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Hehn requested that Ward write him a personal check for $1,500 for reimbursement. Highlands Mayor Patrick Taylor said he was shocked Hehn would make that request, stating, “This is not acceptable. This is not the way we do things around here.”
For the past several months, Highlands Town Commissioner Marc Hehn has requested the redline version of the town’s contract with Hotwire, stating he was worried the Highlands town staff was hiding something.
A redlined document is a contract that is passed between two parties in negotiations, in this case, the attorneys negotiating the Hotwire contract.
A couple of months ago, the Town signed a contract with Hotwire LLC to become the network administrator of its fiber optic network.
During the Feb. 17 Highlands Board of Commissioners meeting, Hehn requested reimbursement for legal fees. Hehn said that after several requests to Highlands Town Manager Josh Ward for the documents, he had to take legal actions to threaten Ward into giving him the documents.
Hehn requested that Ward write him a personal check for $1,500 for reimbursement. Highlands Mayor Patrick Taylor said he was shocked Hehn would make that request, stating, “This is not acceptable. This is not the way we do things around here.”
Document requests
Hehn said he had to hire a lawyer on three different occasions to write letters requesting public documents from Ward.
“This process has taken months every time,” Hehn said. “I always started with a polite request. Then followed up with my own letter. Then hired a lawyer to write a demand letter.”
On Oct. 23, 2020, Hehn spoke with Jonathan Buchan, a Charlotte lawyer, who handles a broad range of business litigation, with an emphasis on media, Internet and intellectual property issues.
During the October phone call, Buchan and Hehn had a telephone conference to talk about the public records dispute and assistance with a letter to Ward. Buchan charged $375 for the phone call.
In July 2021, Hehn had another call with Buchan, to talk about public records access, review Hehn’s draft letter to the Town of Highlands, review the statute, revise the letter and send the new draft to Hehn.
A day later in July, Buchan finalized the letter and sent it to Ward and town attorney Jay Coward. Hehn was charged $787.
In August 2021, Hehn had another call with Buchan to talk about an additional public records request, and a brief overview of a correspondence with town finance director Rebecca Shuler. On the next day, Buchan drafted a letter to be sent to Ward for another records request. Hehn was charged $337.50.
Town Board of Commissioners meet
In the Jan. 20, meeting of the Town Board of Commissioners, Hehn said he had to hire an attorney three times to draft a demand letter, threatening to sue Ward if he would not provide documents as the custodian of records for the Town of Highlands.
“I never would have pursued this project, but I found some things that are a benefit to the town. I have a concern that I would like to discuss with the town in March for the benefit of the town and town board, but I would like to read the redline version of the [Hotwire] contract.”
Taylor said he has never seen a copy of the redline document.
“They were exchanged between the attorneys,” Taylor said. “I expect no other town employees have seen the redline document either.”
Ward said he did not have a version of the redline copy. Town attorney Jay Coward also said he did not have a copy.
Coward said he spoke with Frayda Bluestein, a David M. Lawrence Distinguished Professor of Public Law and Government in the School of Government at the University of North Carolina at Chapel Hill. In that conversation, Coward said that Bluestein told him that document was not a public document.
“She said that these drafts need to be thrown away and not kept as public record,” Coward said. “I threw my copy away and I know that this specific School of Government professor believes that we need to get rid of these copies because they are not public documents.”
On Jan. 21, Hehn sent an email to Bluestein asking if the document is in fact a public record or not.
“Last night the Highlands Town Board discussed and denied the attached request,” Hehn wrote in the email. “Our Town Attorney is Jay Coward and he said he spoke to you and the information I requested is not public. Did Jay tell you that I am a Town Commissioner and not the Public. The Town Attorney and the Staff say they have all now deleted the document that I requested. The Town Attorney worked with two communications attorneys to help him represent the Town, one in Washington and one in Raleigh. Now, the question I have for you is do I have a right as a Town Commissioner to see the redline version of the Hotwire Contact? It would seem one of the attorneys should have this. And, did attorney Coward mention the redline version was emailed to our Town Manager and Staff?
“I am worried that the Town Staff is hiding something, particularly since after you agreed that I had a right to read the Town files on the broadband project, I discovered the new contract with Hotwire is paying $7.38M more in lease payments than the March 2020 contract with Wide Open Networks that the Town wanted me to know very little about.”
