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When attorneys challenged Fulton County’s minority contracts program, they began their investigation by obtaining a list of county purchase orders broken down by each contractor’s race. Attorneys Patrick W. McKee and R. Mason Barge thought it would be relatively easy to correlate the purchase orders with the corresponding bid files to determine if the winning bidders were also the lowest. But the filing numbers of the bids and corresponding purchase orders didn’t match, and the county claimed it didn’t have a list cross-referencing them, McKee says. So the lawyers spent more than six months mining thousands of pages of poorly organized records to develop the evidence that became the heart of their affirmative action case. Barge and McKee warned Fulton lawyers at the time that if they won the case, this extra work would cost the county dearly. On Monday, U.S. District Judge Thomas W. Thrash Jr. said, “That day has arrived.” Thrash ordered Fulton to pay Barge and McKee $1.089 million in legal fees for expenses incurred in their successful legal battle against the county’s Minority and Female Business Enterprise Program. Webster Green Thumb v. Fulton County, No. 1:96-CV-2399 (N.D. Ga., Sept. 18, 2000). The largest single expense-$287,657.50-was for 2,000 hours spent culling through and analyzing 4,000 county bids and corresponding purchase orders. The county, “was warned of the ramifications of its actions and nevertheless refused to assist Plaintiff’s counsel,” Thrash said in his 107-page order. “Fulton County is directly responsible, in part, for the enormous number of hours expended on document production and analysis in this case.” But the county is not giving up. County Attorney Overtis Hicks “O.V.” Brantley says that the Fulton County Commission earlier had directed her to appeal the case. Now, the county will simply add Thrash’s fee ruling to its growing list of appeals. “I expect if we get to the end of the case, and we have not prevailed, we will work out the fees at that time,” she says. “We believe we will prevail, and no attorneys’ fees will be awarded.” Meanwhile, she says, “We have no intention of paying attorney’s fees at this time. I don’t consider their temporary status of having prevailed to be permanent.” District 6 Commissioner Nancy A. Boxill says she enthusiastically supports an appeal. “We believe the practices we were employing were fair and just and not illegal,” she says. “So we must defend that position as vigorously and as thoroughly as we can. …The question is not whether we can afford to pursue it, the question is did we do something wrong. We have already taken a position that we can afford to pursue it, and we did nothing wrong.” The county already has spent at least $500,000 defending the case, and the commission allocated an additional $175,000 for the appeal, according to Brantley. Boxill is one of three current commissioners, all Democrats, who support continuing the appeal. Three others, all Republicans, including Chairman Michael Kenn, haven’t supported an appeal. One commission seat is vacant because of the resignation of Michael Hightower, who pleaded guilty in June to a federal corruption charge. Barge and McKee had asked for $1.5 million to compensate them for four years of litigation on behalf of Webster Green Thumb Co., a small Newnan landscaping firm that claimed its low bids for county work were passed over because the owners are white. Last February, an eight-person jury awarded the firm, owned by Daniel and Peggy Webster, $8,750 in compensatory damages for lost profits. BID DOCUMENTS CRITICAL The bid documents retrieved from the county, Thrash noted, were central to the case. They revealed that white bidders often were disqualified and higher minority bidders were awarded contracts so that the program could meet its minority participation goals. Minority firm bids were solicited after bids were closed, and bids sometimes were split so that minority firms received part of the contracts when the majority firms were the overall low bidders. More than a year ago, Thrash ruled that the county’s Minority and Female Business Enterprise program (MFBE) was unconstitutional. In July-only a week after hearing oral arguments-the 11th U.S. Circuit Court of Appeals rejected with no comment the county’s appeal of Thrash’s ruling. Brantley says the county has petitioned the appeals court for an en banc hearing. If that fails, she says the county intends to petition the Supreme Court to hear the case. The jury verdict is still on appeal before the 11th Circuit. But Thrash noted in his order that neither his ruling nor the jury verdict broke new legal ground. “It simply stands on the solid ground of the Supreme Court and 11th Circuit precedent,” he wrote. “Obviously, we think we could distinguish our case from the other cases,” Brantley says while declining to discuss specifics. “I thought it was an entirely fair reward,” Barge says. “The plaintiffs contributed to expenses to the degree they were financially able. They certainly were not given a free ride. But there were clearly limits as to what would be fair to expect from them. We had to finance the suit ourselves.” Because the fee order was issued as a finding of fact, McKee says, “The appeal does not stay the judgment. It is payable immediately unless the court issues a stay.” McKee thinks it unlikely the judge will stay the judgment. “This order is the most thorough attorney’s fees order I have ever seen,” he says. “I do not believe there is one chance out of a million that this order is going to be overturned.” “It’s an extremely carefully drafted order,” Barge says. “It’s 107 pages. There is incredible attention to detail. The judge is very careful to make his finding under established legal principles. They haven’t got a prayer of getting that order modified.” Brantley disagrees. “The appeal to the 11th Circuit will stay his [Thrash's] order,” she says. Thrash clearly took issue in his order with the county’s dogged pursuit of the case. “The fee award is necessarily a large one,” he wrote. “It reflects Fulton County’s determination to defend at whatever cost an MFBE program that was legally indefensible.” ‘NOT AN ISOLATED … VIOLATION’ Webster Green Thumb Co., the judge noted, “did not seek relief for a relatively isolated constitutional violation that Fulton County committed only against it. Instead, [Webster] sought to dismantle an unconstitutional affirmative action plan that steered lucrative county contracts to minorities and women and to the disadvantage of others who sought to conduct business with Fulton County. Although it is true that the Court refused to certify this case as a class action, that in no way negates the importance of the case from a public policy standpoint.” Barge, whose firm Parks, Chesin & Miller is also challenging the Atlanta city government’s minority set-aside programs on behalf of four white plaintiffs, says Thrash’s rulings strengthen the case against the city. “The Fulton County program was closer to being legal than the City of Atlanta’s is,” he says. “Any [U.S.] district judge looking at the 11th Circuit decision and seeing the 11th Circuit didn’t even think the case was close enough to warrant writing an opinion will certainly take some guidance from that.”

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