By Jon GilloolyMarietta Daily Journal Staff Writer
MARIETTA – Six of the seven members of the Cobb Board of Education joined with the Cobb School District on Wednesday to file a lawsuit in Cobb Superior Court against Smyrna Mayor Max Bacon and the Smyrna City Council for allegedly violating the Georgia Open Records Act.
“The city has evaded the Georgia Open Records Act and has acted without substantial justification in failing to comply with the Open Records Act,” according to a complaint filed just before 5 p.m. by school board attorney Clem Doyle of the Marietta law firm Brock, Clay, Calhoun and Rogers.
The complaint requests attorney’s fees and a jury trial.
The action was triggered because of Bacon’s alleged failure to produce documents that school board Chairman Lindsey Tippins repeatedly requested relating to the Jonquil Village tax allocation district project. Last fall, officials approved a $26.2 million TAD subsidy for the redevelopment at the corner of Atlanta and Spring roads.
Reached at his home, Bacon said he had just returned from vacation out West and was unaware the lawsuit had been filed.
“I just think it’s a low point in the history of this county for the school board to sue a municipality over absolutely nothing,” Bacon said.
All Cobb school board members are named as plaintiffs in the lawsuit except Holli Cash, who represents the Smyrna area.
“I’m very disappointed in every member of the school board who supported this,” Bacon said. “When one government brings suit against another government for information it makes everybody look bad.”
Tippins said it didn’t have to end up in court. He said he met with Bacon a couple weeks ago at a Waffle House to give him another chance to produce the documents.
On June 13, the school board voted 5-1 – with Ms. Cash opposing and the Rev. Dr. John Crooks absent – to pursue legal action against Smyrna unless city officials explained how they calculated the $181 million value for the 14-acre Jonquil Village redevelopment.
The issue dates back to Nov. 14 when the school board approved the $26.2 million TAD subsidy for Jonquil Village, a mixed-use project at the site of the present Jonquil Plaza.
A TAD is an incentive for developers to build in blighted areas to increase property values, which results in more tax revenue and requires cooperation between the city, county and school district to quickly repay project bonds.
Before the board approved the Jonquil project in a 6-1 vote, with Tippins opposing, board members complained that supporting financials for the project continued to change.
“There’s an awful lot of misrepresentation in these documents we’ve been given,” Tippins said at the time.
According to the complaint, Bacon promised Tippins during a meeting at Trackside Restaurant after the board’s November vote to produce documents that reveal how officials arrived at the $181 million figure.
When Bacon failed to do this, Tippins sent him an request under the Georgia Open Records Act.
Smyrna City Administrator Wayne Wright tells Tippins in a May 17 letter in response to his open records request that Tampa, Fla.-based developer, A.G. Armstrong did not want the numbers made public.
“It may be helpful to remind you that the detailed cost estimates you seek are proprietary information that has been retained by the developers of Jonquil Village,” Wright states in his letter, which is an exhibit in the complaint.
Another exhibit includes a May 16 letter sent from the Armstrong’s Atlanta-based attorneys, Hartman, Simons, Spielman & Wood, to school board attorney Glenn Brock, accusing Tippins of challenging Smyrna’s use of TAD financing to further his personal business interests.
“To the extent that Mr. Tippins is taking action in his capacity as chairman of the Cobb County Board of Education to further his personal interests, Mr. Tippins’ conduct is contrary to the Cobb County School District Board members’ Code of Conduct,” the letter states.
Tippins said he has no business interests in Smyrna.
The importance of the documents that detail how the $181 million number was reached, the suit alleges, is significant “because it is inextricably linked to other aspects of TAD financing particularly in relationship to the ability of the tax increment to retire bonds in a timely manner, and the potential adverse financial impact on the school district and its tax payers.”
The lawsuit alleges that Bacon and other Smyrna officials failed to keep copies the documents to shield them from the Open Records Act.
“The defendants intentionally did not retain copies of the requested documents when they reviewed them,” the complaint states.
The complaint argues that even though Smyrna officials failed to keep copies, they still must be produced.
“The defendants cannot avoid their disclosure obligations under the Open Records Act merely because the requested documents may be in the physical possession of a private developer (or other third party),” the complaint states.
Bacon said the school board and county commission had access to the documents, arguing if they were important they should have copied them themselves.
“The school board had these documents. The county had these documents. If the documents were so important why didn’t they keep copies of them?” Bacon asked.
Bacon suggested that the school district’s chief financial officer, Robert Morales, had them.
“I don’t know why (Tippins) hasn’t started with his staff. Morales may have the numbers,” he said.
Tippins said that logic doesn’t make sense.
“If everybody had access to the documents we wouldn’t be in court,” he said.
Bacon said the lawsuit only would divert money from funding education to attorneys.
“It’s very disappointing to see money for the education of children used to sue the city over information the county and Morales had,” Bacon said.
To see the article in its entirety, go to http://www.mdjonline.com/articles/2007/06/21/268/10263143.txt