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Public Hearing Regarding Charles Coney’s Termination Held

From:  Staff Reports

In February of 2019, Americus City Council voted to hire Charles Coney as the city manager. The vote was split 4-2, with Kelvin Pless, Juanita Wilson, Daryl Dowdell and Nelson Brown voting in favor of employing Coney. Charles Christmas and Lou Chase voted in the negative. Since the vote was not tied, Mayor Blount did not go on record. Coney came to Americus having had experience in other cities, some of which he was in litigation with over their decision to terminate him. The council was aware of this history.

In February of 2020, after hiring counsel from Atlanta to serve as an independent investigator into several allegations against Coney, Americus City Council voted to terminate him with cause. Darryl Dowdell abstained from the vote secondary to having family member(s) involved in the complaints. Nelson Brown opposed the termination. Charles Christmas, Kelvin Pless, Lou Chase and Juniata Wilson voted in favor of the termination.

As is policy, Coney has the right to request a hearing post his termination. He and his lawyer, Maurice King did so. Because of the pandemic, the hearing was postponed several times, however it was completed Wednesday, June 25, 2020 at Rees Park with White House guidelines regarding COVID-19 enforced. The city was represented by Atlanta attorneys, John Bennett and Timothy Boughy. Coney and his attorney, King were present. City Attorney, Jimmy Skipper served as the mediator to the proceeding and all of council was present. Council would once again consider their decision to terminate Coney, with or without cause after each side had an opportunity to be heard.

Bennett, who held the burden of proof, opened the hearing with his statements. “This should be quick and relatively straight forward.” Three and half hours later, it would prove to be anything but quick and relatively straight forward. Bennett continued his opening with informing the council that Coney serves at the pleasure of the council, meaning they may terminate him at any time, despite the fact he had a contract. Bennett went on to explain the difference between being terminated with and without cause. Being terminated with cause would demand the city would have to prove that Coney had violated city policy and procedures or standards or personnel policy. Being terminated without cause would mean the city could find no wrongdoing on the behalf of Coney. Additionally, being terminated without cause would allow for Coney to receive severance in some manner, whereas being terminated with cause would not. Bennett’s goal was to prove the city was correct in terminating Coney with cause as he had violated personnel policy, had practiced willful misconduct and participated in action which reflects poorly on the city.

During King’s open statement he objected to the procedural functionality of the hearing. King reports, “We take the position that Mr. Coney is entitled to due process.” King then went on to remark on past cases he has represented black officials. “I have fought in trenches of South Georgia to help black folks get into positions with hope they would help other black people.” King went on to remark he hopes others will “understand what it feels like to have the foot of oppression on your neck.” King brought up the city charter on several occasions and alluded to the idea the hearing was not in compliance with it. He went on further to say the council had been punitive in its actions by not “having the decency to pay out his contract. If black members (of council) were treated in that manner, you would feel like you had been treated unfairly.” King requested Coney be “reinstated with all rights, benefits and salary or pay out the remaining of his contract. You fired the first black city manager in black history month. You probably participated in marches and protests but you don’t use the power you have to make it better for black people and you wonder when black folks are treated in such a (inaudible) manner for a police officer to keep a knee on a black man’s neck. The reason you put white people in position is that you hope based on life experience they would have the empathy to change things for the black folks. Even the council is majority black and represented by 2 white attorneys. In other words, the more things change the more things stay the same.” King further added, “So you have a black majority, but you still don’t control (inaudible). As long as things remain the same, black folks will always be regarded as second-class citizens in the black plantation belt of South Georgia.” King reiterated his remarks on white attorneys and then reported that Coney didn’t violate any policy. As he often would throughout the hearing, he addressed the black members of council specifically, “What pains me in standing before you –tell me what is different between how you treated Mr. Coney in 2020 than how you treated a black man in the 1950-60’s? King pontificated further on incidents such as those experienced by George Floyd and Ahmaud Arbery and likened them to the experience of Mr. Coney. With King’s opening remarks completed, the witnesses were called by the city.

Dee Jones, who has served as Human Resources (HR) professional for over 20 years, and currently serves Americus as the HR Director was the first one called to testify. Jones reported on several points of interest to include HR policy and procedure for Americus employees. As an exhibit on behalf of the city, an acknowledgment of receipt and understanding of city policy and procedure was produced with Mr. Coney’s signature on it. Additionally, the city entered into the exhibits an attendance form with Coney’s signature on it indicating that Coney had attended a 2.5 hour training on harassment.