Bluestein responded with the following email:
“Hi Marc: I’m afraid I don’t know enough about this document to be able to give a detailed answer, but here are my thoughts. If the board has given staff the authority to negotiate to the contract, an individual board member would have to ask the board for authority to review it. With respect the document being deleted the red-lined version, under the records retention rules, if there is a newer version that is significantly different, the agency has the right to delete the draft.”
IT director Matt Schuler stated in the Jan. 20 meeting, as well, that they were trained to delete the red lined version of contracts.
“We were taught in our public records training at our Chief Information Officer class to delete all of those drafts once their usefulness was gone,” Shuler said. “Also, as soon as there is a unanimous vote, to delete all the others, for that purpose. We were told specifically to delete those things on each contract, so that there would no confusion on that contract once it was voted on.”
According to Hehn, he has found other mistakes in the documents of the Hotwire contract.
“I found other mistakes and they didn’t want me to read the documents, but I found other mistakes in the project,” Hehn said.
Taylor responded to Hehn by saying that he doesn’t agree that his staff and board have missed things in this process.
“I know that you say that we’ve missed things in this whole process, and you have also said at times that we aren’t really straight forward with you. I don’t agree with that,” Taylor said. “It has been a long hard process of seven years, but we have a contract with Hotwire that will operate that fiber optic network and it will benefit financially the town in the long term of that lease.”
Reimbursement for legal fees
On Jan. 28, Hehn hand delivered a letter to Ward, asking for a personal check to reimburse his legal fees.
“On three occasions, I have requested public documents that you refused to provide until I had a lawyer present a demand letter,” Hehn said in his letter. “Enclosed please find invoices totaling $1,500. Please forward your personal check to reimburse me for these expenses. I would like to resolve this matter without embarrassment to the Town or any employee. My hope is that I will not be forced to incur such expenses going forward.
“If you choose not to reimburse me, I request you place this on our February Agenda.”
At the February 17 meeting of the board of commissioners, Hehn said he still had not received requested documents and made a motion to move agenda item 15, which was the request for reimbursement of attorney fees, into an executive session, stating that it was a personnel matter, and he didn’t want to embarrass anyone.
Coward said he didn’t think it met the requirements for a closed session.
“It’s not personnel, it’s not to discuss a contract and it’s not attorney client privilege,” Coward said.
Once the board made it down to Agenda item 15, Hehn said that the board is supposed to look forward and not back.
“There is a long history of me asking for documents,” Hehn said. “I ask politely, I write a letter, I hire a lawyer and then the lawyer threatens to sue Josh personally. This has got to stop. I have found some problems and I have predicted problems that were going to happen. I can’t be prepared, if I can’t get the documents that everyone else has seen, I can’t do my job. I’m just asking that Josh comply with the N.C. Open Records Law. There has to be consequences if you aren’t going to do something you’re supposed to do.”
Taylor said that what bothers him is the idea that Hehn would want a personal transaction between Ward and him.
“What bothers me, Commissioner Hehn, is the idea that our town manager, who is a fine person, who has a family with young children, who works within the confines of what we are doing at the town, the idea that he would be sued personally over something like this is unacceptable to me,” Taylor said. “The other thing that bothers me, very much, is that you would want a personal, financial transaction between you and him. We are going down a slippery slope when we start allowing that kind of business here in Highlands. We have never done it and I’m not about to condone that type of behavior now as the mayor. When I first heard this, I thought you were asking the board to reimburse you, that is not the case. You wanted him to personally do it. I was absolutely shocked. That is why I wanted to put this out to the public tonight, because this is not acceptable. That is not the way that we operate here. If Josh had given you that money, it would be tantamount to him thinking that he has done something wrong. He has done nothing wrong. He may not work on your schedule, but our people have good faith. You have asked them for document after document and they have jobs to do. I’m just going to tell you right now, we don’t operate this way and I’m sorry we have to have this confrontation, but this is my feeling as the mayor. We don’t exchange personal checks.”
Hehn responded by saying that the board did not give him ample time to make a decision on his vote regarding the contract with Wide Open Networks.
