The Village of Salado has released 20 pages of documents concerning former Village administrator Kim Foutz, stemming from a Salado Village Voice Open Records request of Oct. 18.
The Village released the documents following a Dec. 14 Attorney General opinion that stated that the attorney-client privilege claimed in the request “does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client body.”
“Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers,” Assistant Attorney General Joseph Behnke in the Open Records Division of the Attorney General’s office stated in the Dec. 14 letter to Linda Sjogren. ‘The privilege applies only to communication between or among clients, client representatives, lawyers and lawyer representatives.”
The information released “consisted of communications with private individuals you have not demonstrated are privileged parties.”
Among those parties not protected by attorney-client privilege are two former Village employees: Lyndsey Barrett and a current Village employee, as well as a real estate agent, a real estate developer and a local business owner.
About 20 pages of communications were released to the Salado Village Voice request.
Salado Village Voice requested a list of complaints made against and/or about city administrator Kim Foutz; a list of the names of those interviewed by the city attorney who was authorized to conduct the investigation into Kim Foutz; the final recommendation and/or summary resulting from the investigation into Kim Foutz; Communication between the Village and its insurers regarding the employment agreement with Foutz; and invoice line items from the Village Attorney regarding the investigation into Kim Foutz.
In November, Linda Sjogren, attorney for the Village of Salado, released the invoices for September and October regarding the Kim Foutz investigation. Legal fees in connection to the city administrator totaled $6,778.50. The October invoices in connection with the city administrator totaled $4,539.00 for a total of $11,317.50.
Following the Attorney General opinion, Sjogren emailed Salado Village Voice scanned documents at 4:45 p.m. Dec. 20. Ten minutes later, Salado Village Voice received an email from Kim Foutz regarding “Foutz Statement related to Village of Salado document release.”
The documents released stem from a Sept. 21 email from Sjogren to Foutz entitled Statements. They are from Will Lowery regarding a “property owner Trail issue,” a “Variance complaint” from Hal Anderson; statements from code enforcement officer Christina Lee and an email chain between the Village and Jim Reed regarding an inquiry into fill in the Creek and the Army Corps of Engineers and a statement from former employee Brigit Bingham.
An email from Robert Young with Strategic Realty Association is also included in the document release.
Lowery’s issues outlined in a May 5 letter delivered to the Village office concerning an April 26 letter to Larry Wolfe who manages business properties on behalf of Lowery.
According to the May 5 letter, Foutz and Wolfe had a disagreement in a meeting regarding trails “Inn on the Creek intends to allow to be placed on-property as part of a public/private partnership. The morning following that initial disagreement is when your tone drastically changed and your office began summoning Larry for discussion and issuing letters to Inn on the Creek.”
The Village sent a certified letter to Wolfe. The letterhead stated the address as 602 Center Circle, but the “address to which you sent your certified letter was not my address, Larry’s address or any address ever associated with any of our businesses. This resulted in another business owner being made aware of your chastising letter and only served to further frustrate this situation.”
Lowery, in a September communication to the board of aldermen and mayor, discussed why he felt Foutz was not meeting her obligations as the Village Administrator.
“I cannot comment on why other property owners withdrew their support after the grant was awarded….” Lowery said. “My support was withdrawn for three reasons: 1. She did not communicate with me key, unalterable requirements of trail installation on my property; 2). When I voiced objection regarding some of the requirements (specifically the width of the trails and the fact that they were to be made of concrete) she told other members of the trails committee that I knew from the beginning of the project those unalterable specifics, and she made statements to paint a picture of me as the reason the project was falling apart. 3). She flip-flopped on her statements regarding what was permissible for trail access.”
Lowery said that he would require access to be limited when there were private events on the property. “She assured me blocking trail access for periods of time was not a problem,” Lowery wrote. Later, according to Lowery, she told trails committee members “that the trail could not be blocked as they were public trails. Later, when I met with her and Alderman Dankert, she changed her stance again.”
After that meeting, Lowery stated that Foutz “called my representative into her office and began accusing my manager of not following a procedure that her office had previously clarified was unnecessary. She raised her voice in front of her own staff and chastised my manager.”