Jones was able to answer several questions on the complaints made against Mr. Coney, including one in which he stood in front of a female subordinate and asked where he could get his zipper repaired. Jones states that as it was told to her, the complainant had to intentionally keep her eyes averted from Coney’s zipper as she was at eye level with it. The complainant spoke with Jones of this incident and it was documented. As is policy, the city holds a “progressive disciplinary policy” meaning the employee is given a chance for redemption should it be appropriate.  As part of the HR intervention on this issue, Jones established that the complainant desired to have her boundaries respected. However, the complainant was not comfortable having a conversation with Coney over this fact, so Jones relayed this information to Coney herself. When asked if Jones was aware of complaints regarding false statements, she answered yes. Was she aware of sexist remarks, she answered yes. Was she aware of demeaning comments regarding weight, she answered yes.

Later, upon cross-examination and quite unexpectedly, King determined that there was cause for concern over Mr. Coney’s ability to respect boundaries as there had been ongoing issues with his ability to do so. King also questioned Jones on the harassment training.  Jones reported Coney had signed the attendance sheet indicating he had attended the training; however, she was not present for the training and unable to confirm that for herself. King asked several questions of her regarding the possibility that he signed his name then left the training to carry on his daily business. Jones responded that she hoped he would not do such a thing.

King brought up the “progressive disciplinary policy” to Jones, asking if he had received any additional disciplinary actions. At this point, Ms. Jones brought up a Performance Improvement Plan (PIP). However, when questioned further, Jones admitted the PIP was not considered a disciplinary action. King further questioned her on if Coney was given an opportunity to respond to the PIP. Jones reports that she has knowledge of Mr. Coney going to each member of council to address the issues. Pressed further about if Coney was given the opportunity to respond via a written statement, Ms. Jones was unable to answer off the top of her head. King questioned Mr. Coney’s right in being able to respond in writing to the PIP. However, as a numbered exhibit, the city was able to produce a document bearing Coney’s signature, dated 1/16/2020 indicating that Coney had “reviewed and accepted” the information in the PIP.

Mr. King asked several questions about the complainant. He made it clear that Mr. Coney had thrown her a surprise party.  Mr. Coney made it a point to ask for referrals from black owned companies/establishments. His asking the complainant where to get his zipper fixed was along these lines. He also asked Ms. Jones about a referral on where to get a rental car. At some point, Mr. King informs Ms. Jones the complainant took Mr. Coney to pick up the rental car. At another point Mr. Coney threw a Christmas party for some staff. Mr. King points out to Ms. Jones that if he were going to sexually harass the complainant those occasions would have provided a better opportunity to do so.

Ms. Jones was put in a position to have to ask Mr. King to repeat several questions as the question would be unclear. King would hand Jones stacks of paper, inches deep, not entered into evidence or having earned an exhibit number and asked her to find numerous sentences and/or paragraphs to read at the hearing. Much time was dedicated to Jones seeking out this information. At times she was able to find what King was referencing, at other times she was not. In one case, King had Jones seek out a particular statement he knew beforehand was not in the stack of papers. In the name of expediency, Mr. Skipper asked King to number the exhibits and find the portions he wanted the witness to speak on prior to handing it over to her. This caused some excitement at Mr. Coney’s table as Mr. Coney insisted that Mr. Skipper identify and number the exhibits so that the city was not able to come back to him and say they did it wrong. Mr. Skipper helped as much as he could and as was appropriate but was unable to fulfill this request. King objected several times during the hearing, primarily stating he was not able to subpoena witnesses or see records. The city’s counsel reported that an open records request would allow for the documents to be produced. As for Coney’s ability to subpoena witnesses there seems to be some lingering confusion on why King was not prepared for such a task. In addition to these objections Mr. King verbalized several concerns, one of which was Mr. Skipper being mediator over the event and having a conflict of interest as he also serves as the city’s attorney. Mr. Skipper insured all of King’s objections would be entered into the record. The city did have a re-direct with Ms. Jones. The last question was regarding the current city manager. Ms. Jones reported that Deirdre Powell was serving as the interim city manager at present. When asked her gender, Jones responded Powell is a woman. When asked her race, Ms. Jones responded that Powell is black.  With Ms. Jones’ testimony complete, the city called it’s second witness, Mr. Charles Coney.

