Four Fairhope city councilors effectively undermined the intent of more than 1,000 residents last night by voting at a special-called meeting to file an injunction that could delay or even nullify an Oct. 2 referendum on a new form of government.
The council claims it received a preliminary opinion from Alabama Attorney General Steve Marshall’s office advising the election — written plainly to establish a council-manager form of government — would also require the council to be elected by districts.
Fairhope’s five-member council is currently elected at-large. If the council-manager form of government was adopted according to law and districts were established, one or more of the current councilors could be disqualified in the 2020 election.
At the meeting, the council would not heed calls for more details about the preliminary opinion or publicly release the opinion itself, but argued ambiguity in the ballot language would disenfranchise voters who already cast absentee ballots made available on Aug. 29. Further, they suggested many voters going to polls Oct. 2 aren’t aware of what they are voting on.
Councilman Jay Robinson opened the meeting by giving a brief history of the enabling legislation passed earlier this year and the subsequent effort by two competing petitions to call for the special election. The election was called in early July, after Baldwin County Probate Judge Tim Russell certified a petition from more than 800 Fairhope voters organized by the grassroots group Fresh Start Fairhope.
In messages to supporters throughout the summer, Fresh Start Fairhope was unclear about whether or not the referendum would establish districts, disclosing it also sought an opinion from the attorney general. A competing petition mandating districts was promoted by Mayor Karin Wilson, but ultimately only garnered around 200 signatories. Both petitions sought the council-manager form of government.
“We got a legal opinion yesterday that we asked for months ago,” Robinson explained. “And the preliminary legal opinion is if [the referendum] passes, there has to be districts. So there are absentee ballots … where those people think that the voting is at large. My job is to make sure any election we have in Fairhope is fair, objective and easily understood … Up until yesterday, I was under the assumption the vote on Oct. 2 was just a change of government and we would decide later what that means.”
Council President Jack Burrell acknowledged the special-called meeting was advertised Monday at 5 p.m., before the opinion was allegedly received, but admitted the council would have sought the injunction regardless.
“We sought an opinion from the attorney general to give us clarity on what people are voting on, and I have not seen that clarity,” Burrell said. “There has not been any backdoor deals done, we’re not trying to stop an election, we’re not trying to put an end to it … I think we are being completely transparent as we can be.”
Robinson called it a “bizarre situation,” saying the injunction will ask the Baldwin County Circuit Court to determine whether the petition and election are valid. The motion passed unanimously, Councilman Jimmy Conyers was absent.
“We can’t kill it, we can’t delay it, all we can ask the court to do is present the facts and make sure it was done correctly and fairly,” he said.
The small crowd at the Fairhope Civic Center had mixed reactions, some suspicious about the council’s 11th-hour legal action and others comfortable with a delay until the courts could clarify the situation.
Former city council member and representative of Fresh Start Fairhope Bob Gentle noted Russell, the county’s chief election official, had already certified the petition as “valid.” Fresh Start Fairhope spokesperson Chuck Zunk (pictured above) admitted there was some confusion, but accused the council of “cherry picking” outdated information to seek its injunction.
“If the attorney general says if you have an election then there will be districts, why aren’t you going to do what the AG says and say, ‘if you have the referendum to vote, you will be voting for districts?’” Zunk asked the council. “If you add the two petitions together there are over 1,000 people who said they want to change the form of government and you are totally disrespecting those people … We followed the law, we want to know why you are trying to get around it.”
Councilman Robert Brown cited Fresh Start Fairhope’s own communications, which at one point indicated the referendum would maintain the at-large structure of the council.
“None of this takes place until the 2020 election,” Brown noted. “So if anybody is trying to ramrod anything through to happen here in a few weeks when somebody calls me … and I can’t give them a clear answer, I’m not in favor of pushing it through.”
Still others, such as resident Jerry Bergman, said they were in opposition of a council-manager form of government. Bergman suggested the majority of Fairhope voters are ignorant of the issue and the election date.
“I think if we don’t delay, you’re going to be shortchanging a lot of Fairhope residents,” Bergman said. “They are not going to vote … I sincerely feel we need time to get the people informed.”
The council initially sought the attorney general’s opinion Aug. 13, specifically asking two questions.
First, “Does the petition process contained in the Council-Manager Act of 1982, as amended by Act 2018-569, permit the adoption of the council-manager form of government by petition to consist of council members elected at large as the Legislature provided for in Section 11-43A-1.1[?] … or does the petition process only to provide, pursuant to Section 11- 43A-8(a) for election of councilmembers in single member districts?”
Secondly, “If petitions submitted after adoption of Act 2018-569 do not specify whether council members will be elected at large or in single member districts are the petitions legally valid and due to be counted? If they are valid and due to be counted, how are councilmembers to be elected and when and how will that determination be made by the municipality?”
Resident John Minelos said he had been studying the referendum and its guiding legislation “for weeks,” concluding the petition fused the old and new laws.
“Under the old law, it clearly states you have to have a three district option,” he said. “The amended law allows for another provision, but it doesn’t take away the old provision. By resolution of the council you have the option by your own vote to decide to go to the manager form and if you do, you have the option to go to districts or at-large.”
At Wednesday night’s special meeting, the council did not elaborate on which of those questions the attorney general satisfactorily answered. Robinson, an attorney at Frazer, Greene, Upchurch and Baker, LLC, said the preliminary opinion would likely be taken under consideration by the court.
“Injunctions require immediate action of the court,” he said. “What I envision happening is we get some stay and it goes on the ballot 60 to 90 days from when we get an answer from the court.”
As of noon Thursday, the injunction had yet to be filed. Mike Lewis with the Alabama Attorney General’s Office said preliminary opinions are considered draft documents and are not covered under the Alabama’s open records law.
On Wednesday, Violetta Smith, elections coordinator at the Baldwin County Probate Court, said 33 absentee ballots had been cast for the referendum. Fairhope City Clerk Lisa Hanks clarified Friday that to date, 41 ballots had either been mailed in or filled out at her office.