An email from Hal Anderson of Mill Creek Resources to Mayor Skip Blancett on his personal email address was also released. The June 10 email said that an email from the developer’s engineer to Chrissy Lee submitted a variance request. The email was sent two weeks prior to a Planning and Zoning meeting on June 7.
At the P&Z meeting, according to Anderson’s email, “Jim Reed expressed some dismay at having received the information on this request the night of June 5… Kim replied that she was sorry, it was a last minute submission and that was as soon as she could get it to him.” The variance request failed for lack of a second. “I feel it was very poorly presented to the P&Z Board so that they didn’t really understand what was being required of us,” Anderson stated, “thus didn’t take action on the variance request.” The Board of Aldermen approved the variance requests at their June 16 meeting.
Code enforcement officer Chrissy Lee gave a statement regarding a chain of emails and phone calls concerning fill in the Campbell Branch creek in March 9 at 110 N. Main St.
Jim Reed contacted the Village via phone concerning the fill. Lee told Reed that she would look into the situation. “When I asked Kim about the fill she stated that she had been down there with a group that included someone from the Army Corp of Engineers on an unrelated matter and that they, the Army Corp of Engineers, did not have any concerns over the fill.”
Lee conveyed that via telephone to Reed, who then asked who the representative from the Army Corp of Engineers. Lee said that she was told by Foutz that there was “no name to give because the person(s) that were on site with her never actually addressed the fill.” Lee was instructed to communicate with Reed via email at that point. “She instructed me to write an email using the language ‘formal complaint.’ I felt like my communication with Mr. Reed to that point was cordial and that although he was voicing a concern, he was not making a formal complaint. I did write Mr. Reed an email telling him what Kim said, but decided not to use the words ‘formal complaint’ because I did not feel comfortable insinuating that is what he was doing.”
In that email to Reed, Lee stated that “Although they were there for a different project, they saw the fill that had taken place and did not raise any concern.”
Reed responded that he wanted the name of who was at that meeting from the Corps of Engineers because of three concerns:
There is a “lack of adherence to both The Village permitting process and the Corps floodplain responsibilities…. There are recent developments which the Village has denied encroachment on the floodplain and those decisions could be endangered and challenged if this situation is not addressed.”
“There has been no provided evidence that the fill has no impact now or in the future.” Reed stated in an email from his firstname.lastname@example.org email address to Lee that was copied to alderman Frank Coachman, Clearwater Underground Conservation district manager Dirk Aaron, County commissioner Tim Brown and Kim Foutz.
“Recent rains washed out a portion of the filled area due to a lack of sedimentation control fences or vegetation thus sending the fill material downstream,” Reed stated.
Lee asserted in her statement that after she informed Foutz of Reed’s response via email that Foutz “came into my office to read what he wrote. She then asked to see the e-mail I had sent to him. She said she had asked me to use the words ‘formal complaint’ and instructed me to reply” with an email that “she dictated to me while standing in my office:”
The email reads: “Jim Thank you for submitting an official complaint. I will have our Floodplain Manager inspect the area and will advise you of any results and further actions that may be taken.”
After Reed replied again, Lee stated that Foutz “entered my office and read it and proceeded to type him the below response from my computer and e-mail address. She did not indicate in the response that it was coming from her and did not sign the email with her name.”
That email to Reed stated “We have already indicated that the Corps was out there for a different reason… they saw the fill, and didn’t raise any concerns. There was no determination…. Calling the Corps will only raise unnecessary scrutiny, primarily to the sewer project. The first point of investigation is always the village Engineer and that is what we are doing.”
Lee then received an email from Alderman Coachman asking her to give Reed the name of the Corps of Engineers representatives.
During a phone call from Foutz to Reed held over speaker phone, Lee said that Reed said that the emails were drawn out and unnecessary. “Kim did not tell him or Alderman Coachman that she was the one who instructed me to send the emails, that she dictated the one email to me or that she actually wrote the last email,” Lee stated.
In a separate email to Coachman and Blancett, Reed stated that “This lack of communication continues to shoot The Village in the foot. I can’t tell you the number of people who are frustrated with the lack of communication from Village staff. All that was needed here was a response from staff that they are unable to provide the name and a referral to Kim.”
