DA says Birrell committed no criminal acts in chicken case
by Jon Gillooly
July 13, 2013 11:40 PM | 2353 views | 11 11 comments | 10 10 recommendations | email to a friend | print
JoAnn Birrell
JoAnn Birrell
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MARIETTA — Commissioner JoAnn Birrell will not be prosecuted for alleged false statements made during the course of an ethics investigation about an east Cobb man’s chickens, District Attorney Vic Reynolds said.

In June, Reynolds and Cobb Sheriff Neil Warren asked the Georgia Bureau of Investigation to examine accusations Joseph Pond of east Cobb made against Birrell.

Pond and Birrell have been at odds ever since Pond’s neighbor complained to Birrell about his chickens.

The chickens violated the county’s zoning ordinance and Pond was forced to get rid of them. Pond responded by filing two ethics complaints against Birrell with the county’s ethics board, both of which were dismissed.

Reynolds said after receiving the results of the GBI investigation Thursday, he determined that Birrell engaged in no criminal wrongdoing.

“According to our conversation with GBI, there were some inaccuracies, but it didn’t rise up to anything that we believe to be an intentional false statement, so there’s no criminal matter here, and as far as we’re concerned the matter is over,” Reynolds said.

For example, the GBI found that Birrell falsely stated that Pond attended “virtually every commission meeting wearing a chicken hat.”

The GBI reports that, “The facts indicate that Mr. Pond attended and spoke at 10 of 30 commissioner meetings during the time period of Aug. 1, 2011, and Oct. 30, 2012. Moreover, the evidence indicates that Mr. Pond did not purchase the chicken hat in question until May 7, 2012.”

A matter of definitions

The GBI cites Merriam-Webster’s definition of “virtually” as “almost or entirely or nearly.”

“Clearly, 10 out of 30 is not ‘virtually every,’” the GBI report states.

The GBI goes on to say that Birrell’s Marietta attorney, Fred Bentley Jr., admitted the decision to use the word “virtually” was his “and that he wrote the brief and intended the brief as a persuasive document.”

Reynolds said the report settled the matter.

“Commissioner Birrell did nothing of a criminal nature,” he said. “In fact, I will state for the public record that during the course of this investigation she has not contacted this office, she has acted and conducted herself above reproach, and there are absolutely categorically, unequivocally no criminal acts committed by her whatsoever.”

A timeline included in the report shows how Pond brought chickens to his residence in April 2011. In June 2011, his neighbor, Carole Kell, mother of Cobb Superior Court Judge Tain Kell, reported to Birrell that Pond was in violation of the county’s zoning ordinance.

Pond applied for a variance to have chickens, but was denied and later cited with a code violation. He later filed an ethics complaint against Birrell, which was dismissed by the county’s ethics board in December 2012.

Pond filed a second ethics complaint against Birrell that also was dismissed April 30.

Following the dismissal of both complaints, Pond asked Reynolds and Warren to investigate Birrell, accusing her of making false statements during her ethics hearing.

A waste of taxpayer money?

Birrell called the GBI report and statements by Reynolds “very good news.”

“I’ve maintained my innocence all along with the last two claims with the ethics board, and once again, it’s been dismissed and hopefully the matter is over and put to rest now after three dismissals and being exonerated and cleared on all three filings,” Birrell said. “I truly hope that this is over and put to rest and we can move on and not continue to waste taxpayers’ money and county and state resources and time.”

In reaction to Reynolds’ comments saying the case was over, Pond honed in on some of the inaccuracies in the GBI report, citing the brief Bentley filed.

“Commissioner Birrell admitted to the GBI that some of the information in the brief was not accurate,” Pond said. “Regardless of this and other evidence, Reynolds concludes that no criminal acts occurred. I am disappointed that the county aggressively prosecutes common residents for the most minor offenses, but turns its head when a sitting commissioner breaks not just the state law, but the trust of the people.”

Pond said he doesn’t think Birrell is a bad person.

“She probably did not consider the questionable ethics of the customs presented to her by the previous commissioner, Chairman Tim Lee,” Pond said. “She may have just scanned the briefs written by attorney Bentley, without thinking about fact-checking. Surely she trusted that he was operating fully within the law, and would not put her in a compromising position. Nonetheless, the ethics board was given a sworn brief with false information, and that is not legal under Georgia state law.”

Pond said he was sorry Birrell believes it is a waste of taxpayer money to ensure “an honest and transparent government.”

“I think that spending $4.8 million dollars for a transit study is a waste of taxpayer money,” he said. “If she had not hired her attorney, maybe the brief would have (been) less ‘persuasive’ and more factual. The commissioners are elected by the people to run the affairs of our county government; it is our duty to watch over them and ensure that they are living up to the oath of office that they took. I stand by my actions, and will continue to watch over and participate in our local government — an activity that more residents should take up.”

