Diary of a Bad Decision-Questions Arise Concerning the Process of Approving the Freedom Parkway Admin Complex
Ethical, Legal, Constitutional and Common Sense Questions Abound
Introduction
What is it about the new Forsyth County administration complex presently under construction on Freedom Parkway that is so mind-bending, that after learning of serious legal and constitutional prohibitions affecting the Forsyth County Board of Commissioners’ use of that facility, individuals with an apparent duty to disclose would not immediately share their knowledge of those restrictions among all decision-making county commissioners?
Serious questions have surfaced regarding an apparent withholding of vital information necessary for each commissioner to have rendered a fully-informed decision when voting to accept the contract to build a $114 million facility, a contract approved during the January 18, 2024 Forsyth County Board of Commissioners (BOC) meeting. That was when, by the slimmest of margins, 3 to 2, the commissioners voted to proceed with the facility’s construction. The total project cost to build the facility, including land, utilities and other costs would top $134 million, not counting change orders, all paid with public funds. Breaking those costs down, on average, based upon a Forsyth County population of 270,000, this administration complex would cost a family of four almost $2000 just to build.
The public should know, the Forsyth County Code of Ethics does not allow elected officials, or employees, to “knowingly withhold any information that would impair the proper decision making of the board of any of the county's boards, agencies, authorities, or department.” Had each member of the BOC been informed of all legal and constitutional restrictions associated with the new admin facility location at the time that information was first discovered, it is questionable whether any movement to build the new complex outside of the “county site” would have continued beyond where the project stood at that time.
Legal and Constitutional Prohibitions Associated with the Freedom Parkway Location Identified a Full Year Before the Vote
With respect to where county commissions can lawfully “deliberate” and “vote” in Georgia, in an email recently obtained through open records, sent from County Attorney Ken Jarrard to County Manager David McKee on February 6, 2023, Mr. Jarrard provided the county manager with the following information. (The entire email can be read further below.)
That day, the Forsyth County Manager received information pertaining to long-standing Georgia constitutional law prohibiting “official county business” from being conducted outside of the county site, defining the term, “official county business,” to include both “deliberation” and “voting,” The county attorney wrote to Mr. McKee, “There is Georgia Authority that any “deliberation and voting” on any issue must occur at the “county site.””
Below you will find the passage quoted by Mr. Jarrard, including the applicable language of Brewster v. Houston County, 235 Ga. 68 (1975), a case universally regarded as Georgia constitutional law. Thus, at the risk of repeating, according to Brewster “official county business” cannot be conducted outside of the county site. Brewster defines, “official county business,” as the “decision-making process,” which includes both “deliberation” and “voting.”
In his email to Mr. McKee, Mr. Jarrard included certain language from the Brewster opinion, a case he termed , “Georgia Authority.” The Brewster opinion is also cited in the Association of County Commissioners of Georgia (ACCG) Handbook, out of which Mr. Jarrard likely drew his information and conclusion.
The ACCG handbook affirms the Brewster opinion, informing county commissioners that a BOC cannot come to order to deliberate, or to vote, in an official meeting or work session outside of the county site, and does so in Chapter 26, page 542 of its Handbook for County Commissioners, which states the following:
What all that apparently means is that, not only is the Forsyth County Commission restricted from VOTING at the Freedom Parkway location, but as communicated from County Attorney Jarrard to County Manager McKee on February 6, 2023, and as recognized as established Georgia constitutional law, neither can the county commissioners lawfully call-to-order a regular meeting, or work session, and DELIBERATE at that location. According to Brewster, from any location outside the county site, with few exceptions, Georgia law and the Georgia Constitution will only allow a county commission to hear from the public. During a public hearing, no official meeting among the commissioners can be called to lawfully deliberate or vote. Should you attend a Forsyth County Commission meeting during which public participation is scheduled, you will notice that the chairman will elicit a motion to “suspend” the meeting in progress, in other words, to suspend “deliberation,” before the chairman can permit the public to address the commission members. And except for the chairman, who summons and permits the public participants to speak, during a public hearing, county rules do not permit commissioners to speak or make statements, in essence becoming a form of deliberation. They are entitled only to ask questions of any public participant speaking, and only with the permission of the chairman.
Once public participation is complete, the chairman will call the meeting back into session, during which the commissioners will once again begin deliberating.