This caused a tremendous stir at the Coney table and Mr. King appeared to be unprepared for such a request. He demanded the hearing go into recess and Skipper called for a 5-minute break. After the hearing was called back to order, Mr. King stated that he was not allowed to call any witnesses, so he was not allowing Mr. Coney to testify. Mr. Bennett was perplexed with such a response. He addressed council on this. He insisted that Mr. Coney had every opportunity and right to have witnesses. He also voiced confusion as to why Coney would not testify as part of a name clearing hearing. Mr. Bennett expressed to the council that he “advises and advocates that adverse inference be drawn from his refusal.” With the refusal established, the city called a third witness.

Beverly Butcher has been employed in a leadership capacity with the city for over 20 years. The city asked about a leadership meeting in which a video on “solution focused thinking” was shown. She remembered the video well. The pertinent parts of the video were played. In it was depicted an overweight woman who was having trouble deciding if she wanted to join a gym because losing weight and/or being in presence of men at the gym would arouse jealousy in her husband or cause some sort of marital dissatisfaction. Ms. Butcher reports she found the video to be very off putting and offensive. She did not like the portrayal of the woman in the video, she was uncomfortable with the weight inferences and did not think speaking on marital satisfaction was appropriate for the workplace. When asked if she received anything worthy out of the video, she reported she found it so off putting she couldn’t focus on it. Butcher also said many of leadership was put off by it as well as was evidenced by the fact they discussed it after the meeting. The city counsel also submitted that the independent investigator labeled the video as sexist.

Upon cross examination, Mr. King asked if Ms. Butcher was aware of policy and procedure, to which she responded yes. He asked her if Mr. Coney had the right to show videos at leadership meetings. She indicated yes. However, in addition, Butcher offered her opinion that Mr. Coney should have “thought of us as employees.” She indicated again it was a rather thoughtless choice and she felt the leadership team held the same assessment. Mr. King asked if Butcher had filed a written grievance. She responded she had not. He asked her if any other of the leadership team filed a grievance. Ms. Butcher could not answer that question as she does not work in HR. With Ms. Butcher completing her testimony, the city rested its case.

Jimmy Skipper told King he could present his case, to which Mr. King responded, “We don’t have no witnesses.” King then went on to read from the charter on such hearings in which one point was made clear. The witnesses were to offer sworn testimony. The witnesses had not taken an oath and Mr. Skipper took this under advisement. The city counsel pointed out the witnesses were still present, and they could be sworn in. Mr. Skipper then suggested that in addition to the traditional swearing they also needed to testify that their testimony as given was true and correct. The hearing reporter swore the witnesses in, and the city counsel asked both if the testimony they gave was true and correct, which both indicated as such. This caused another outburst at Mr. Coney’s table as Mr. King approached and called out the black council members and asked them if they had ever witnessed such a thing. He then again objected, to which Mr. Skipper indicated would be added to the record. Mr. King again made a point to report he made several requests of council and city professionals for information and did not receive it.  Mr. King then began his closing arguments.

