BLYTHEWOOD – The Town of Blythewood and MPA Strategies have reached a settlement.
The settlement concerns MPA’s Freedom of Information lawsuit against the Town and the countersuit filed by the Town against MPA. It was signed Dec. 28, 2023 by both parties – the Town and MPA’s owner and CEO, Ashley Hunter.
However, the Town’s former attorney of record in both suits, David Black, an attorney with Maynard Nexson Law Firm, has refused to file the settlement with the Courts or to step aside as the Town’s attorney of record and permit MPA attorney Paul Porter, with Cromer, Babb & Porter Law Firm, to make the filing, even though the Town fired him (Black) effective Dec. 11, 2023.
In a Dec. 29, 2023, email to Porter, Black stated that, “As the attorney of record in this matter for the Town of Blythewood, you do not have my permission to make the filing. As you are fully aware, my firm was not involved in this settlement proposal and, pursuant to the prior special referee motion and request, believe the proposal severely harms the Town and its citizens.”
In a Motion to Enforce Settlement, filed by Porter on Tuesday, Jan. 2, 2023, Porter asked the Court to dismiss the case with prejudice and enforce the settlement as set forth in the parties’ signed agreement.
In his motion, which is available on the Richland County Public Index, Porter tells the story of the lawsuit from the beginning.
The Voice reached out to David Black for comment on Porter’s motion, but received the following automated response: “I am out of the office through January 5, 2024 and unable to receive email. I will respond to your message after I return on January 5, 2024.”
The Case
“This case started over a routine, yet legally indisputable FOIA violation by the Defendant Town,” Porter began. “The genesis of the case was that the Defendant Town blew the deadline to produce records under FOIA in violation of S.C. Code 30-4-30(C) without getting or even asking for an extension by mutual written consent.”
Porter wrote that, in response, Black filed eight non-compulsory counterclaims essentially alleging that Hunter defrauded the Defendant Town into entering a contract with it (the Town) to provide marketing and grant writing services.
The total value of the contract was $48,000 per year or $4,000 per month, and it could be terminated at-will, according to Porter.
The core premise of the Town’s counterclaims is that it says Hunter misled the Town into believing she would form a 501(C)(3) to be paid with accommodations tax money when she instead formed a different kind of nonprofit corporation, the motion stated.
“Nothing in the A-tax statue (SC Code 6-4-10(3) requires a recipient of A-tax funds to be a 501(C)(3),” Porter wrote. He also wrote that all Hunter can recover from an FOI claim is costs and attorney fees which, for her, were about $46,000.
“The case has been litigated for two-and-a-half years over a reasonable and finite amount of attorney’s fees on the part of Hunter, and counterclaims over a contract that could have been terminated at-will with the payment of an $8,000 two-month notice payout,” the motion states.
The Town has spent over $700,000 on attorney fees and has agreed to pay Hunter $36,000 to settle the two cases. Still pending is a defamation lawsuit filed by Hunter against Franklin last year. That suit is being handled and paid for by the Town’s insurance provider.
“Elections have consequences. Counsel of record cannot disregard the directives of its client based on individual determination about what is best for the Town.
— Paul Porter, MPA’s Attorney
2023 Election
“This case was heavily covered by the local media in Blythewood, and to a lesser extent state-wide media,” Porter stated. In that regard, he noted that former Mayor Bryan Franklin was responsible at the Town level for decisions relating to the MPA legal issues. When the Town held a council and mayoral election in November, 2023, the Town’s citizens voted 562-245 (69 percent) to unseat Franklin.
Porter said that Blythewood is a strong-mayor form of government, and by virtue of the Blythewood Code of Ordinance, Chapter 31, and council’s vote, the Mayor of Blythewood has the authority to dictate and decide what happens with this litigation concerning MPA.
At the Dec. 5, 2023 town council meeting, Black, as attorney of record, was directed to explore settlement with Hunter.
Instead, in a Dec. 6 email, Black accused Porter of inappropriate communication and then filed an “emergency” motion to have this case referred to a special referee to take over the case because Black claims council member Donald Brock and another council member have “conflicts of interest adverse to the Town’s interest in this litigation,” the motion states.
According to the motion, it was Black’s determination that it would be in the best interest of the Town to continue the costly litigation.
The motion states that “Black did not engage Hunter in settlement discussions until 4:45 p.m. on a Friday afternoon.” That settlement offer, which was not authorized by the new mayor or council, asked for a mutual release, with Hunter paying the Town $3,000.
Prior to the newly elected Mayor firing Black and the other outside attorneys associated with the MPA case, including attorney Shannon Burnett, on or prior to Dec. 11, 2023, and disclosing that the Town had paid more than $700,000 to those attorneys, the Town had refused to share its legal fees and costs with the pubic or even certain members of council.
The position taken by Black is anti-democratic, according to the motion.
“Blythewood’s citizens, having been inundated with media coverage about this case for the past several years, voted to elect a strong Mayor and a majority of council who opposed the continuation of this costly and unnecessary litigation,” the motion stated.
“Elections have consequences,” the motion stated. “Counsel of record (Black) cannot disregard the directives of its client (the Town) based on (Black’s) individual determination about what is best for the Town. This principle is well-articulated by case law prohibiting a predecessor council from binding a successor council on governmental matters (which would include directions about how government litigation is conducted.)”
Black was not elected, according to the motion. Council was elected.
“By refusing to abide by the terms of a settlement agreement that the Town has agreed to and entered, Black is usurping the province of the voters who democratically elected their leaders,” Porter wrote.
Porter said Black, as the attorney of record, must follow his client’s directives.
His client in this case – based on the Town’s form of government and the 11/28/23 vote of Council – is the Defendant Town’s Mayor. Defendant’s record counsel (Black) is not free to make decisions based on what he personally believes is best for the town, according to the motion.
“After all, whether or not to settle a case is the choice of the client, not their lawyer,” Porter said.
“The ethical rules of professional conduct make this clear:
“The parties’ settlement agreement, signed by a strong mayor who had additional authority to settle this matter through an explicit vote of council, is legal and enforceable. The Defendant Town’s counsel of record (Black) was duty-bound to enter a stipulation of dismissal as stated in that settlement agreement and as directed by his client,” Porter wrote in the motion.
As of press time on Wednesday, Black had still not voluntarily relinquished being the attorney of record for the Town.
However, the Town’s municipal attorney, Pete Balthazor, did file a request with the Court on Tuesday afternoon to be the Town’s attorney of record.
The next town council meeting is set for Monday, January 22, 2023.