Thus, the public should not be fooled by certain incomplete information promulgating into the community from county spokespersons. According to Brewster v. Houston County, “deliberation” is different than, and in addition to, “voting.” Deliberation is part of the “decision making process” of the board. In other words, practically every activity that goes on during a county commission meeting once it is “called to order” is “deliberation.” “Voting” is what happens once “deliberation” on any particular issue or subject matter is complete and a question requiring a vote is called.
“Deliberating” and “voting” are virtually everything a board of commissioners might accomplish during any official meeting or work session once it is called to order. To be clear, once a county commission meeting is called into session, the commissioners begin “deliberating” on various issues or subjects listed on an agenda. Just like a jury “deliberates” prior to voting on a verdict, whether one considers an official county commission “meeting,” or a county commission “work session,” both are official gatherings of a quorum of commissioners “authorized to make final decisions for the county,” called-to-order to “deliberate.”
Why has no county spokesperson or representative publicly provided that information?
Prohibition Against BOC Voting-Apparently the Only Restriction Disclosed to the Full Board Prior to Accepting the Contract to Build the Freedom Parkway Complex
During the January 18, 2024 BOC meeting, held virtually one year after learning of the Georgia constitutional prohibitions against the BOC “deliberating and voting” in the new facility, County Manager David McKee and County Attorney Ken Jarrard were asked to address the full Forsyth County Commission, apparently for the first time, concerning any restrictions to BOC activity at the Freedom Parkway location. As they addressed the commissioners, however, each referenced only the voting restriction, failing to mention, at least in language most laymen might understand, the constitutional prohibition against the BOC deliberating at that location. In fact, in the following video segment, Mr. McKee informs the full board of commissioners that the BOC would be free to conduct official meetings and work sessions at the Freedom Parkway facility, in all relevant capacities, except to vote.
Thus, very importantly, minutes before the final vote to accept the contract to build the facility, County Manager McKee expressed what he termed 100% agreement with Mr. Jarrard (Jarrard’s remarks on the subject, in full, will be heard below), soon thereafter leading the full BOC to expect that “work sessions, meetings, everything else as it relates to the commissioners can occur at this building.” Sitting directly behind Mr. McKee, within earshot of the county manager’s remarks, County Attorney Jarrard made no movement to correct Mr. McKee’s perhaps heartfelt, but apparently mistaken remarks.
Minutes after the full BOC heard Mr. McKee describe the supposed “only” legal restriction, one relating to BOC VOTING at the new location, by the slimmest margin of 3 to 2, the Forsyth County Commission elected to accept an approximate $114 million contract to build the new administration building, to include a new, state-of-the-art (commissioner Mills’ term) commissioners’ auditorium, as part of a facility located outside of the county seat (county site) of Cumming. Had the commissioners been fully-informed as to all restrictions associated with BOC activities at the chosen site, given the vote was a mere 3 to 2, we can expect that contract approval might have been more difficult than it was. Thus, much was at stake when the full lot of information necessary for the five-member board to make an informed decision, was apparently never given to them, and apparently never considered. Furthermore, the partial information that was given to them came to the full commission at the midnight hour, moments before the vote, with little time to deliberate and understand the true scope of consequences.
Who Knew What, When?
During the January 18, 2024 county commission meeting, prior to Mr. McKee’s above remarks, and minutes preceding the final vote to accept the contract to build the facility, Commissioner Cindy Mills informed all in attendance that in September of 2023 she was made aware of a legal restriction against BOC voting in the chosen Freedom Parkway location. Voting was the only restriction Commissioner Mills spoke of that evening. Apparently, Georgia constitutional law prohibiting BOC deliberation outside of the county site remained unknown to Commissioner Mills at the time.
Thus, even at that late date, apparently, Commissioner Mills’ did not fully understand the full scope of the constitutional prohibition against the BOC voting, and stated no knowledge concerning the deliberation prohibition.
Shortly after Commissioner Mills publicly identified, for the first time, the restriction against BOC voting in the proposed building location, Chairman Alfred John asked County Attorney Ken Jarrard to address the board regarding the issue Commissioner Mills identified.
