Note: the following does not mean that any law enforcement agency has taken any action on the allegations in the complaint filed by a private party.

Press Release from Gwinnett Ethics Inc.:

Press Release, Snellville Mayor Kelly Kautz Criminal Complaint 07/03/2013. As presented to the Gwinnett County DA on this day

In response to a number of complaints, Gwinnett Ethics Inc has been investigation Snellville’s city government for the past few months. We have found that government to be largely open and transparent, with the notable exception of the mayor’s office.

Based on our findings, we believe that Kelly Kautz unquestionably violated the city charter and committed both civil and criminal offenses in an effort to personally benefit from her position. The most egregious issue is her use of public funds for personal gain.

The first case is a result a lawsuit that claimed Kautz violated a citizen’s First Amendment rights. Fearing that a negative outcome could result in her losing her law license, Kautz illegally hired an assistant city attorney to defend her. Subsequently, she bypassed the standard legal payment protocol and ordered payment of the attorney’s invoice without the knowledge of the city council or city manager.

Kautz claims that she hired the law firm of Cruser & Mitchell to defend the city, which was already being represented by Gray, Rust, St. Amand, Moffett & Brieske a firm retained by the city’s insurance carrier, and by city attorney Webb, Tanner, Powell, Mertz & Wilson. There was no need for additional legal representation for the city, yet based on her concern about losing her law license, there was definitely a need for personal representation. However, Kautz never hired a personal attorney, which indicates she planned to have Cruser & Mitchell, hired at city expense, defend her.

After illegally retaining Cruser & Mitchell, Kautz circumvented the standard protocol for payment and illegally directed a staff member to pay a Cruser & Mitchell invoice without the knowledge of the city council or the city manager.

The second known case of Kautz’s misuse of public funds involves the payment of $2000 for tuition to attend “Leadership Gwinnett”, a personal enrichment course. Kautz claims that the council approved the payment, yet no vote was ever taken.

Gwinnett Ethics has filed a complaint with the Gwinnett County District Attorney’s office, requesting the investigation necessary to properly prosecute Kautz for the crimes we believe she has committed, which include, but are not limited to theft by taking, theft by deception (both felonies) and unprofessional conduct (malfeasance, a misdemeanor).

The following complaints were filed today against Snellville Mayor Kelly Kautz:

Criminal Complaint Snellville Mayor Kelly Kautz 07/03/2013

After a lengthy investigation which has included obtaining correspondence through an open records request and interviews with council members, Gwinnett Ethics believes there is ample evidence that Snellville mayor Kelly Kautz has committed felony and misdemeanor offenses by using public funds for personal benefit on at least two occasions. We further believe that Kautz committed these acts intentionally and then purposefully lied in her attempt to cover up her actions

 

Case 1

 

Background

At the July 23, 2012 Snellville city council meeting, Kautz called citizen Marilyn Swinney out of order and directed that Swinney’s microphone be turned off. Subsequently, Swinney filed suit against Kautz individually and against the city of Snellville for violation of her civil rights. The City of Snellville’s insurance specifically covers the costs of defending the city as well as individual elected officials in cases such as this, with the City Attorney (Tony Powell) serving in a liaison capacity.

Relevant Facts

E-mails document that Kautz expressed concern that the lawsuit resulting from her actions could result in the loss of her license to practice law. The City Attorney advised Kautz that the best interest of the city could be at odds with her personal best interests. Because of these potentially opposing interests, he further advised that he could not represent her personally, and that it would be prudent to hire her own attorney to protect her personal interests, (not related to being mayor) in the event of an unfavorable finding..

In an attempt to have public funds cover the defense of her personal, private interests, Kautz claimed that Powell had a conflict of interest because he was present and serving as City Attorney when she ordered Swinney’s microphone to be turned off. She further alleged that she needed to hire another law firm to serve in an assistant City Attorney role and represent the city. Without council approval, she subsequently hired Nola Jackson of the firm of Cruser and Mitchell to serve in an assistant City Attorney role. That hiring was a clear and intentional violation of Section 3.12 of the City Charter which states that the hiring of assistant city attorneys must be authorized.

After illegally hiring Cruser & Mitchell, Kautz violated the city charter again by directly payment. According to the city’s charter, section 3.14 (d), “Except for the purposes of inquiries and investigations, the mayor, the city council, and council members shall deal with city officers and employees who are subject to the direction and supervision of the city manager solely through the city manager; and the mayor, the city council, or council members shall not give orders to any such city officer or employee, either publicly or privately.”

In spite of that section of the charter, on 12/27/13, Kautz directly ordered a member of the accounting department to pay an invoice submitted by Cruser & Mitchell, without the knowledge of the council and without the knowledge of the city manager. The check for the invoice in the amount of $1385.00 is dated 12/28/13. This invoice was addressed to Kelly Kautz, with NO mention of the City of Snellville. Subsequent invoices for work performed on city matters were addressed to city manager Butch Sanders, City of Snellville. All charges on the invoice at issue pertain to issues regarding the “Swinney case”.

We believe the intentional bypassing of standard payment procedures and the expedited issuance of a check (the day after the invoice was illegally approved for payment) clearly demonstrates Kautz’s planned and intentional use of city funds to pay for her personal defense. This finding is further bolstered by the fact that she never privately hired an attorney to defend her personal interests, even though she expressed concerns that she could lose her law license.

Additional Facts

Kautz’s efforts to use city funds for her personal defense included her attempted firing of City Attorney Tony Powell. Although she claimed Powell had a conflict, both the Georgia State Bar and the general counsel of the Georgia Municipal Association determined that he did not. Consequently, there was no need for an assistant city attorney. Faced with that response, Kautz made several attempts to fire Powell. When Powell advised Kautz she did not have the power to unilaterally fire the City Attorney, she responded by filing a lawsuit in Gwinnett County Superior Court. Judge Timothy Hamil ruled that Kautz was incorrect.

On November 27, 2012, Kautz sent a memo instructing city staff that a new procedure was to be used when processing attorney invoices. Formerly, the City Manager processed these invoices, but in her memo, Kautz demanded that invoices be sent only to the city manager and herself. She further stated that she would unilaterally determine how and when these invoices would be paid.

Conclusion

Kautz’s actions indicate that she orchestrated an illegal payment and cover up. We believe this matter should be investigated by the District Attorney’s office and that Kautz should be criminally prosecuted for using public funds for her personal benefit.

Case 2

Relevant Facts

In 2012 Kautz enrolled in “Leadership Gwinnett”, a personal enrichment course. Without council approval, she used $2,000 in city funds to pay for a portion of the tuition. She claims the council approved her use of city funds, however, it never came before the council for a vote.

Snellville elected officials have attended Leadership Gwinnett courses in the past, yet have always paid tuition costs themselves and have never used city funds.

Conclusion

This appears to be a relatively simple case of misuse of public funds for private gain. Additionally, it seems to be part of a pattern of abuse, and therefore warrants an investigation to determine if other misuse of public funds has occurred.

Summation

At a minimum, we believe Kautz’s actions are in violation of OCGA sections 16-8-2, 16-8-3 and 45-11-4. We request the investigation necessary to bring formal charges. Documentation obtained through an open records request is attached. Additional documentation exists but is protected by attorney-client privilege.