Sunday, April 2, 2023

With power shift, new H2GO board lifts staff gag order, litigation attorney resigns

A majority of voters shifted Brunswick Regional Water and Sewer H2GO’s political stance from 3-2 against to 4-1 in favor of building a reverse osmosis plant. (Port City Daily/File)

BRUNSWICK COUNTY — The pendulum of power has swung in northern Brunswick County with the installation of two new Brunswick Regional Water and Sewer H2GO board members on Tuesday.

H2GO’s new board accepted the resignation of its two-year litigation attorney, reversed a staff gag order officials have described as restrictive, and restructured its litigation committee — all at its first regular meeting.

Related: Two years in: Legal spending on H2GO case reaches nearly $2 million

Now, H2GO’s board is 4-1 in favor of moving ahead of its partially-constructed reverse osmosis (RO) plant, which has been stalled by an ongoing lawsuit. It’s also 4-1 in line with the objectives of the Town of Belville, signaling a major power shift after two years of 3-2 lockstep voting, generally opposed to the construction of the plant.

New board, new rules

The new board wasted no time reversing moves approved by the previous board.

It unanimously appointed Commissioner Ron Jenkins as Chairman, who was re-elected in 2017; unanimously appointed freshman Commissioner Steve Hosmer as vice-chair; unanimously appointed Commissioner Rodney McCoy as Treasurer, who was elected for his first term in 2017.

Commissioner Bill Beer remains the board’s lone anti-RO-plant Commissioner. His 2017 election swung H2GO’s voting power from 3-2 in favor of the reverse osmosis plant to 3-2 against it.

Beer was excluded from the newly-restructured litigation committee Tuesday, which previously excluded pro-RO-plant Commissioners McCoy and Jenkins. Still, there are some signs of unity, with Beer voting alongside the new power structure on items the previous board installed and was heavily critiqued for.

The new litigation committee, which Beer cast the lone vote against restructuring to exclude him, will be hopefully “short-lived,” McCoy said Tuesday. Beer spoke to clarify why he voted against the restructuring, in an apparent reference to McCoy’s spring 2018 alleged leak of attorney-client confidential information that led to the committee’s formation.

“If there was no breach, if there is no threat, there is no need to have a litigation committee. You can meet in closed session with all the board members and everybody will be fine and dandy,” Beer said Tuesday.

After voting in favor of the restructuring, newly-sworn-in Commissioner Barry Laub said he was uncomfortable with Beer’s exclusion. “I’m going to work as hard as possible to make us a unit and go forward with a common objective of why we’re here,” Laub said.

H2GO’s litigation attorney Brian Edes’ resignation was unanimously approved by the utility’s new board Tuesday. Pictured in 2018, Edes (far right) reviews a preliminary injunction with Commissioners Bill Beer (center) and then-Commissioner Trudy Trombley. (Port City Daily photo/File)

Gag order canceled

Tuesday, the new board unanimously approved rescinding two December 2017 resolutions that effectively restricted the job functions of two administrative H2GO staffers: Executive Director Bob Walker and public information officer Tyler Wittkofsky.

One December 2017 resolution required Walker to submit daily activity logs to Commissioners (a Port City Daily public records request from August shows Walker was still continuing this practice).

This requirement was criticized as being retaliatory to punish Walker for his participation in the November 2017 asset transfer to Belville, which Judge Charles Henry ruled illegal in April. Belville is appealing.

“I’ve been waiting for two years to be able to do this,” Commissioner McCoy said Tuesday before introducing the motion to rescind the previous December 2017 resolutions. “In my opinion, the executive director has the full capability to perform his duties without any micromanagement from the board.”

McCoy said the public information officer, Wittkofsky, is also capable of performing his duties.

Nov. 27, 2017, outgoing H2GO Commissioners — anticipating a power shift with Beer’s third-place finish and election — voted 3-2 to transfer of all its assets to Beville to “save” the reverse osmosis plant. Commissioner Jenkins and Belville Mayor Mike Allen are the only sitting elected representatives who voted in favor of the legally-contested transfer from their respective boards. In his April order, Judge Henry concluded the officials who orchestrated the rapid and quiet transfer broke state ethics law.

After coordinating with Leland Town Manager David Hollis, public records show, Commissioner Jeff Gerken helped arrange a midnight Dec. 4, 2017 swearing-in ceremony for Beer in Leland Town Hall to speed up the power shift and attempt to undo the transfer.

At an emergency meeting that morning, then-Commissioner Gerken introduced a staff gag order that required all staff members to not discuss any H2GO matters with the media and to direct all media inquiries to himself.

This resolution passed 3-2, but was never formally rescinded. Days later, Dec. 7, 2017, Gerken introduced an additional motion, which passed 3-2, that refined the gag order to pending litigation and redirected all media inquiries to recently-acquired litigation attorney, Brian Edes.

Thereafter, several basic financial questions were addressed by Edes, costing H2GO at least four and as much as eight times as much as it would have if Wittkofsky had handled them. By February 2018, Gerken admitted the gag order was “restrictive” but did not lift it; Edes acknowledged it had First Amendment implications and attempted to make clear the utility did not intend to limit individuals from voicing their opinions.

At the time, Commissioner McCoy said the restrictions created a “hostile workplace” for H2GO employees. Tuesday, McCoy said the restrictions took away powers from Walker and Wittkofsky to perform duties in their job descriptions.

Edes out

In a letter dated Dec. 2, 2019, Edes wrote to H2GO’s general counsel, Steve Coble, to tender his resignation.

Since the lawsuit began, Edes, through his firm Crossley McIntosh Collier Hanley & Edes, has earned the lion’s share of the utility’s litigation fees, at a running total as of October 2019 of $235,185. Combined, all three parties — Leland, Belville, and H2GO — have spent nearly $2 million in legal fees to date. In September 2018, the Town of Leland hired Edes as its general counsel, which created a conflict of interest concern for some, but not all, H2GO officials.

H2GO and Leland are co-plaintiffs in the lawsuit against Belville, but that may change given the utility’s newfound political alignment with Belville.

Over the past several months, Commissioners McCoy and Jenkins, then in the minority, on multiple occasions questioned Edes for apparently not sharing public documents, including the April order and a July provisional ruling, with the full board. Both Commissioners shared frustrations with learning about the order from the press, rather than receiving it from Edes personally.

Reached Wednesday, Edes said his resignation letter contains his sentiments regarding his departure. In the letter, Edes cited his gratitude in representing H2GO through its legal victories, namely, the April district court order.

“Accordingly, to facilitate the peaceful transfer of power, I hereby offer to tender my resignation as H2GO’s litigation counsel if the new board is desirous of accepting it,” Edes wrote in his resignation letter.

After closed session, H2GO’s board voted unanimously to accept Edes’ resignation. It then unanimously voted to hire the firm Ward and Smith “to make an appearance in an appeal,” newly-elected vice-chair Hosmer said.

Read Edes’ resignation letter below:

Edes Resignation Letter by Johanna Ferebee on Scribd

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