By the time Mr. Jarrard was finally asked to publicly address the referenced legal/constitutional voting restrictions to the full Board of Commissioners, as the February 6, 2023 email from him to Mr. McKee bears out, the county attorney had known of the problem for an approximate year. During that time, Mr. Jarrard only spoke publicly about that information during the January 18 meeting, and only after being prompted by Commission Chairman John to address the remarks of Commissioner Mills. Had Mills not brought the issue up, the public may still not know about any of this, even today.
Once Mr. Jarrard completed his remarks, commenting on the county site requirements “baked into” the Georgia Constitution and general laws of the State of Georgia, that was when Chairman John asked County Manager McKee to comment on the voting restriction both he and the county attorney communicated about 11-1/2 months earlier. Here are Mr. McKee’s full remarks on the subject:
In the above video from January 18, 2024, County Manager McKee stated twice a goal of dealing with the referenced voting problem with “eyes wide open.” Yet, according to Chairman Alfred John, the problem with the board voting in the new location was one handed to Mr. McKee by “the previous county manager,” an individual by the name of Kevin Tanner, who left county employment in December of 2022. McKee succeeded Tanner in January of 2023, a full year prior to the January 18, 2024 meeting. According to Chairman John, Mr. McKee might have been aware of the problem for even longer than a year because, as the chairman relates, McKee was a part of a “capital projects” team, and therefore could have had access to this information even prior to taking over the county manager position.
Commissioners Semanson and Hill apparently Learned of the BOC Voting Prohibition the Day of the Final Vote
In the video below, Commissioner Mills chastises the board members for considering approving a contract to build the new Freedom Parkway facility “until we work that (the voting problem) out.”
According to Commissioner Mills, she only learned of the voting restriction, “through the grape vine,” that the county attorney sent an email disclosing that information to the county manager “a year ago,” and that Chairman John “had been aware of it for quite some time.”
Commissioner Mills continued, informing those present that that the only reason she had been informed of the voting restriction was to elicit her help in influencing the city to aid in addressing the problem. According to Mills, she had recently informed Commissioner Todd Levent, doing so approximately one week prior to the January 18 meeting in which she made these remarks. She blamed Chairman John for failing to inform the board members, having known the voting problem, “for quite some time.” Chairman John took no exception to any accusations Commissioner Mills leveled toward him.
Commissioner Laura Semanson then denied being told this critical information until a few minutes prior to the vote, being informed of the voting prohibition literally as Commissioner Mills spoke.
Commissioner Semanson: “This is the first I’ve ever heard of it.”
Commissioner Mills: “Well then, look at your chairman who you elected. He is the person who should be sharing this information…Ken sent an email to our county manager a year ago. The chair has been aware of it for quite some time, and I cannot believe a vote was taken that was irresponsible. And I don’t know why we keep talking about it until we work that out.”
Regarding, Commissioner Kerry Hill’s knowledge of any legal or constitutional restrictions at the proposed facility (Hill is left of center in the following video), Hill would soon reveal, “I found out this morning about the county seat issue. It wasn’t something I that was aware of.” We do not know how, or from whom Commissioner Hill learned that information.
Finally, by his own volunteered public admission, Chairman Alfred John claimed to know about an “issue with the county seat being outside of the city limits,” claiming to have learned that information from the previous county manager, Kevin Tanner, well before Tanner left county employment in December of 2022. Chairman John revealed his knowledge of that issue moments before the contract to build the facility would be approved.
In defense of the votes cast that evening by Commissioners Hill and Semanson, who together with Chairman John comprised the majority that carried the 3 to 2 vote, both of those commissioners, as you just heard, apparently learned of the voting prohibition the same day or even moments before the January 18, 2024 vote. Apparently, as they voted the only real details either of them had been given about BOC restrictions at the Freedom Parkway site, were expressed to them that evening by Commissioner Mills, Mr. Jarrard, Mr. McKee and Chairman John. If what Commissioners Semanson and Hill claimed is true, essentially being blind-sided at the last minute, we can expect each arrived at the meeting anticipating nothing of major consequence, and with a mindset that they would vote to accept the contract on the published agenda.