“I got up early that morning and was expected to make a decision that day,” Hehn said. “Do you remember what they offered as a lease payment? $2,820,017.80. I advocated that we should take proposals. I did not feel comfortable voting for that contract, not being prepared. By the good graciousness of God, Wide Open Networks wrote us, and they said that they were not aware there was another provider, and they were not going to be able to proceed. Boy, that was our lucky day. Do you remember what Hotwire said they were going to pay? $10.2 million. Do you know how much more we are getting by taking proposals?”
Taylor interjected, stating Hehn was distorting numbers.
“Let me remind you, that Wide Open Networks contract was a 10-year contract,” Taylor said. “Don’t distort those figures. Yes, it was less, but it was a different model. You are distorting the numbers.”
Hehn said he requested documents, but it took from March to November for him to receive them. Taylor said the staff and board were concerned that if they started sharing documents with Hehn it would be a breach of a nondisclosure agreement.
“We have nondisclosure agreements that I signed on behalf of the board,” Taylor said. “We were very concerned that if we started sharing that with you, it would be a breach of that agreement. To be quite frank, since we had a breach of confidentiality between a lawyer and Hotwire negotiations, and I think you know who breached it, I was justified in having those concerns.”
Ward defends staff
Ward spoke up in the Feb. 17 meeting stating that Hehn comes to the staff frequently for documents.
“No other board member does this,” Ward said. “He requests documents constantly from us. We try to the best of our ability as staff to get him what he needs, and it is everything. Now, at the last board meeting, the board agreed to make him prints of everything. Well, he came in like five times. I want this printed, I want these minutes printed, five times in one week. We got that to him.”
Ward said this “fiber issue” started with Wide Open Networks.
“There was an issue with an agreement that we signed with Wide Open, well we had to go to Wide Open and say, ‘Here’s the deal, we’ve given these documents out to someone else.’ Wide Open came back and said they did not want their financials given out. That had to be redacted. Finally, we got a document together, including Jay. Marc signed a nondisclosure and met in the mayor’s office. The mayor let him see it and he reviewed it.”
After seeing the Wide Open Networks document, Ward said Hehn started requesting other documents.
“COVID had just started, and he didn’t want to come into the building,” Ward said. “We took the file that Matt had and went outside. Commissioner Hehn wanted to review it, he goes through the whole file and 45 minutes later, I came outside again asking if everything was fine, he said it was and left. A while later, he asked to see the document again. He sat down with Matt for an hour and a half. He questioned Matt on the same file. Matt asked him if he wanted copies. He said no. He left. Then, we get another letter, ‘I want all of this stuff from the fiber construction contract.’ A lot of the stuff we don’t have. He wanted to look at financials, so we turned it over to Rebecca. She had to go through all of the files from the time this thing started. She got it all out and had a meeting with Marc. He came in, reviewed everything and she had copies for him. He said he didn’t want them. Few weeks later, we get another request. A month or so later, we get another request. I want to see these documents, some different stuff. Well, Rebecca had to go through and pull all of it out and it takes a while. We are trying to do our day-to-day job and accomplish that job while Mr. Hehn makes request after request.”
“Rebecca got everything together and had another meeting with him,” Ward continued. “She asked if he wanted copies, he said no. Then, I get a letter from an attorney asking for these documents that he has already seen three different times. Rebecca and Matt put together everything that they have sent him electronically, including a thumb drive because some of the documents were so large. For him to sit here and say that the staff has sat here on their hind end, and ignored everything that he has said, is wrong. The thing about it is, I don’t know what you [Hehn] are looking for and I work for this town, and I work for this whole board. I try to do it to the best of my ability. If you’ve got a question and you want to question the decision this board has made, why don’t you question them about the decision they made? Ask them about the documents that they approved, and you approved some of it. Why do you always come through us?”
Another request
Since Hehn received the email from Bluestein stating that he should have been able to see the redlined version of the Hotwire contract, Hehn made a motion before the board to see the document, which Ward, Coward and Schuler previously stated no longer exists.
“All I’m trying to do is get prepared for our March meeting because I see another problem on the horizon,” Hehn said.
There was a motion on the floor, but there was no second. Taylor then asked if the board could vote without a second, which Town Clerk Gibby Shaheen said the board could vote without a second.
Taylor then called a vote for all of those in favor of telling Ward to find the documents to be provided to Hehn. Only Hehn raised his hand.
- By Christopher Lugo