Second criminal case against Brown to proceed; Barring appeal, former Cobb EMC chief will go to trial on 34 charges
by Kim Isaza
newseditor@mdjonline.com
January 05, 2012 12:04 PM | 9784 views | 24 24 comments | 55 55 recommendations | email to a friend | print
Former Cobb EMC head Dwight Brown sits in court in 2011. Superior Court Judge Robert E. Flournoy III has upheld the second criminal indictment charging Brown with theft, racketeering and witness intimidation, among other charges. Barring an appeal, the case will now go to trial, though no date has been set.<br>Staff/file
Former Cobb EMC head Dwight Brown sits in court in 2011. Superior Court Judge Robert E. Flournoy III has upheld the second criminal indictment charging Brown with theft, racketeering and witness intimidation, among other charges. Barring an appeal, the case will now go to trial, though no date has been set.
Staff/file
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MARIETTA — Superior Court Judge Robert E. Flournoy III has upheld the second criminal indictment charging former Cobb EMC head Dwight Brown with theft, racketeering and witness intimidation, among other charges. Barring an appeal, the case will now go to trial, though no date has been set.

Last spring, Flournoy dismissed the original indictment charging Brown with 31 criminal counts because the indictment was not delivered in open court, as is required. The state’s appeal of that ruling is pending with the state Court of Appeals.

In a ruling filed Thursday, Flournoy rejected three defense motions aimed at dismissing the 34 charges in the second indictment. Brown’s lawyers, led by former Gov. Roy Barnes, had argued that the charges should be thrown out because four of the grand jurors were Cobb EMC members.

But Flournoy wrote that, “Membership in an EMC is frequently no more voluntary than status as a tax payer within a city or county” and noted that the General Assembly has provided that EMC members may serve as trial jurors in a case involving their EMC. Thus, he concludes they may also serve as grand jurors.

The defense also argued that the new charges could not proceed while the state appealed Flournoy’s dismissal of the first indictment against Brown.

Flournoy called that a “novel jurisdictional argument,” which he also rejected.

Finally, the judge also rejected Brown’s efforts to get four additional charges, accusing him of witness intimidation for filing suit against people who may have been witnesses for the prosecution, dismissed. The four charges were new in the second indictment, which was returned in July.

“This court finds that a clearly frivolous civil lawsuit against witnesses in a criminal investigation may give rise to criminal liability,” Flournoy wrote. “At this stage, this Court cannot say with certainty that the State will be unable to prove beyond a reasonable doubt that Defendant was involved in the filing or prosecution of the subject lawsuit, that the lawsuit was clearly frivolous, or that Defendant committed offenses charged in Counts 32-35 of the indictment.”

Barnes said he was disappointed in Flournoy’s decision, “but we have confidence in the system and fairness of the Court.” He has been arguing an unrelated, civil case before Flournoy for several weeks and has not decided whether to appeal this ruling, he said.

The District Attorney’s Office had no comment on the ruling. The prosecution is being led by Assistant District Attorney John Butters.

Cobb EMC leaders also declined to comment on Flournoy’s ruling.

Cobb EMC is continuing to pay for Brown’s criminal defense, though it’s unclear exactly how much that has cost to date. Brown retired as the electric cooperative’s chief executive officer last Feb. 28, though the company’s board then kept him on as a consultant at nearly $60,000 per month until another Cobb judge put a stop to that over the summer.

King & Spalding, a blue-chip Atlanta law firm, has earned $7.4 million in fees representing the EMC, said EMC spokesman Sam Kelly. Much of that has been for work relating to a derivative lawsuit brought against the company by members in 2007.

The firm’s lawyers also advised the company last February in filing a breach-of-contract suit against those 2007 plaintiffs, and others. The February-filed suit was dropped a short time later, but it is the basis for the four additional criminal charges brought against Brown in the second indictment.

Flournoy was appointed to the bench in 2000 by Barnes when he was governor.
Comments
(24)
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jeff w
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January 15, 2012
From the article: “This court finds that a clearly frivolous civil lawsuit against witnesses in a criminal investigation may give rise to criminal liability,”

So if the attorneys (King & Spaulding) aided Brown in committing a possible criminal act, shouldn't they also face charges???
NotSoPC
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January 06, 2012
Is Dwight Brown so awfully different from the Jimmy Hoffa types that have hijacked the unions to their own benefit?

I think not.

I mean he even looks like a union boss!!
MAY-RETTA SURVIVOR
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January 07, 2012
He has a face only a mother would love.
Bill Clements
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January 06, 2012
Cobb EMC Member - Excellent comments with depth and throughness - Cobb EMC Members need a reasonable escape from such abuse !
EMC Member
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January 06, 2012
It troubles me greatly that the EMC is paying for Dwight Brown's legal defense. O.C.G.A. 46-3-306 says that the EMC shall have the power to indemnify officers against criminal prosecution. It does not state that they MUST indemnify officers against criminal prosecution.

In reality, most corporate boards will indemnify their officers because corporations get sued every day. Usually a corporation will make an exception to indemnifying against charges related to defrauding the corporation. Cobb EMC does not make any exceptions in its bylaws. In fact the Cobb EMC bylaws indemnify officers and board members to the fullest extent of Georgia law.