Furthermore, in the previous video, building on Hill’s and Semanson’s faith that all would be well, we heard Mr. McKee seemingly assuring the commissioners, “We do have some time…there is a number of ways we can do that.” Bolstering the assurances pledged by Mr. McKee, we heard Mr. Jarrard express, “There are various methods we can overcome it…and we would have some time to do it.” And all through his remarks, Mr. Jarrard seemingly chose words tending to minimize the perceived impact of any legal and constitutional restrictions regarding the use of the proposed facility, saying for example, “It’s an old, archaic law,” as if the reason for the law is no longer necessary. Accordingly, if the law is no longer necessary, it should not be difficult to rescind. Again, minimizing the problem, Mr. Jarrard informed the commissioners, the state delegation “thought it was a little more complicated than they thought it was going to be.” That kind of language tends to lead a listener to expect that the problem is smaller than it really is, but just “a little more complicated” than the delegation expected, and could therefore be suitably resolved once a little more time and energy might be applied to the problem.
The difficulty with Mr. McKee and Mr. Jarrard using that kind of minimalist language is that the legal and constitutional impediment we are talking about is not a small one. It is monumental. For the sake of edifying the decision-makers, each should have described the problem facing the commissioners to its fullness. The prohibitions against the BOC operating out of the Freedom Parkway site will not be resolved by putting a little more energy toward them. As you will see again below, in the full February 6, 2023 email sent from Ken Jarrard to David McKee, in the very first line Jarrard says, “The notion of a ‘county site’ is baked into both the Georgia Constitution and the general laws of the State of Georgia.” The term, “baked into” means the notion of a county site is an inseparable part of the Georgia Constitution and general laws of the State of Georgia. Thus, the notion of a “county site” in Georgia appears practically impossible to separate from the constitutional and legal fabric of the state. Note the difference between the words used by both the county manager and county attorney when addressing the full board of commissioners on January 18, 2024, versus the words of Mr. Jarrard sent to Mr. McKee on February 6, 2023, words which much more accurately described the stark reality of the situation.
And if you listen closely to Mr. Jarrard’s response, the county attorney admitted the law “does affect voting.” But in the next sentence he paired that statement expressing, “it does affect our ability to take official action.” While voting would be certainly be an official action, according to his February 6, 2023 email to Mr. McKee, so would deliberation. In his remarks, Mr. Jarrard appeared to categorize two seemingly similar, however possibly distinctly different prohibitions for the BOC to consider. And he stated them in a way that a casual listener might easily expect to reference the same prohibition. I am not convinced that was his purpose. The county attorney obviously knew what the law says and means. He had known about two, separately-described legal and constitutional prohibitions against the BOC’s use of the new facility for approximately a year, and perhaps longer. He identified those two restrictions, “voting” and “deliberation,” to County Manager McKee in February of 2023. At that time, Mr. Jarrard let Mr. McKee know that those prohibitions were “baked into” the Georgia Constitution and laws of the state. Thus, when he addressed the BOC members on January 18, 2024, one would think the county’s attorney would have spoken concerning both of those restrictions, using clear language, when asked to comment during the meeting, immediately prior to a final contract vote.
So, let’s parse this out for a minute. On February 6, 2023, County Attorney Jarrard obviously understood there were two “baked in” constitutional prohibitions against the use of the new Freedom Parkway facility by the Forsyth Board of Commissioners. Those restrictions are written into the Brewster v. Houston County opinion, long established as constitutional law in Georgia. In that opinion, one restriction certainly pertained to voting. The other, however, pertained to, doing “official county business,” a term Mr. Jarrard appeared to approximate using his own term, “take official action.” Mr. Jarrard obviously knew that established Georgia constitutional law recognizes doing “official county business” as both “voting” and “deliberation.” He sent that information to Mr. McKee over 11 months earlier. And so, without saying it in a way that laypersons might necessarily understand, apparently, the county attorney may be able to claim he informed the full board of commissioners of both restrictions before they voted to accept the contract.
Technically, having said what he did, and how he said it, it would have been up to the commissioners to ask Mr. Jarrard what he meant by the phrase, “taking official action,” which no one did because apparently no one understood any difference between “voting” and “taking official action,” at least in the manner in which Mr. Jarrard might have been speaking. Regardless whether Mr. Jarrard might ever claim that he fulfilled his responsibilities disclosing any legal and constitutional restrictions facing the board in time for the commissioners to render an informed vote, recalling his stated county loyalty, it appears the county attorney could have been more transparent and forthcoming that evening, and for all the months he was aware of that vital information.
