FAIRHOPE, Ala. - Shortly before the City Council met in open session two weeks ago to hear the employment termination appeal of the former human resources director, three council members met in small private gatherings with the city attorney.

“Mr. (Marion “Tut”) Wynne was giving us legal advice as to how we should conduct the meeting,” Council President Lonnie Mixon said last week. “There were never more than two of us in the room with him at the same time. When (Councilman Dan) Stankoski came in, (Councilman Rick) Kingrea left.”

The council members were told by Wynne that they should conduct the hearing of former HR director Rhonda Bishop in the open but they could also deliberate her case in private. The council did conduct the hearing and deliberation in that manner, after which the council decided in an open meeting not to overturn Mayor Tim Kant’s termination decision.

Mixon said because a quorum of three council members never met at the same time with Wynne just prior to the 8:30 a.m. March 11 appeal hearing, the three council members did not violate the state Open Meetings Act.

“As far as I’m concerned, everything’s been in the open, and we have not violated the Open Meetings Act,” Mixon said.

The OMA requires that “meetings” occur under certain circumstances when a quorum of a governmental body gathers, requiring advance notice to the public and open access to the meeting.

Some gatherings are specifically excluded from the definition of “meeting,” such as when a quorum attends conventions and other social affairs, “so long as the governmental body does not deliberate specific matters that, at the time of the exchange, the participating members expect to come before the governmental body at a later date.” In those cases, the OMA is not violated when a quorum gathers.

The Act also allows private executive sessions of a council to discuss pending litigation and receive legal advice, but those meetings must be announced in an open meeting and voted on by the body before convening in private.

“It was not a called meeting,” Kingrea said of the private gatherings that occurred on March 11.

Wynne said he didn’t have time to request an executive session to give the council members legal advice about the upcoming hearing that day, which is why the private gatherings occurred.

“Well, I didn’t have time,” Wynne said shortly after the March 11 hearing. “I met with Lonnie for a few minutes alone, and then I don’t remember exactly. I think Dan came in for a minute, and Rick came in for a minute, and then Rick went out. It wasn’t with everybody, it was just with a couple people that were back there.”

Although the OMA states that “meetings” only exist when a quorum gathers under certain defined circumstances, thus triggering the public notice and access requirements of the Act, a case will be argued before the Alabama Supreme Court this month on whether gatherings of less than a quorum like those by the three Fairhope council members on March 11 are covered by the OMA.

“You are raising the question of the legality of ‘serial meetings,’” Dennis Bailey, general counsel for the Alabama Press Association, said last week about the gathering of the three Fairhope council members. “This issue will be argued before the Alabama Supreme Court on March 31, 2011, at Jacksonville State University. There are several cases from other states holding that ‘serial meetings’ cannot be used to circumvent the quorum requirements.”

That case was brought by a Montgomery citizen against the Montgomery County School Board for holding staggered gatherings of all board members but in numbers less than a quorum on the same day to discuss issues regarding the superintendent that came up at an open meeting the next day.

The circuit court in Montgomery found no OMA violation because the gatherings involved less than a quorum and did not therefore meet the specific statutory definition of meetings, and thus did not trigger the notice and access provisions of the Act. The citizen appealed from that decision.

“We showed up because we had an 8:30 a.m. hearing, and we happened to show up over there, and that’s what it was,” Stankoski said of the conference room where the gatherings took place. “It wasn’t one of these (illegal meetings). If you’re looking for a conspiracy theory go somewhere else because it wasn’t there.”