I agree that Cobb EMC should provide indemnification for its officers and board members. After all, who would want to serve on the board if a power line can easily fall on and kill a child? The parents would probably sue the power company and its board for criminal negligence. What person in their right mind would want to be exposed personally to something like this? This is why most corporate boards indemnify their officers and boards against criminal and civil proceedings involving the corporation.

Georgia code goes on to say that the EMC can only indemnify an officer if:

"he acted in a manner he reasonably believed to be in or not opposed to the best interests of the electric membership corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful."

I am clearly not a legal scholar, but I would think that this could give the board a way out of paying Brown's legal fees, especially if they can prove that Brown's actions could not be reasonably believed to be in the best interests of the EMC.

At the very least, I would suggest that the EMC make a policy change or bylaw change and state that if the charges are related to defrauding the EMC, the EMC won't pay.

EMC Member
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January 06, 2012
One thing I left out is that the Cobb EMC bylaws authorize the board to make a determination as to if indemnification is proper. Article X, Section 1 states:

"If any such indemnification is requested pursuant to Sections 34C-617 (a) or (b) of said Act or laws, the Board of Directors shall cause a determination to be made (unless a court has ordered the indemnification) in one of the manners prescribed in Section 34C-617 (d) of said Act or laws as to whether indemnification of the party requesting indemnification is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 34C-617 (a) or (b) of said Act or laws. Upon any such determination that such indemnification is proper, the Corporation shall make indemnification payments of liability, cost, payment or expense asserted against, or paid or incurred by, him in his capacity as such a director, officer, employee or agent to the maximum extent permitted by said sections of said Act or laws."

It would be interesting to know who on the board voted to indemnify Mr. Brown or if a vote was ever taken.

anonymous
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January 06, 2012
I said the same thing to "informed member" 6 hours ago, but in one sentence.
EMC Saga
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January 06, 2012
"Second Criminal Case Against Brown To Proceed"-Oh, Hot Diggity Dog, Yippee, Yeah!!!!! The wheels of court justice turn slowly, but maybe we are getting to the end fo this travesty.
Cobb EMC owner
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January 06, 2012
Finally, a ruling that makes legal sense and appreciate the Judge explaining the reasons. However, let's wait and see what tricks are up the sleeves of Brown and Barnes (sounds like a firm name that wants to help you with your car accidents and get you more money!!!!)

Does anyone know if Dwight has to pay back his consulting fees after his retirement.

Can't wait until March 31st. Maybe the two remaining incumbent board members will decide not to run again.
julie smart
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January 06, 2012
The EMC still paying Browns fees is so wrong. They are laughing all the way to the bank that EMC is still paying the legal bills. They are not going to stop until it is dry and near bankrupt. Can you imagine the decrease in our bills if that amount had been applied as a credit to us?
fourus
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January 06, 2012
MDJ, glad you captioned the picture for clarification, looked more like Jabba the Hutt at first glance. Funny thing though Dwight, I don't think I will ever learn to appreciate you. This is primarily because of all that has come out from your EMC stint, you just not worthy of appreciation.
Julie Smart
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January 06, 2012
Dwight, will not be looking like Big Back Brown once he gets in those prison uniforms. (custom made too)
Pat H
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January 06, 2012
So, when will the indictments begin against each and all of the Board, who have been as criminal if not more than Brown himself.

Also, the attorneys that advised Brown and the Board to file the witness tampering suit need to face charges themselves, and their insurance should reimburse the EMC for such malpractice.

Brown's attorneys are not representing the EMC which is owned by the members. We have not had legal representation at all by this expensive crew of thieves.
EMC owner
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January 06, 2012
I agree with indictments against the board, however, it sounds like the EMC would foot their legal bills too.

Totally agree, Barnes is NOT representing the EMC he is representing Brown. The EMC has not been indicated, only Brown.
anonymous
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January 06, 2012
Now let's get rid off all the WARTS on Cobb EMC.

W = Plant "W"ashington

A = Dean "A"lford

R = J. W. "R"ayder

T = "T"he defense lawyers

S = Anis "S"herali
anonymous
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January 06, 2012
Sam better get his resume updated.
evan gammage
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January 06, 2012
Please keep us informed as to when jury selection might begin. I, for one, will keep my calendar open if I'm needed.
Take Back Cobb EMC
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January 05, 2012
Mr. Brown's legal options are running thin. Time to go to trial...

This is welcome news for Cobb EMC members, who after years of fighting, are finally seeing some justice.
Mike Jones
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January 05, 2012
Are the members of Cobb EMC still paying Dwight Browns legal bills? Why?
EMC Member
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January 05, 2012
Yes...because Chip Nelson stll loves Dwight.
informed member
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January 06, 2012
State law requires that EMC's provide Directors/Executives legal representation while serving. Since all this started while Brown was the CEO the EMC (members) will continue to pay his legal fees.
anonymous
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January 06, 2012
@informed member

The law does not require a GA EMC to pay legal fees for someone who commits a crime against that EMC.
EMC Members
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January 05, 2012
Can't wait to see what other tricks old Roy tries next. Let justice be served!
concerned citizen
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December 13, 2012
Why do we never read or hear about dean Alford He was Browns right hand man and pulled strings for him at the capitol
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