Gov. Kay Ivey's order waives portions of the Open Meetings Act by allowing teleconferenced meetings, but only for COVID-19-related business and as "necessary to perform essential minimum functions of the governmental body."
Councilmen Charles Kirby and Billy Jackson have objected that many teleconference votes have not been on essential issues, and Kirby argues that an in-person quorum of three people at the meetings meant the governor's order did not apply.
The public can attend, but they have not been at meetings. They can watch on YouTube, which has a 30-second delay, and email or call in comments to the city clerk.
Rather than seek a formal Attorney General's opinion on the continued applicability of the governor's March 18 order, City Attorney Herman Marks reported to the council in an email last week that, in order to expedite a response, Police Chief Nate Allen called a contact in the Alabama Attorney General’s Office and got an unofficial opinion on the use of electronic meetings during the pandemic.
“The answer came back that the use of remote electronic meetings, under the guidelines established in the governor’s proclamation originally, remain(s) in effect,” Marks wrote in the email.
Council members Chuck Ard and Kristi Hill have been calling in to participate through teleconference, although Ard attended the last two meetings at City Hall, since Ivey declared a state of emergency on March 13.
A quorum of Council President Paige Bibbee, Jackson and Kirby attended every meeting in person except one since the state of emergency was declared. Jackson called in by teleconference for one meeting.
The debate is over whether the teleconference meetings violate the state’s Open Meetings Act since Ivey’s order says the council can hold teleconference meetings as long as it conducts only “business essential to the response to COVID-19,” or “business essential to the minimum function" of the council.
In an email to Marks, Allen and the council Saturday, Kirby wrote that Allen didn’t give the attorney general contact “important details” to give that person a true picture of how the meetings are being conducted and he made a series of allegations against the council majority.
After the first meeting in which the council voted on whether each item was essential to the minimum function of its business, the council has voted on whether each agenda as a whole meets that standard.
Only one item has been rejected in five meetings, which Kirby wrote “exposes how this is manipulated.”
Kirby and Jackson voted against declaring many of the items as essential business resolutions and began in April abstaining on items they think aren’t essential.
Kirby wrote that the council majority’s actions are “very hypocritical and certainly violate the spirit of the sunshine law.” He also points out that “the technology and acoustics are not good and communication is limited” at City Hall.
Bibbee said Monday that Kirby’s opinion does not control what is considered essential.
“That’s fine, it’s his opinion, but the council majority thought it (agenda items) was essential business,” Bibbee said. “You’re not going to get an AG’s opinion on that issue.”
Quorum gathers
Kirby accuses the council majority of Bibbee, Ard and Hill of using the teleconference to remain in control of the agenda even though a quorum in attendance makes the need for a teleconference unnecessary.
“We had a quorum at each meeting; it just wasn’t the majority control that the majority wanted. No electronic vote was necessary because a quorum was present,” Kirby wrote.
Kirby said some of the same council members traveled out of town or went to work, putting themselves at the same risk of exposure as if they had attended a council meeting.
Ard said Tuesday that Kirby’s insinuation “that there’s a conspiracy is just ridiculous. If you look back over the last four years, the 3-2 votes didn’t just start. They’ve been going on for a while.”
Bibbee said Monday the council “is just trying to get things done to keep the business of the city moving forward.
“I think Charles wanted an AG’s opinion that matches his own that we shouldn’t vote on certain things and that’s not what an AG’s opinion is,” Bibbee said. “An AG’s opinion is about legality or legal issues. The AG doesn’t give a personal opinion.”
Ard said he voted against declaring one item essential business but he’s beginning to think the coronavirus pandemic may be around for a while.
“I’m beginning to think all city business is essential,” Ard said. “And I would probably vote for that one item now as essential if it’s brought back up.”
Jackson said Kirby “probably has very valid points” in the complaints he voiced in the emails.
Jackson supported Kirby by saying, “The law is clear, minimally essential functions should go to the health and safety of the residents. I do understand there are grants that are time sensitive and may be an opportunity to get money for the city.”
Jackson pointed out that the governing bodies of neighboring cities and counties aren’t holding electronic meetings.
The Athens, Hartselle and Madison city councils and the Morgan County Commission continue to meet with members present, officials from those entities told The Daily on Tuesday. The members sit at least 6 feet apart to meet social distancing requirements. Meetings can be viewed by the public over the internet through streaming services like YouTube.
The Decatur school board and Decatur Industrial Development Board have held virtual meetings with members in different locations.
Pregnancy concern
Bibbee said she could have legally convened the City Council meeting from home if she really wanted to do as Kirby accuses her of doing, “but I didn’t even think about doing that. We are just trying to hold meetings that are safe and protect everyone.”
Bibbee said she takes offense that Kirby would insist that Hill, who is in the third trimester of her pregnancy, must attend a council meeting while the city is under a state of emergency because of COVID-19. Hill could not be reached for comment.
“That bothers me morally as a person and a woman who has had children before,” Bibbee said. “If the governor is going to put something in place to protect us, why in the world would he want her to be here when they don’t know much about how this virus affects unborn children? I believe that’s what the governor was allowing us to do.”
Ard is the council member Kirby didn’t mention by name who is working at his seafood store but then participated in the council meeting via teleconference.
“To me, they’re two different things,” Bibbee said. “That work is his family’s livelihood. I don’t know Mr. Ard’s policy (regarding coronavirus protection) at work.”
Ard said it’s impossible for him to work from home and avoid exposure to the public at his restaurant, “but I’m able to stay safely at home and still serve the people. Why would I put myself in a circumstance that I did not have to be in. I just think it’s his (Kirby’s) typical cheap shot that he’s made over the last many years.”
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