Ashe County commissioner hires lawyer, refuses to produce text messages

Updated: Jul. 7, 2017 at 3:48 PM EDT
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JEFFERSON, NC (WBTV) - An Ashe County Commissioner has retained his own attorney in response to a records request from WBTV.

Commissioner Jeff Rose has hired attorney Ben Hurley to assist him in responding to WBTV's request. Hurley is the law partner of John Kilby, the county's attorney.

It is not clear whether Hurley will be paid with public tax dollars or if Rose will pay his own legal fees.

In an email to WBTV this week, Hurley said there was no contract or engagement letter between his firm and Rose. Such a document is customary when attorneys are retained to provide legal services and would outline, among other things, the hourly rate at which they will bill clients.

Ashe County Attorney Sam Yearick did not respond to an email sent from a WBTV reporter on Thursday asking whether Hurley was being paid with tax dollars.

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

Ann Clark, who has facilitated Ashe County's response to an ongoing records request from WBTV, said Hurley was representing Rose in an email responding to a new request from the station last week.

In that request, WBTV asked for an email sent by Rose to county staff certifying he did not have a text message discussing public business on his private cell phone. In her email, Clark said Kilby, the county's attorney, directed her to not produce the document to WBTV.

The station requested that document after it discovered Rose had been texting Ashe County Sheriff Terry Buchanan using his private phone.

The North Carolina Public Records Act treats any written communication in which public business is discussed as a public record, whether sent using a privately-owned or publicly-owned device or account.

To date, neither Rose, his attorney nor anyone from the county have produced text messages from his private cell phone in which he discussed county business. WBTV's attorneys have not received a response from Rose or his lawyer to a letter specifically asking for those records.

Rose joins Buchanan in hiring an attorney to help respond to a records request from WBTV.

Related: Sheriff investigating county employees for attempting to fulfill a public records request

Yearick has previously confirmed that Buchanan's attorney is being paid with tax dollars; an expense that has not been approved by county commissioners.

WBTV has yet to receive a response to the most recent letter sent on its behalf to Ashe County officials, sent late last week, seeking production of public records responsive to WBTV's records requests sent in April and June but have not been produced.

To date, the county has withheld text messages sent and received from the personal cell phones of Rose and Buchanan; certain text messages redacted by county commissioners without explanation; and certain emails and email attachments that were withheld with little or no explanation.

The Public Records Act requires a public agency to provide a basis under which a public records is being withheld.

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