Finalizing this Analysis
For the sake of completing this analysis, recalling the previous video, Mr. McKee described that the legal problems under discussion were in his words, “stumbled upon by accident after we purchased the land.” The land to which Mr. McKee referred, on which the administrative complex is presently being constructed, was purchased in early September of 2021, a quitclaim deed finalizing the transaction recorded on September 9th of that year. The price of the property was $5.4 million, paid to 400 Pilgrim LLC.
Thus, as expressed by Forsyth County Manager McKee during the January 18, 2024 meeting, the voting prohibition associated with the site on Freedom Parkway was discovered sometime during the 27 month period between September 9, 2021, but before January 18, 2024 the day of the meeting in question. That is as narrow as Mr. McKee got with the commissioners that evening.
Just over two months ago, during a November 26, 2024 county commission work session, County Manager McKee admitted knowing of the legal problem associated with the board voting at the chosen site as early as March 6, 2023, as during that meeting he moved to correct a statement made by Commissioner Mills, Mr. McKee claiming to have communicated the problem to State Representative Lauren McDonald on that day.
But, as I reported in my December 6 Substack entitled, Forsyth Officials Apparently Attempt to Hide Quid Pro Quo Deal Proposed to City, Mr. McKee made a mistake in his recollection of dates. We know that because in the video the county manager insisted that he made the request of Rep. McDonald on the same day McDonald dropped the associated bill in the hopper, a physical impossibility, which confirms the request of McDonald occurring much earlier than McKee indicated.
Below is the entire February 6, 2023 email from Mr. McKee to Rep. Lauren McDonald (name redacted as McKee used McDonald’s personal email address) which Mr. McKee mistakenly claimed he sent after the vote to accept the building contract.
Above you will see, in red, the change to local legislation County Attorney Ken Jarrard proposed and emailed to Mr. McKee, who transmitted it Representative McDonald, all on February 6, 2023, certifying the county attorney and county manager had knowledge of the voting prohibition, but as well a “deliberation” prohibition (See #VI above). Again, all that I describe occurred approximately 11-1/2 months prior to the vote to accept the contract to build the Freedom Parkway facility. Apparently, none of this information was given to the full BOC until moments before the final vote to accept the contract to build the Freedom Parkway facility, and that information only pertained to BOC voting.
During a recent public event, State Representative Lauren McDonald expressed his side of the story involving the attempt by Mr. Jarrard and Mr. McKee to rewrite a local law governing the county site:
Quoting Rep. McDonald, “In 2023, in late January or February, it was known you could not vote in this building.” Thus, certainly in my opinion, any movement toward building the Freedom Parkway Administration facility should have halted at that time while the project received a complete top-to-bottom review. Apparently, however, it would be another eight months before any commissioner, other than Chairman John, she being Commissioner Mills, would be informed of any county site issues.
What Happens if the BOC Deliberates and Votes at the Freedom Parkway Location?
At the same recent event, Georgia Representative Brent Cox was asked to shed light on what would occur should the Forsyth County Board of Commissioners decide to meet and vote at the Freedom Parkway location regardless of state law and Georgia Constitution prohibitions. Here was his response:
Thus, should the BOC decide to operate outside of established constitutional law in Georgia, there could be, and likely would be, lawsuits. And according to Representative Cox, should the county lose in court, any votes taken during the meantime could be voided.
Chairman John’s Contention that All Other Commissioners Had Been Apprised of the “Issue with the County Seat being Outside the Cumming City Limit”
Above we heard from Commission Chairman Alfred John, that the previous county manager apprised him of “an issue of the Freedom Parkway location being outside the Cumming city limit.” Chairman John did not express the nature of that issue, only that he “was told by the previous county manager” and that he was told that the previous county manager also apprised “all the other commissioners” of that same information. During the January 18, 2024 BOC meeting, Commissioner Mills stated, “The chair has been aware of it (the legal voting restriction) for quite some time.” Yet, in over a year of public meetings, given every chance to open such a discussion, according to the other commissioners, apparently, Chairman John never communicated with them about any legal problems he had learned from anyone, including the previous county manager. According to the other commissioners, Chairman John never addressed those concerns with any of them, either openly or privately.