Former employee Lyndsey Barrett in an email to Blancett on his personal email stated that she “overheard a conversation that was on speaker phone between Kim Foutz and Jim Reed… I kept hearing Chrissy’s name being brought up and Mr. Reed continually indicated that he did not understand why Chrissy was being so difficult and unhelpful…. Chrissy was in Kim’s office the whole time, listening to the entire conversation over the speaker phone. I do recall at one point Kim apologizing to Mr. Reed and stated she was sorry if he felt like he had bad customer service from Chrissy.”
Foutz stated in a Dec. 20 email to Salado Village Voice that “The written complaints cover a two-year period and all but one were given to me in September of this year during my evaluation or after being placed on administrative leave. The complaints address city business interactions concerning code enforcement, easement dedications, variance and creation of special districts in the community In each of these cases, I evaluated the facts and provided responses that were in the best interest of the Village. Most of these issues were brought forth to the Board of Aldermen for action including the variances, easements and code enforcement.”
In another matter, former employee Brigit Ashley Bingham stated in an undated document that Foutz “has threatened my job security, talked down to me, belittled me and bullied me.”
She stated that Foutz “has been heard on occasion to say things such as ‘if I had known you were in the military and would be gone for two weeks, I would never have hired you.”
Regarding this claim, Foutz stated the following: “In regards to the employee complaint, it was not dated, and presented to me during my annual evaluation on September 8, 2016. Multiple staff members and I, including the staff committee members that interviewed and recommended hiring the complainant, were aware that the employee was in the Reserves and would continue that service after being hired, which included leave requirements. I believe the employee’s service in the Reserves was noted on the employment application and the employee notified the committee at the interview. Fully knowing this, the committee recommended hiring the employee, and I provided final approval. The complainant did not report to me, nor did I assign work to or evaluate this employee. Two other employees in the organization supervised and evaluated this employee during the employee’s time working for the Village. Staff and I were also aware of the employee’s service when the standard 6 month probation period came up; the employee was reviewed and favorably reclassified to part time permanent status. In addition, during continued service in the Reserves, the employee was upgraded to full time permanent status. Later, during the budget process, it was recommended that the position be contracted due to budget constraints and a lack of casework in the department. This action was approved by the Board of Aldermen through the annual budget process. In summary, the complainant’s military status was known to all concerned parties at the employee’s time of hire and thereafter with the Village. In addition, I personally approved multiple favorable actions regarding the employee’s tenure and status with the Village.”
In a Sept. 27 document, Robert Young of Strategic Realty Advisors, LLC reviewed an instance concerning the purchase of 587 acres (the Robertson Plantation) for development of residential homes as well as a commercial section fronting IH-35. The property is outside the city limits. “We were unable to receive the assistance from the city of Salado we needed regarding utilities and water to the site.”
Developers met with Foutz on Jan. 29 2015 to discuss the city plans to bring water and sewer services to the tract. “Mrs. Foust (sic) on the phone had been very helpful and willing to set up a meeting with us to facilitate the purchase and development of the tract.”
“Upon our arrival and commencement that changed very quickly…. After several minutes of discussions the consensus was the water solution would take a great deal of time and money to make it to the Robertson tract.
“The best solution was a MUD. Mrs. Foust (sic) vehemently objected the moment the idea was presented,” Young stated, who added that she interrupted the developers “and with a louder more aggressive tone said that ‘they would not allow a MUD in Salado.’ The conversation spiraled down from here…. (she) crossed her arms and said that she was not going to discuss a MUD for Salado as he was not going to allow that to happen.”
These are the complaints that have been released by the Village due to the Attorney General opinion.
The full documents, including the original request by Salado Village Voice, the request by Sjogren to the Attorney and the AG opinion, can be found at saladovillagevoice.com.
After the investigation, aldermen voted on Oct. 6 following an 80 minute executive on a motion from aldermen Amber Preston-Dankert: “Due to the Village Insurance Carrier’s advice and financial support, I move that we invoke the Unilateral Severance provisions in the employment contract with Village Administrator Kim Foutz and authorize the Mayor and City Attorney to take any necessary action including extending her administrative leave with pay until the effective date of the severance.”