FAIRHOPE, Ala. - Following the City Council’s failure Monday to comply with two requirements of the state Open Meetings Act, Fairhope’s city attorney does not think any changes are needed in council procedures but is willing to review them.

“I can’t think of any changes, but I would be glad … to see if any changes are needed,” City Attorney Marion “Tut” Wynne stated Wednesday.

On Nov. 8, the council voted to meet in private to discuss pending litigation without first “setting out the purpose of the executive session,” and also without making a declaration that the purpose to discuss pending litigation met legal requirements and was therefore a legitimate exception to open meeting requirements.

“Section 36-25A-7 of the Code of Alabama sets forth the nine purposes for which an exception is allowed,” an attorney with the Alabama League of Municipalities stated Wednesday. “The procedure for calling an executive session is set out in 36-25A-7(b).”

Those sections do authorize a closed-door meeting to discuss pending litigation but only after a vote is taken to convene in private, which must follow the statement of what the meeting is for and the legal declaration that the specific “pending litigation” exception is justified.

“Prior to voting to convene an executive session under this exception the governmental body shall 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,” the Act states.

The statute also requires that a majority of the members must “adopt, by recorded vote, a motion calling for the executive session and setting out the purpose of the executive session.” The OMA further requires that when meeting to discuss pending litigation specifically, “an oral or written declaration shall be made, prior to the vote.”

On Monday, the council neither neither stated publicly why it was meeting behind closed doors, nor followed the procedure that an attorney-authorized declaration be made prior to the executive session vote.

The executive session itself, which came at the end of the council meeting, was not included on the written council agenda but was added by voice vote after announced by Council President Lonnie Mixon.

“I was not informed of the executive session nor the topic and was surprised that we weren’t given a heads-up,” Councilwoman Debbie Quinn stated Thursday. “Last year it was standard procedure to have a letter from Mr. Wynne prior to an executive session, where he would state the nature of the session and the approximate length of time the session last, before the council left the dais. I don’t know why that didn’t happen Monday night, but it should be standard practice as stated in the law.”

Regarding that letter, or “written opinion” as the Act describes it, Wynne stated Wednesday that “I don’t have the letter in front of me, but I believe such a letter exists. I signed a letter at the meeting.”

Wynne could not be reached Thursday for comment, nor could a copy of the signed letter be obtained from the city clerk’s office, which was closed Nov. 11 for the Veteran’s Day holiday.

The current council took office in November 2008. Mixon has been vocal in his commitment to follow the statutory law regarding how Fairhope’s city government should be run, often reading from the law at council and committee meetings.

“Of course whatever the law says we’ll do, we’re going to do that,” Mixon said this week, regarding the legal procedures for convening executive sessions. “If it’s determined that that’s what we need to do, we will certainly do it that way.”

The current Alabama Open Meetings Act was revised substantially in 2005 and sets out in detail the procedures for calling executive sessions. Three of the council members terms predate that revision, and of the two most recent members elected in 2008, one is an Alabama attorney and the other a federal trustee in bankruptcy.

“We have been noticing that the Fairhope City Council is teetering on the edge of transparency,” Paulette Fedor, president of the League of Women Voters, Baldwin County, stated this week.