If the chairman’s January 18 remarks were truthful, why did he not raise such a significant issue with any of the other commissioners, whom he claimed to believe had been “apprised of the problem?” If the chairman’s statements were true, and if the chairman were operating forthrightly, why would he not raise the issue, either publicly or privately, to understand each of the commissioner’s viewpoints on a serious issue prohibiting certain vital board activity at the proposed Freedom Parkway facility? Those are questions the chairman must answer, because as it occurred during the meeting of January 18, 2024, the only reason Chairman John spoke on that subject to begin with, his remarks registering only moments before the final vote, was because he was apparently forced to respond to the pointed remarks of Commissioner Mills, remarks which made certain significant legal and constitutional problems with the location of the proposed facility public for the first time. Perhaps someone should speak to Mr. Tanner to discover whether anything Chairman John reported involving the previous county manager’s knowledge or statements to him might be true.
Summary
Approximately 11-1/2 months prior to a vote by the Forsyth County Board of Commissioners to accept a $114 million contract to build a proposed administration complex outside of the constitutionally defined “county site,” we know that certain information had surfaced placing the viability of that location in jeopardy. The night of the vote to accept the contract, Commission Chairman Alfred John publicly admitted prior knowledge of an “issue with the county seat being outside of the city limits.” According to Chairman John, he received that information from the previous county manager even before any related information was communicated to the present county manager on February 6, 2023. According to Chairman John, he asked the previous county manager whether all other commissioners had been apprised of that information. According to Chairman John, he “was told, “yes.”
During the time between learning of that “issue,” and the vote to accept the contract to build the facility, according to the other four commissioners, Chairman John never communicated any “county seat issue” with them. Referencing Forsyth County Ethics Rule 2-87, apparently Chairman John’s only implied defense for not communicating the county seat issue with the other commissioners would be his belief that “all commissioners had been apprised.”
For the entire time between the moment Chairman John was told about the “issue” he referenced, and the time during which the county attorney and county manager discovered and attempted to solve a certain issue “with the county seat being outside of the city limits,” no one raised that issue during a public meeting of the Forsyth Board of Commissioners, or apparently in private with the commissioners, leaving the situation where it is today. Had Commissioner Mills not raised the issue when she did, it is doubtful anyone would know about it, even today.
These questions, and more, must be answered:
Exactly what “issue” did the “previous county manager” inform Chairman Alfred John about, and when?
Once County Attorney Jarrard informed County Manager McKee of the law restricting the BOC’s activity outside of the “county site,” did Mr. McKee relay that information to any of the board members, perhaps Chairman John?
If so, when?
If not, why would the county manager not inform all commissioners of that vital information?
Was the county manager instructed not to speak to four board members about the issues with the county seat in Mr. Jarrard’s February 6, 2023 email?
If so, who issued such an instruction?
Did the county manager instruct the county attorney not to speak to board members about the issues with the county seat in Mr. Jarrard’s February 6, 2023 email?
During the January 18, 2024 BOC meeting, Mr. Jarrard says to the board, “I speak to all of you and am loyal to the county.” Since Mr. Jarrard speaks with all of the commissioners, why would he not choose an opportunity to disclose to each of the commissioners the same information he emailed to county manager McKee?
During the January 18, 2024 meeting, when County Manager McKee explained the voting prohibition to the full board of commissioners, but disclosed nothing about any restriction on the BOC meeting to deliberate at the new facility, why did County Attorney Jarrard not interject to describe a more complete picture of the situation to the board members once Mr. McKee completed his remarks?
Should ethics charges be filed against anyone with an obligation to disclose, and who knew and failed to disclose vital information affecting the viability of Freedom Parkway Administration project?
Is this the kind of county government the people of Forsyth County want and deserve?
Thus, just so you know, this is how your local Forsyth County Government works. Among certain players positively-informed of vitally important, even game-changing legal and constitutional BOC prohibitions associated with the Freedom Parkway building site, one would expect at least one of them with that knowledge would have informed the final decision-makers so that they might at least make an informed vote. Apparently, that is not so. Apparently, making informed decisions with massive amounts of taxpayer dollars, costing households thousands of dollars each, is not a priority with the regime presently holding power in Forsyth County.
It’s like their own little USAID organization.
$134 million for a facility that cannot legally be used. The Forsyth County Commissioners have failed the taxpayers.