Commissioner Don Hawbaker responds to ethics complaints and hearing

Publisher’s note: During the Aug. 6, 2018, Spalding County Board of Commissioner’s meeting, Commissioner Don Hawbaker produced a written statement he requested be placed in the public record. This is his complete and unedited response to the Ethics Review Panel hearing regarding three complaints filed against himself, and one filed against Commissioner Gwen Flowers-Taylor.

At our June 4 meeting I apologized for making harsh comments to some people on a private FB page. I asked for a correction and an apology about what I considered an untrue statement, friends of Mr. Eddie Goss flocked to his support and argued with me, and I argued back. I take responsibility for my comments and wish I had never taken the bait. Nothing I’m about to say is intended to walk-back that apology. I’m still sorry I participated in that discussion because I’m definitely an amateur who was tangling with professional, experienced FB commenters.

But answering for my comments in the context of an ethics review is a completely different matter. When three citizens swore under oath, subject to the penalties of perjury, that I had violated the Code of Ethics governing our conduct as commissioners and filed their ethics complaint, they took this to a whole different level, a quasi-legal level. So here are my observations on this whole process, and I’m not going to sugar-coat them.

As set out in the applicable Ordinance, an ethics complaint requires first a finding by this BOC that the complaint indeed states a Prima Facie violation. “Prima Facie” is a Latin, legal term meaning “on its face” or “at first look.” A hearing was held by all of you on May 24 and you all decided that the three complaints against me met that standard. You decided that the complaint brought by Mr. Washington against Commissioner Flowers-Taylor stated a prima facie complaint. I didn’t attend that meeting for reasons that aren’t important to specify here; but I certainly didn’t think any of you would look at (a) the Code of Ethics, and (b) the complaints themselves and find that a prima facie case had been stated by any of them against Commissioner Flowers-Taylor or against me. I didn’t believe that our county attorney would come to that conclusion, but apparently he did and his guidance allowed you to make those findings. Mr. Fortune, I’m very fond of you, but on May 24 my colleagues needed an attorney, this county needed an attorney, and your legal advice was way off. If that makes you angry or embarrasses you, well, I’ve been angry and embarrassed by this process. This whole process should have begun and ended that night.

You know who determined that these complaints didn’t state a prima facie case? All 5 of the review panelists. They took the time that apparently few of you in this room did to do exactly what should have been done on May 24: simply compare the basis of the complaints to the ethical considerations set out in the Code of Ethics. When they did, they had no choice but to rule 15-0 in my favor; that is, they voted 5-0 on each of the 3 complaints. If there had been 10 complaints, the votes would have been 50-0; if 100 complaints, the results would have been 500-0. That’s because contrary to the legal opinion that was rendered and reached, these citizens could easily see there was not even a prima facie case stated by any of the 3 complaints.

Apparently, a lot of people in this county who spend their life or at least much of their free time on FB also never read the actual complaints and the Code of Ethics. For the first time in 2 months, following the July 25 hearing I opened up Facebook and took a look at the comments of the howling mob on these public FB pages that apparently, and sadly, thousands of citizens use as their primary source of news and information – although it appears that only a small number, maybe 50, of these keyboard warriors are actually active. Their angry comments were really entertaining, and the level of ignorance was amazing.

I don’t think I’m the smartest guy in this county and maybe not even in this room, but I know I’m smarter than all of the people who occupy, comment on and administer those pages. Many of you who do are in this room tonight. You all need some basic education. You may not understand that freedom of speech applies to all of us. Apparently, you don’t know that no one loses his rights to free speech just because he’s an elected official. It’s called the First Amendment, freedom of speech, to the U.S. Constitution. It’s called the Speech Clause in the Georgia Constitution. These rights have been around more than two centuries. And if you don’t like the speech you’re hearing or reading on social media, the answer isn’t trying to control that speech as some of you want to do with a bogus ethics complaint or by revising the ethics code to punish content or tone of speech made by a commissioner. And that Ethics Code will never try and regulate speech because that would be a bald-faced violation of the First Amendment by a governmental entity. The correct and effective response to speech you don’t like is simply more speech.

Understand this: just because I or anyone else up here volunteered to serve and ran for elected office doesn’t mean we lost our rights to free speech under U.S. and Georgia Constitutions. I don’t know about the others, but I certainly didn’t do this for the money. I hoped I could make a positive difference and believe that for the most part, I have. Apparently so do the constituents I serve. I will always endeavor to speak respectfully and treat everyone kindly – even when they respond with sarcasm, untrue accusations, and defamatory statements. But there may be a point where I’m probably going to respond in a less friendly manner. Anyone would. Judge not lest you be judged.
About the only regulator on rights of free speech is that you can go too far, defame someone and possibly have to answer for it in a civil lawsuit. I defamed no one in the FB comments on Mr. Goss’s private page; if you think I have, well, the courthouse is across the street, file a defamation suit. You’ll have the burden of proof which will provide all of the protection I’ll need. I and my wife have been defamed on those public FB pages. In 2017 I sent pre-lawsuit letters to two people who had most egregiously done so, and to the moderator of that page who facilitated the defamation and requested that they publicly apologize. Which they did. Again, just because I’m an elected official doesn’t mean I can’t bring a successful defamation lawsuit. There are plenty of reported cases of public officials who were defamed on FB, sued and won judgments for hundreds of thousands of dollars. And I won’t hesitate to do so myself – if you’re going to behave that way. The apologies I received probably weren’t sincere and were extended just to avoid a lawsuit, but I hope the point is made: I will defend myself and assert my rights to not be defamed and called corrupt. Same for my wife. Otherwise, fire away – speak about me all you want.

