FAIRHOPE, Ala.—Conversations by City Council members during an executive session to discuss the purchase of real property for a small park in downtown Fairhope may have violated the state Open Meetings Act, according to the general counsel of the Alabama Press Association.

“If they discussed among themselves the merits of the offer in executive session then they ‘deliberated’ in violation of the act,” said Dennis Bailey, general counsel of the Alabama Press Association. 

“’Deliberation’ is a defined term of the open meetings act, and deliberations cannot take place in executive sessions.”

The council met in executive session at the end of Monday’s council meeting to discuss an offer by Lydia Myers to sell the courtyard property at the northeast corner of Fairhope Avenue and Section Street.

“We have decided not to reply to the offer at this time,” said Council President Debbie Quinn, after the council reconvened in open session following the executive session. “Our funds are too tight.”

After Quinn made that statement, Councilman Rick Kingrea said, “I’d like to say we didn’t deliberate,” referring to what transpired during the executive session.

Quinn then said, “We reached a consensus,” referring to what occurred in the executive session.

Discussion of offers to purchase real property are permitted during an executive session as one of nine exceptions to state law requiring that “the deliberative process of governmental policies … be open to the public.”

However, while state law allows discussion during executive sessions, it prohibits “deliberation,” defined as “an exchange of information or ideas among a quorum of members in a governmental body intended to arrive at or influence a decision as to how the members of the governmental body should vote on a specific matter that, at the time of the exchange, the participating members expect to come before the body immediately following the discussion or at a later time.”

Kingrea said Friday that he did not realize the definition of “deliberation” in the Open Meetings act was so far-reaching, and that he was speaking of his personal understanding of what deliberation meant when he made his statement.

“I’m a little surprised that the definition is as broad as it is,” Kingrea said.

Before a vote was taken about purchasing the property, Myers stood up and spoke up from the back of council chambers where she had been sitting.

“I think in the past that council has made a lot of decisions in private,” she said. “I think they should be made in the open.”

She also said the current offer was less than the price offered about two years ago when it was also rejected by the council.

Quinn told Myers that the funds were tight and the city could not afford the purchase.

During that discussion, Councilman Lonnie Mixon said,  “We rejected this offer and that’s the end of it.”

Although a motion was pending to reject the offer, no vote on the question had been taken at that time.

Kingrea then said, “I’m wondering are we going to let her speak.”

Quinn then invited Myers to the podium, who said the city refused to approve her site plan to develop the property several years ago and also provided more background on the city’s rejection of her offer to sell the property two years ago.

After that discussion, the council voted unanimously to reject the offer.

The statute provides nine instances for when government bodies in Alabama can meet privately in executive session. Those instances include discussing pending litigation matters and, as during the recent council meeting, “to discuss the consideration the governmental body is willing to offer or accept with considering the purchase, sale, exchange, lease, or market value of real property. Provided, however, that the material terms of any contract … shall be disclosed in public portion of a meeting prior to the execution of the contract.”

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

Bailey said in a September Courier story 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.

“They should have said they were uncomfortable, and they shouldn’t be conducting deliberations in an executive session,” said Bailey in the earlier story, regarding a council member’s proper course of action under the Open Meetings Law once the council began “deliberations” as defined by the statute.

He 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.”

After Monday’s meeting, Myers said she spoke up at that meeting because of the way in which the decision was reached by the council.

“It really had to do with the whole process,” Myers said. “They talk about transparency, but that’s not the way it was handled that night.”

Quinn said Friday that council members did reach a consensus during the executive session about what action to take during the public part of the council meeting when they reconvened, even though council members might not have explicitly stated their positions.

“You can see where things are heading,” she said. “We had our attorney in the room and he never said we were stepping outside the bounds (of the law).”

Kingrea said Friday that during Monday’s executive session each of the council members spoke about the offer.

“I think there was more of a consensus than a deliberation,” said Kingrea, who is an attorney serving his first term on the council, adding again that he was not familiar with the statute’s actual definition of “deliberation.” “Obviously, we need to make sure we are in compliance with the law.”