Comments
(11)
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C. Smith
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July 15, 2013
Pond said, "I did not like the county law concerning poultry, and I worked within the system to change that law. I expect our elected officials to do the same." They did do the same. They reviewed and amended laws concerning poultry, however, not to Mr. Pond's satisfaction. What Mr. Pond is saying is "I expect to get my way and I will wear chicken hats, pitch childish tantrems, waste taxpayer money, and do whatever I can to get my way." Well, Mr. Pond, you didn't get your way three times with ethics complaints and you didn't get your way on poultry laws. If you file another complaint, I will file a citizens complaint for you to have a mental evaluation. You lost. Either finally accept that; or move somewhere that has the poultry laws that you want; or check yourself in somewhere. Your 15 minutes are over, do you not get that?
anonymous
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July 15, 2013
I want an investigation into the mental stability of Mr. Pond.
anonymous
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July 15, 2013
I absolutely categorically, unequivocally hope Pond will move on with his life now and will not waste further taxpayers' money. If Pond costs the county any more money, it should come directly from Pond's pocket and not mine.
Jack S
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July 14, 2013
So, let me see if I understand the process: you violate a County ordinances by bringing chickens into a residential neighborhood, complaints are filed, and you are issued a code violation. Your next step is to file an ethics charges against the Commissioner? makes sense to me.
Gringo Bandito
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July 15, 2013
She lied about how many times he wore a chicken hat. That is what Joseph Pond considers a crime that the DA should be bringing charges for.
JoEllen Smith
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July 14, 2013
First, I wish to say that I'm impressed with the MDJ that they put this prominently on the front page. Often when someone is accused, it's front page news. But then when he or she is cleared, it is buried. Good for you!

Now as to Mr. Pond. I recall in the last article written on this topic, you stated that if Commissioner Birrell was cleared by the GBI you would issue an apology. I hope you are a man of your word and we all see that apology very soon. But from your comments it seems as if you will never be satisfied and are still arguing a loosing case and I, a taxpayer, am footing your bill. I have a sneaking suspicion you might be running for some office and need the publicity. Your publicity is not a good use of my tax dollars. I think most people have a few ideas on how that money could have been put to better use rather than supporting your grudge for not being allowed to have chickens on 1/2 an acre.

The Commissioner has now been cleared, three times by two different entities, once by the GBI! She obviously did nothing wrong. Please let this be the end of it.
Joseph Pond
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July 15, 2013
The Republican DA is choosing not pursue charges against the Republican Commissioner- the GBI did NOT 'clear' the Commissioner. In fact, the Commissioner admitted to the GBI that the information that sworn under oath was the truth was in fact NOT the truth, which is illegal under state law. Save your mock outrage about the use of taxpayers money on this case- this money came from the budget of the Attorney's Office.

Perhaps you should read that facts in the case before you use the MDJ as a publicity vehicle for perhaps your next run at office. The Ethics charges against the Commissioner were dismissed because they were not filed within six months of the action- she was not cleared. She and her attorney gave false and misleading testimony in her defense of the ethics charges- a criminal act under GA law, and the source of the GBI investigation. The second ethics charge was to bring this criminal activity to the Ethics Board attention- the Ethics Board deferred to the DA on this; they did not clear her of this charge.

This is not about poultry- this is about our elected officials carrying out their oath of office. I did not like the county law concerning poultry, and I worked within the system to change that law. I expect our elected officials to do the same.
Dear Mr Pond Sir
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July 15, 2013
This is not about officials carrying out their oath or about how many times you wore a chicken hat, it is in my opionion about a looney guy who can't get his way and does everything in his power including wasting taxpayer money given to the Attorney's office so he can whine about being treated unfairly. And now you suggest that because the commissioner and DA are republicans you are again being treated unfairly. Personally I would suggest you consider consuling because it appears you have an ego problem which may be able to be treated. And as one who followed this story and pays taxes, I do think you owe an appology to the commssioner and the citizens of Cobb County for wasting our time and money.
Gringo Bandito
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July 14, 2013
I wonder if Mr. Pond will issue the apology that he promised.
anonymous
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July 16, 2013
Mr. Pond will poke holes in his statements which were: "If the GBI agents look at the evidence and conclude that no law was broken, I will issue an apology to Commissioner Birrell.” Well, Birrell said Pond wore the chicken hat more times than he actually did, so I guess that releases him from an apology. And with all the problems going on in the world, we really needed to spend money on how many times Pond actually wore the chicken hat and when Pond bought the chicken hat. Pond also said to save the outrage as to taxpayer's money because "this money came from the budget of the Attorney's Office." If this kook files any more charges, I for one will file charges against this kook for wasting my money. I don't doubt for one minute the GBI has laughed their fannies off at investigating when somebody purchased a chicken hat on what date and how many times they wore the chicken hat as opposed to when somebody said they wore the chicken hat. Lawd. Get a life, Pond.

Run him out!
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July 14, 2013
This whole thing is about how many times he wore a chicken hat, that's his complaint? Just Wow! I think he should have to pay back the cost of the investigation. If it were up to me I would run him out of the county.
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