FAIRHOPE, Ala. The City Council twice violated the state Open Meetings Act Monday when it convened an “executive session” without first stating the purpose of the private meeting and without receiving a written opinion or oral declaration from its attorney that the meeting met the statutory requirements to discuss pending litigation, according to an attorney for the Alabama Press Association.

“Alabama Code § 36-25A-7(b)(2) is very clear,” said Montgomery attorney Dennis R. Bailey, general counsel for the APA. “A majority must adopt by recorded vote, a motion ‘setting out the purpose of the executive session.’”

At Monday’s council meeting, Council President Lonnie Mixon said an item not on the agenda would be added to go into executive session. The council voted to add that item to the agenda and, at the the end of the Nov. 8 meeting, voted unanimously to convene an executive session, but without stating its purpose.

Mixon said the council would reconvene in about 15 minutes.

All five council members, joined by City Attorney Marion "Tut" Wynne and Mayor Tim Kant, left the council chambers through a door behind the dais. They returned in about 15 minutes and took their seats.

Without making any other statements, other than to move and vote to adjourn, the council members adjourned the meeting.

“I really don’t know if they have to,” said Wynne, when asked immediately after the meeting if the council needed to state the purpose of the executive session before meeting.

“They just talked about litigation (in the executive session), but they didn’t make any decisions. They’d have to do that in public out here.”

In addition to not stating the purpose of the executive session, which Wynne indicated involved the discussion of litigation issues – and which is permitted under the Act so long as certain procedures are followed over and above other executive session purposes – the council did not first “receive a written opinion or oral declaration reflected in the minutes from an attorney licensed to practice law in Alabama that this exception is applicable to the planned discussion.”

In addition to mandating that all votes be taken in public, as Wynne indicated, the statute also prohibits “deliberation” during an executive session. If such deliberation as defined in the Act occurs, the deliberation “shall be concluded and the deliberation shall be conducted in the open portion of the meeting or the deliberation shall cease.”

Bailey said the procedures of the OMA that were violated by the council Monday are to make it more difficult to meet in closed-door meetings.

The law’s “stated public policy disfavors going into executive session,” Bailey said Tuesday. “So the legislature created procedures you have to follow before you go into one – and the certification is just one of them – or it would just be too easy to say we’re just going into one. It would be too easy to do what they just did.”

The state OMA was enacted by the legislature in 2005 and extensively overhauled the existing law, he said.

“The whole purpose was to make it more difficult to go into executive session than it had been in the past and to discourage their use,” he said, adding that the statute specifically does not require executive sessions under any circumstances. “That makes it easy for a public body to say maybe we could go into executive session, but we’re not and we don’t have to. So, we’re going to discuss this in the open.”