Attorney documents suggest $1.14 million Preston buyout not necessary

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By Stan Welch

The Anderson County Council recently voted to waive the attorney/client privilege between the 2008 Council and attorney Tom Bright, whose firm of Ogletree & Deakins represented the County in the action brought by former county administrator Joey Preston against the County.

As a result of the claim by Preston that his contract had been “anticipatorily breached”, the Council, including three lame ducks, gave Preston a severance package valued at $1.14 million.

The incoming Council immediately initiated an inquiry into Preston’s administration, as well as into the actions of the Council in approving the buyout. They also filed a lawsuit to recover the severance package. That lawsuit continues through the courts.

Until the Council vote a few weeks ago to waive the privilege, making the information obtainable under the SCFOIA, there had been only glimmers of how the buyout came together. Councilwoman Cindy Wilson, for example, stated publicly on more than one occasion, that Bright had advised the Council that Preston’s claims were very weak and recommended simply letting Preston’s contract expire at the end of the year.

Documents recently released support Wilson’s statements. In a report presented to the personnel committee, which also included lame duck Council members Larry Greer and Bill McAbee. Bright stated his opinion that there was no anticipatory breach, based on several legal criteria to meet that definition.

Bright also cited three other attorneys whose opinions agreed with his that the contract was voidable; i.e., the actions of the 2008 Council could not bind the hands of the incoming Council.

He offered several possible courses of action, ranging from simply writing a letter back contesting the idea of an anticipatory breach to doing nothing and letting the new Council handle it to paying out the existing contract, but not at the amount Preston claimed.

Instead, then personnel committee chairman Ron Wilson, according to his own statements on the record the night of November 18, 2008, acted unilaterally, without any knowledge by other Council members, and ordered Bright “to hammer out an agreement with Preston so we can move on.”

Bright did so, but Wilson’s actions were hardly unilateral or without prior knowledge of other members of Council. Wilson, who had both a collegial relationship with Preston (both were members and officers of the Manse Jolly Camp of the Sons of Confederate Veterans) as well as a personal relationship, clearly kept Greer and McAbee in the loop.

A timeline of events provided to the Council by Bright indicate that the entire personnel committee attended a meeting at the Powdersville library on October 27. Also in attendance were Cindy Wilson and Bob Waldrep, who also attended the executive session which comprised part of the meeting.

At a November 4 meeting, just two weeks before the meeting at which Preston accepted the severance package, Wilson and Waldrep were banned from that meeting, which also included an executive session with Tom Bright.

According to Bright’s personal notes on that meeting, Wilson expressed his desire to work something out with Preston “as quickly as possible”. Wilson also stated his original opposition to Preston but said he had been swayed to support him. Wilson’s daughter would subsequently be awarded a lucrative contract with the County just days before Preston’s buyout.

Greer said Preston had made mistakes, mostly of a public relations nature, and it was time for him to go; but he also said Preston had done a lot for economic development in the area. He also told Bright there were two ways to fund the buyout – amend the budget, which would require three readings, or transfer funds into a special account .

Wilson and Bright met again on November 11 and Wilson told Bright he wanted to end the situation, citing the high cost of litigation and the turmoil that would continue in the county during that litigation. He told Bright to use the figure of $1.1 million to get negotiations moving.

At the November 18 meeting, despite Ron Wilson’s claims that he was acting alone, Greer produced a list of more than 100 accounts from which funds could be transferred. Councilwoman Gracie Floyd produced an employment contract immediately following Preston’s buyout, which named Michael Cunningham as the new administrator.

The details of the Preston buyout were still evolving as late as five o’clock the evening of the Council meeting, leaving virtually no time to read or review the agreement, a complaint that Cindy Wilson and Bob Waldrep made repeatedly.

Other documents released by the County this week indicate that Easley attorney Candy Kern Fuller, who was introduced by Councilwoman Gracie Floyd as her personal attorney at a January 2009 Council meeting, and who subsequently filed several lawsuits against the County, and various Council members, was involved even before Preston’s buyout.

Bright’s personal notes concerning a November 10 meeting with Preston, and his attorney from the Foster Law Firm, Rob Hoskins, also indicate that Kern Fuller was present. Kern Fuller worked for the Foster Law Firm at one time, before leaving to start her own practice.

The events of that November 18 meeting are currently a part of the state grand jury investigation into the Preston administration and other matters.