract to town hall on April 21.

But, all is not well.

On April 20, 2021, Franklin, without town council’s consent and approval, engaged Nexsen Pruet law firm as outside counsel to represent the Town concerning MPA Strategies. Three members of council – Donald Brock, Sloan Griffin and Larry Griffin – said they were not aware that the mayor intended to or had hired outside counsel until receiving copies of emails that Nexsen Pruet attorney David Black had sent to MPA strategies on April 23, 2021, concerning what he termed a “dispute” between the Town and MPA Strategies.

Councilman Eddie Baughman had not responded to a message left by The Voice at press time.

In response to a question from The Voice regarding Franklin’s authority to unilaterally hire outside counsel in regard to MPA Strategies, a state official knowledgeable about municipal government said the hiring of outside legal counsel falls under the authority of council, not the mayor.

According to the “Statutory Powers of Council and Mayor” section of the Municipal Association of S.C.’s Elected Officials Guide, under all three forms of town government, an attorney cannot present as working on behalf of the town government without the council as a body engaging him/her.

On April 23, 2021, Black sent an email on behalf of the Town to Hunter, stating that the Town would comply with her FOI request, but that, “In terms of the electronic data you seek in relation to email and text, please also be advised that the Town’s outside vendor TCDI charges $500.00 to pull email and text messaging from a device.”

He also stated that copies of other documents available to the public would be charged at .10¢ per copy and $10 per hour for an employee to retrieve the documents.

Also on April 23, 2021, Black sent Hunter a separate email demanding that, “you and your agents, representatives, associates, business partners, vendors, contractors or any other related persons or entities or persons in your household not destroy, conceal or alter any paper or electronic files and other data generated by and/or stored on computers and storage media (e.g., hard disks, backup tapes, voice mail), or any other electronic data relating to any and all documents; business proposals; contractual proposals; requests for proposals; and/or communications with or concerning the Town of Blythewood, including but not limited to, communications with Barbara Ball, The Voice newspaper; Tonya Page, The Country Chronicle newspaper; Town of Blythewood Councilmen; the Town of Blythewood Mayor; any previously Town of Blythewood elected officials; and any other person or entity previously or presently associated with the Town of Blythewood from October 1, 2020 through present.

“Out of an abundance of caution, we are outlining below some of the demands about the preservation of evidence and records relevant to this matter,” Black wrote. That outline is six pages of complex details.

 The Freedom of Information statute does not provide for a government to FOIA a private individual or company, and there is no obligation for a private citizen/company, to retain records unless ordered by a court. No lawsuit has been filed by either party. However, if council members are corresponding with a private citizen/company about town business, then those records on the devices of the council members would at least be subject to FOIA and must be produced by those council members if requested.

NP Strategies, a wholly owned subsidiary of Nexsen Pruet, was one of the two unsuccessful applicants for the promotions contract that town council awarded to MPA Strategies. The Greater Blythewood Chamber of Commerce is the third applicant and was favored for the award by both Franklin and Baughman.

This issue concerning MPA Strategies was on the agenda in two places for the town council meeting on Monday night.

“Marketing Contract with State and Frink Foundation (the name of MPA Strategies’ non-profit)” was listed under II. DISCUSSION ITEMS, and under EXECUTIVE SESSION it was listed as, “Discussion of negotiations incidental to proposed contractual arrangements …”

When council voted to go into executive session at the end of the meeting, The Voice asked Franklin whether the contract had already been signed by all parties. Franklin confirmed that it had, and council still proceeded into executive session to discuss the contract.

Sec. 30-4-40 (5) of the FOIA, provides for discussions incidental to proposed contractual arrangements to be discussed in executive session, but once a contract is entered into and signed by all parties, it must be discussed in public session.

During the Monday night meeting, Franklin read the following statement concerning the town’s relationship with MPA Strategies:

“The Town recently entered into a contract with MPA Strategies to provide public relations and marketing services. MPA will begin work May 1, and we look forward to working with them. MPA will be at the town hall on one Tuesday a month, and I hope you all will stop by and say hello.

“Some of you have asked whether the Town is in a dispute or lawsuit with MPA. The Town is not presently in a lawsuit with MPA. However, Ms. Hunter, MPA’s CEO, initiated a FOIA request and has made certain legal demands [not made available] The Town is simply responding to Ms. Hunter’s request. We are doing this through our independent outside legal counsel, David Black from Nexsen Pruet. Because of her requests, our outside counsel has requested that the Town preserve certain information. Ms. Hunter has requested that the Town and all councilmen preserve certain information and not delete communications from their phones and other devices. I believe all councilmen are complying. The Town has 30 days to respond to Ms. Hunter’s FOIA requests. Any further questions on this issue should be addressed to David Black at Nexsen Pruet at (803) 540-2072.”

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