FAIRHOPE, Ala. - The Alabama statute that mandates city contracts be in writing seems clear enough, but for at least a decade, Fairhope has neither used written contracts for attorneys it hires nor involved the City Council in the hiring process.

That failure of the city to require council approval and written contracts with attorneys representing the city was disclosed in a September article by The Fairhope Courier, as one in a series of stories this year about lawsuit costs.

The longstanding policy of the mayor hiring lawyers on a handshake without council involvement, as discovered by The Courier, may have changed somewhat during the past six months, but a new policy described by several city officials and staff has yet to be tested.

“Any future (attorney) contracts would have to be brought before the council to be approved, as well as the hourly rate,” Council President Lonnie Mixon said this week, adding that it would be appropriate at a council meeting next year to explain to the public the past policy and the new one.

“The more information we put on the table for people to look at the better,” Mixon said. “Our goal is for everything to be open and above board and for everybody to know what’s going on.”

On Thursday, City Attorney Marion “Tut” Wynne stated that, while some municipal agreements have been enforced without a written contract, “it is the best practice to have a written contract signed by the appropriate party representatives. My understanding is that the city is striving to achieve this.”

The city’s prior longstanding policy led to considerable difficulty this year at tracking the costs to local taxpayers of city lawsuits and obtaining other related information.

Significant efforts were required by The Courier, involving repeated requests under the state Open Records Act, to obtain some, but not all, the information sought, which lawyers for both the Alabama League of Municipalities and the Alabama Press Association stated should be disclosed under the state sunshine law.

In one case alone, the “Dyas Triangle” lawsuit filed against the city in April 2008, the city had spent more than a half million dollars in legal fees by August, according to information obtained by The Courier.

That case is set for a February jury trial in federal court in Mobile. As in other attorney contracts sought, there is no written agreement describing the terms of the contract between the Hand Arendall law firm and the city, including the hourly rate of attorney fees charged.

Mixon, as well as Councilmen Rick Kingrea and Dan Stankoski, said this week that if Wynne and the ALM determined that written contracts for attorneys representing the city, then Fairhope should follow that advice in the future. But none of the officials interviewed believed that current contracts with attorneys be reduced to writing, only in future cases.

“If they say we have to do contracts in writing, then we will want to come into compliance with the law,” Stankoski said. ‘We’d probably put up a resolution for the council to vote on and then see where we are depending on what the legal position is.”

Ala. Code (1975) Section 11-47-5 states that “contracts entered into by a municipality shall be in writing, signed and executed in the name of the city or town by the officers authorized to make the same and by the party contracting.”

In an August interview with City Clerk Lisa Hanks, she said, “So far as I know, there aren’t any,” in responding to The Courier’s request for all written contracts with attorneys representing the city, its officials and staff in pending litigation.

State law also requires that the council first approve its contracts by a vote during an open meeting, which are then executed by its mayor, according to the ALM, citing the legislative powers vested in the council by Sections 11-43-43 and 11-43-56.

“Municipal contracting is a two-step procedure requiring cooperation between the mayor and the council,” according to an article on municipal contracting in “Selected Readings for the Municipal Official” published in 2008 by ALM. “Ordinarily, the council must decide whether the municipality should enter into the contract. After the council votes to accept a contract, the mayor must then execute the contract for the municipality.”

That first step of council approval, however, has been ignored for the past 10 years when lawyers are involved. The mayor’s office has hired lawyers by oral contract without involving the council, Mayor Tim Kant stated during an August interview, noting that it was a policy he had inherited from his predecessor.

“My opinion is in going forward with any litigation which will cost a good bit of money with attorneys those will be discussed and selected by the council and mayor as we move forward,” Kant said this week.

Earlier this year, the mayor’s office did not inform the council of a case related to the Dyas Triangle litigation in which the city’s liability insurance company sued the city in July, claiming it was not obligated to defend the city and its officials.

To defend the city in that lawsuit, Kant also hired the Hand Arendall by oral contract. He neither informed the council or Kingrea, who serves as the council’s liaison on lawsuit issues.

“I think that has been rectified and the mayor’s office has made an effort to try and inform me of all the lawsuits,” he said. “I was a little perturbed about the (related) case because I didn't know anything about it, and I kind of felt like we were getting bamboozled. I feel much more comfortable now. I tend to think that we need to have a contract with Hand Arendall.”

Although Wynne indicated this week that it is the best practice to put contracts in writing he also said that may not be the case with some attorney contracts.

“When city cases are handled by insurers, they hire the lawyers and the city has no contracts in those cases,” Wynne stated. “As to other professionals, I do believe the city has terms of engagement with them and those terms are approved by the council. The terms of engagement are a matter of public record. As to other law firms employed by Fairhope, I will defer to them as to the status of their engaged agreements. There maybe matters in the agreements that would be protected by the attorney-client privilege.”

Throughout its many efforts this year to obtain information regarding the hourly rate and total fees charged by the Hand Arendall firm in the Dyas lawsuit, the city often cited the attorney-client privilege as a reason for not disclosing the information, sometimes on the advice of an attorney at that firm.

“I don’t think there’s any question that just because that’s the way we’ve done it in the past, there’s no reason for doing that way in the future,” Kingrea said. “If we need to have contracts in writing, then we need to put them in writing. And we should do that post haste.”