Ashe County reverses course, says commissioner doesn't have attorney

Ashe County reverses course, says commissioner doesn't have attorney

JEFFERSON, NC (WBTV) - An attorney representing Ashe County says his law partner does not represent County Commissioner Jeff Rose, despite assertions to the contrary made by county staff last week.

In an email sent Wednesday, July 12, County Attorney John Kilby told a WBTV reporter that Rose was not being represented by Kilby's law partner Ben Hurley.

Kilby's statement that Rose is not being represented by Hurley comes less than two weeks after another county employee said she had been told by Kilby to direct a records request from WBTV to Hurley in his capacity as Rose's attorney.

"I was just notified by County Attorney John Kilby that any request for public records for Commissioner Jeff Rose needs to be forwarded to his attorney, who is Ben Hurley with Kilby and Hurley Attorneys in West Jefferson, NC," Ashe County Clerk to the Board of Commissioners Ann Clark said in a June 28 email. "I am going to forward your email to Attorney Hurley for a response."

Following Clark's email, Hurley exchanged emails with a WBTV reporter on Rose's behalf.

But this week, County Attorney Kilby said Hurley does not represent Rose.

"Commissioner Rose initially met with my partner Ben Hurley to get some advice in replying to your public records request," Kilby said in an email to WBTV.

"Although I am the designated County Attorney, my partner Mr. Hurley occasionally fills in for me.  Neither Mr. Hurley or I have billed the County for any time he spent with Commissioner Rose nor do we intend to do so. Mr. Hurley does not at this time represent Commissioner Rose in these matters," he said.

When asked why, then, Hurley corresponded with a WBTV reporter on Rose's behalf, Kilby sent the following explanation.

"At the time you were told he was representing Commissioner Rose, he was advising him," Kilby said.

Kilby did not provide an explanation as to why Hurley's role as an adviser to Rose on outstanding records issues included exchanging communication on his behalf. Nor did Kilby provide an explanation as to why he and his partner were providing legal advice free of charge.

Rose's decision to seek legal advice comes as the commissioner continues to refuse a request from WBTV to produce text messages sent and received using his personal cell phone in which he discussed county business.

Previous Story: Ashe Co sheriff paying attorney with county funds, without commissioners' approval

To date, Rose has not produced any text messages relating to county business sent or received from his personal phone. An email from Barbara McCoy, Deputy Clerk to the Board of Commissioners, to Rose sent last week said Rose has previously claimed he did not use his personal phone for county business.

"In order to comply with WBTV's public records request we need a written statement from you that states you have reviewed your personal e-mail/text referencing any County matters and any e-mails/text relating to those matters have been provided," McCoy wrote in her email to Rose.

"I think you stated verbally that there were none but according to the documents provided by Sheriff Buchanan there were some e-mails/text between you and him," the email continued.

The email refers to text messages produced by Sheriff Terry Buchanan—sent and received using his county-issued phone—in which he and Rose discuss matters related to public business. Such communication records are required to be made public under North Carolina law even if the communication was done using a private device or account.

Prior to Buchanan providing the text message exchange that showed Rose using his personal phone to conduct public business, Rose had not acknowledged any such records might exist.

In his email exchange with WBTV last week regarding Rose's continued refusal to produce public records, attorney Ben Hurley said Rose was currently out of town on vacation. It is not clear when Rose will return from vacation or if he will produce records in accordance with the law upon his return.

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