Once again, Mr. King only addressed the black members of council. “I suspect before we started you all have made up your mind you would rule against Mr. Coney.” After pontificating upon what Ms. Wilson might have done as a principal at a tribunal, he continued about having the courage of a conviction to do the right thing. He pointed out events in the relationship between Coney and the complainant the council might not have known, like her riding with him to pick up a rental car. He then spoke about Coney directly. “Mr. Coney is decent. Mr. Coney doesn’t have the experience I have in South Georgia, where you fight white folks to help black folks–to put black folks in position. And then after you put the black folks in, you got to fight. You got to fight until they get slapped in the face, and when they get slapped in the face, they say ‘King come to help me.’ King can’t help them. Y’all have to know the difference between right and wrong.” Y’all know Mr. Coney not trying to sexually harass Ms. Johnson. Y’all know he had power as city manager to show a video. What so bothers me as a black attorney in South Georgia is when you get black folks in position and they do not have courage to correct a wrong.” King commented that he was aware some of council wished it had gone differently with Mr. Coney. “But you have the opportunity to correct it. He moved over here, and then to keep from paying him out his contract, you come up with an investigation, Dowdell, where they say that whatever happened. The question is are you going to take a stand and correct it or are you going to allow the white folks who have been trying to undermine Mr. Coney ever since he been here. But Dowdell, Wilson, Brown and Pless and if you allow them to carry the day on this injustice, we– I, Mr. Coney–we ain’t blaming the white folks because we know how white folks are.” Then he proceeded to tell a story about a wagon and a hill to the black council members, which ended with, “the way you stop a white cop from putting his knee on a black man’s neck for 8 minutes and 46 seconds is you start to show the white folk the power. Especially when its in the right. You start to show folks black lives matter. Y’all want Mr. Coney to be your city manager or pay out his contract. Don’t go to channel 10 and put something in the media you know is not true. And then other city managers call and ask me what he did that was that bad. I don’t think Coney has gone out and said anything about you. You going to get these trumped up charges because you don’t want to pay out his contract. That’s not fair. And some of you, (inaudible) and today its him, Dowdell, tomorrow it might be you.” King then asked council if he had offended them to hold it against him. “I will carry that burden for Mr. Coney.” With that, King closed his case.

Bennett then made his closing arguments. He told of an adage. “If the law is in your favor, use the law. If facts are in your favor, go with the facts. If facts aren’t in your favor, pound on the table. That’s what Mr. King has done today. He’s basically said he shouldn’t be fired because he’s a black man. He’s accused this body—majority black—same body that hired him in first place—same body that hired a black interim—that fired a white man in the first place. He (Coney) sat here today and refused to testify.” Mr. Bennett then reported that he has done many of these hearings over the years and not once facing a termination did someone refuse to testify. He further added, “If he had a defense it would be great to hear from him, but he was afraid to because he knew he didn’t. His lawyer sat here and alleged he was denied procedural process, set forth (in the city charter). Suggested it with no proof. (The) city manager (said he) didn’t have a notice of this resolution this body issued on 2/26/2020 within 5 days, its all in the record. His lawyer suggested Mr. Coney never had opportunity to object to PIP—and here it is—he signed it 1/16, it says ‘the Performance Improvement Plan has reviewed and signed by Charles Coney.’ He lied to an independent investigator, who you hired–and is apparently a racist–by claiming to have never attended a harassment training or was not aware of harassment policy. Here’s the new hire orientation he signed. He signed acknowledgement of receipt and understanding of policy and here is the attendance at the training. Giving false information to Ms. Woodward (investigator), an advisor of this body, is willful misconduct.” Mr. Bennett said, “It looks poorly on the city. It meets the basis for good cause termination. You saw the video he played….. According to the report Mr. Coney looked at and checked on it before he chose intentionally to play that. The independent investigator referred to that video as sexist. Mr. King claimed falsly that the independent investigator said there were no sexual harassment violations. That’s wrong. If you read her report, she said she didn’t find Mr. Coney’s actions rose to level of actionable sexual harassment. That means his actions wouldn’t give rise for a witness to sue the city for sexual harassment. That’s very different thing from a policy violation. When you showed a sexist video, you violated the city’s personnel policies.”

At this point in Mr. Bennett’s closing, King abruptly stood up and made a statement about policy. Then followed that up with an admonishment that “we will not be intimidated—him or me.” Mr. Bennett continued, unfazed. “When you go up to a female employee and ask her where you can get a zipper on your crotch fixed, you act inappropriately, in violation of personnel policy. I didn’t hear 1 legal argument today that violation of personnel policy–that if proven–wasn’t grounds for with cause termination. You all know what happened here today. There was no racism directed at Mr. Coney. This is an easy decision.”

Mayor Blount opened the floor for public comment at which time 2 residents spoke in favor of Mr. Coney. The council then entered executive session for personnel reasons for about 30 minutes. After executive session, Mayor Blount verified with Daryl Dowdell that he would be abstaining from voting. He then entertained any motions from the floor. Juanita Wilson moved that “We uphold our decision to terminate Mr. Coney with cause.” Kelvin Pless seconded the motion. There was no discussion and a vote was held. Charles Christmas, Kelvin Pless, Lou Chase and Juanita Wilson voted in favor. Nelson Brown voted in opposition. The meeting was adjourned a little after 9pm.