FAIRHOPE, Ala. — Editor’s note: This is the seventh installment in a continuing series on Sunshine in Government — open meetings and public records laws and their implementation in Fairhope.

By its own admission Monday, in the form of a motion passed unanimously by all five members, the City Council violated the Alabama Open Meetings Act during a recent executive session when it authorized Mayor Tim Kant to sign an agreement to settle the dispute with Green Nurseries over the median construction project in front of that business on Greeno Road, an attorney with the Alabama Press Association said this week.

“They can’t take any vote in executive session,” said Dennis Bailey, a Montgomery attorney and general counsel for the APA, referring to actions prohibited during closed meetings otherwise properly convened pursuant to the open meetings statute. “They’re there to get advice from their attorney. They’re supposed to come out (in open session) for their deliberations. If they gave him the authority during the executive session, that would be a violation.”

At the end of Monday’s council meeting, the council unanimously passed a motion stating that the council did take that action in a previous executive session.

“We authorized the mayor previously in executive session to (sign) this agreement,” Council President Bob Gentle said in the motion he made Monday night.

To make that motion, as council president, Gentle first had to take the parliamentary step of passing the chairman’s gavel to another council member and ask for a vote to be heard on the question, which the other four council members approved unanimously.

“Last Friday, the city through the mayor signed an agreement with the Greens for a full and final settlement of the issues,” said Gentle, after he received permission to address the issue. “There was confusion as to which people were supposed to be there. I was not there (when the settlement agreement was signed). The purpose in this discussion is that we pass a resolution that we authorized the mayor previously in executive session to (sign) this agreement.”

City Clerk Lisa Hanks said by e-mail Tuesday that Gentle stated (during Monday’s meeting) that the (council) needed to pass a resolution stating that the (council) authorized Kant to execute the agreement with the Greens during the last executive session.   

“(Councilman Dan) Stankoski moved for the adoption of the following resolution, a resolution authorizing Mayor Timothy M. Kant to execute an agreement between The City of Fairhope and Green Nurseries and Landscape Design, Inc. and Robert M. Green, Jr. which was agreed to during the last executive session,” Hanks’ e-mail stated. “Seconded by Quinn, motion passed unanimously by voice vote.”

That the council authorized the mayor during a previous executive session to sign the settlement agreement seems clear, as evidenced by its own action Monday night.

After the council work session (held just prior to the regular City Council meeting Monday) Kant specified the executive session took place at the Sept. 8 council meeting.

“I got the authorization during that executive session,” he said.

City Attorney Marion “Tut” Wynne also said in a telephone interview Monday that Kant had received the authorization to sign the settlement agreement during the Sept. 8 executive session.

“It does look like they have authorized (the mayor) to sign the agreement in an executive session,” Bailey said Tuesday. “That should have been done in an open meeting.”

The Alabama Open Meetings Law permits executive sessions to be held by governmental bodies such as city councils for certain purposes including discussions with their attorneys regarding the “legal ramifications of and legal options for pending litigation, controversies not yet being litigated but imminently likely to be litigated if the governmental body pursues a proposed course of action.”

However, the statute also sets out explicitly that no “deliberation” by a council is to occur in an executive session.

“Notwithstanding the foregoing, if any deliberation begins among the members of the governmental body regarding what action to take relating to pending or threatened litigation based upon the advice of counsel, the executive session shall be concluded and the deliberation shall be conducted in the open portion of the meeting or the deliberation shall cease,” the Open Meetings Law reads.

Bailey said that once such deliberation starts, a council member must leave the meeting or face the penalty provisions of the statute, which include civil fines of no more than $1,000 per violation or one-half of that month’s salary for service on that governmental body, whichever is less.

In short, it seems clear that all five council members may have admitted to a violation of the Open Meetings Law by their vote Monday night, since they were all present at the Sept. 8 executive session (according to council minutes approved Monday). Their vote Monday evening indicates they deliberated during a closed meeting.

According to the statute, the penalty provisions apply only to members of governmental bodies such as councils and not to other officials such as mayor or city attorneys who do not sit on that body.

Baldwin County District Attorney Judy Newcomb did not immediately return a phone call for comment for this story. The open meetings law states that enforcement actions may be brought in the county where the governmental body’s primary office is located by the local district attorney, as well as by Alabama citizens and others.

“They should have said they were uncomfortable, and they shouldn’t be conducting deliberations in an executive session,” said Bailey, regarding a council member’s proper course of action under the Open Meetings Law once the council began discussing whether to give the mayor authorization to sign the settlement agreement.

Bailey said if the council member could not convince the council to reconvene in open session to deliberate as the statute requires, “they should have left the meeting at that point.”

The Friday meeting

What is less clear is what happened during the Friday meeting in Wynne’s office when the settlement agreement was signed, and whether this meeting also violated the Sunshine laws.

Accounts vary of what occurred that day, but several people who were there agreed that the following people were present: Wynne, Kant, Gentle, Bobby and Debra Green (owners of Green Nurseries), two attorneys representing the Greens, representatives from the Alabama Department of Transportation, Councilman Dan Stankoski, Councilman Mike Ford and Councilman-elect Lonnie Mixon.

Kant said Monday that when Ford appeared at the meeting, Wynne said a quorum of the council may have triggered the application of the Open Meetings Law, and that the meeting had to be stopped or some council members had to leave.

“When Mike (Ford) showed up, Tut said, ‘we needed to end the meeting,’” Kant said. “We went into his office.”

Kant said he then went to Wynne’s private office to sign the agreement but without the other council members present.

Although it is unclear what occurred during that meeting, there is no dispute that the public was not given any advance notice of that meeting, a city official said.