Getting back to this prima facie finding: Besides the review panelists you know who else acknowledged that the complaints did not state a prima facie violation of the Code of Ethics?

The three complainants themselves: Mr. Washington, Ms. Norman and Ms. White. Each of them testified under oath his or her complaint did not fall within purview of code of ethics. While they used words like “Violated the Code of Ethics” when I asked each of them which provision of 2-12003 my FB comments violated, they all admitted that my FB comments did not violate the existing Code of Ethics. Ms. Norman even admitted she had never even read the Code of Ethics until the night before the July 25 hearing. Yet she filed her complaint in late May.

And frankly, it would have been to their benefit that back on May 24 the county attorney and the members of this BOC found no prima facie violation and ended this process then and there. Just like I responded emotionally in my FB comments that many people found objectionable and hurt their feelings, I’m willing to assume that these complaints were filed quickly based in large part on an emotional reaction. Because I know they had no basis in any governing law.

The Code requires that a sworn statement be filed to activate the review process. And each of them did file a sworn, notarized statement that I had committed an ethical violation. In general, a notarized statement under oath subjects each of them to the possibility of perjury, especially when (a) they later admit openly at the hearing that their complaint does not fall within the scope of the Code of Ethics, and (b) refuse to withdraw their complaint. It may have made them and all of the FB crowd on these public FB pages angry – they’re always angry about something – but you all could have been doing the complaining parties a big favor by finding no prima facie case and not allowing the process to have gone forward. But you didn’t and now they are, in my opinion, in legal jeopardy.

During the hearing on July 25 I asked each complainant 2 questions: did anyone, any professional, help you prepare your complaint? They all said no. I asked whether they had been assisted by a professional because when you’re signing something under oath you need to appreciate the legal risk that carries. I don’t know whether having or not having professional help made the sworn complaints more or less reckless, more or less malicious, but I think it’s significant that they probably didn’t appreciate the gravity of filing a sworn statement.

And, I asked if they wished to withdraw their complaint and all 3 said no. I did that not so much for my benefit as I did for theirs. Had they said they would withdraw it, they might have been minimizing their legal risk and exposure. Such as when I sent those pre-lawsuit letters asking those who had defamed me to apologize publicly and they did. Now all 3 of them are in legal jeopardy of having committed perjury, which they basically admit they have committed. I’m not their lawyer, it’s just my legal opinion. I do have two words of advice for Mr. Washington, Ms. Norman and Ms. White: Lawyer Up.
For those of you who seem to spend most of your free time on social media sites like FB, I feel sorry for you. It warps your view of the world and you’re less intelligent for the time spent there. I understand how you may feel that FB creates some sort of zone of immunity where you can say almost anything you want without legal consequence; it doesn’t. That if you make defamatory statements, especially about your local, elected officials, you aren’t subject to being held responsible; you can. Many of you also seem to think that a FB Court exists and that by tagging someone you have summoned them to FB Court to answer for and be judged for their perceived errors or sins. I suggest you get out in the real world more often and spend less time on FB. It’s a tool of the Devil.

I also suggest that you attribute just a small amount of good faith to we who have been elected to serve. I assume the best and good-faith about citizens who contact me. Instead of starting out with some assumption of the worst about our motives, actions and comments, ask some questions of people who have the knowledge, ability and authority to answer your questions.

Don’t traffic in FB rumor and innuendo. Someone told me that in a discussion about T-SPLOST a commenter said that only 30% of funds raised by sales taxes must be used for the designated project and the other 70% spent as the commissioners please. That’s absolutely not true. Those funds must be used for the designated projects or people go to jail. SPLOST law isn’t terribly complicated but there are rules and regulations, and commissioners have only a small amount of discretion where to direct left-over money. It certainly doesn’t go to our pet projects or to things that the voters haven’t already approved. Please, before you promulgate rumors, ask someone who can provide accurate information. While it may be fun for some of you to shoot spitballs at your elected officials from the peanut gallery and to come down here and yell at us for your and your friends’ entertainment, why not consider running for office yourself? If you have all the answers and can fix everything that’s wrong with this county, if you think you’re smarter than anyone sitting up here, you should be running for office rather than sitting behind a computer and pounding away on a keyboard. As Jack Nicholson’s character, Col. Jessup said in A Few Good Men, pick up a rifle and stand the post.

Lastly for those who wanted to see me punished because I defended myself, know that the process itself was a punishment. It took lots of time away from my day job and my family, it reduced my income. It’s also likely that my professional errors and omissions insurance premiums will be going up; in each renewal application I have to disclose whether ethics complaints of any kind have been asserted against me and of course I disclosed these complaints.

I’ve sent certified copies of the 15-0 verdicts of the review panel to my insurer but haven’t yet heard whether my insurance rates will be going up as a result. So you damaged me and got some amount of revenge regardless of these verdicts.

Congratulations. But if my rates do go up, I’ll be sending the county or even Mr. Washington, Ms. Norman and Ms. Kent a bill for reimbursement.

This process never should have occurred under the Code of Ethics. There simply was no prima facie review from the beginning. Thank you.

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Comments

  1. Wow, his statement was like reading a novel. That was a perfect example of a Filibuster. It made my head hurt!

  2. steven stroup says:

    I assume that the ethics complaints are from a Facebook fight. Not being a part of the war I don’t know what triggered the complaints except someone felt that they were injured. First he should know that as a elected official he can not please everyone and will always be the target of frustrated citizens. After reading this statement I can understand how he could easily offend someone, after all he was trying to belittle those who make comments by calling names like “Keyboard Jockeys.” along with several others. He did confirm that Facebook comments do have a effect. Now if he can only learn to take the good suggestions and implement them and brush off the insults he might become better at his job.

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