Discussion of Freedom of Information Act (FOIA) violations that took place earlier this month was bandied about at Monday’s city council meeting, as the public has the right to know when discussion is made by aldermen and commissioners – not just face-to-face, but in group emails. A packet given to council at the beginning of the meeting printed a list of emails itemizing conversations that took place electronically with aldermen, Planning commissioners, city staff and various citizens regarding Planning’s request for residence affidavits for the B&Bs.
Alderman Bob Thomas said he had been contacted by three citizens asking for clarification on the legality or necessity for completing and returning the residency form sent out by the Planning Commission. He responded that he didn’t know but would ask City Attorney Tim Weaver and get back to them.
After discussion with Weaver on April 2, Thomas sent an email to the three citizens stating, “According to Tim Weaver, there is no requirement in City Code for you to sign and return this form. Neither of us is advising you to sign or not to sign it. He is simply saying that it is not a requirement in code and there are not enforcement provisions for anyone who fails to return it.”
One of the three citizens forwarded this email to a large group including alderman Mickey Schneider, who hit Reply All, writing, “Thanks for the info, Bob!!” Schneider openly apologized during the meeting for the Reply All infraction, but the issue was not dropped.
Alderman Susan Harman composed an email the evening of April 2 addressed to six aldermen, five Planning commissioners, the Mayor, the City Attorney and others giving her opinion of Thomas’s actions saying, “Not only does it open us up to a potential class action suit at a state level by those B&B owners who fear there may be favoritism/discrepancies on how the ordinance is or is not enforced, but also to the fact that a city council member has spoken on behalf of the city attorney.”
Harman wrote that in her opinion, “Planning has the authority to request updated information on basic requirements, i.e., and verification that an owner or resident manager shall occupy the B&B premises at all times. It seems strange to me that a member of city council would want to undermine the Planning Commission from doing their job. Why create code at all? Why give the illusion of enforcing code if we have no intention of doing so? Why have any commissions if a city council member is allowed to tell citizens what they can and can’t do, overriding the authority of the Planning Commission and without a vote of all city council members?”
On April 3, Schneider hit Reply All again, “Sorry Susan, BUT Planning does NOT have the right, at a whim, to add or request anything, much less additional expenditures, to these people. They have to set guidelines and rules just like any other commission/board, etc. If they want this additional info, then they have to, in a proper and timely fashion, add it to their guidelines & requirements, & it would NOT go into effect until the next application period.”
At this point, Thomas sent an email to the mayor requesting him to convey to the other council members his desire not to be included on any future emails regarding issues that might possibly come before council for a vote.
After one more Reply All by Planning commissioner Tom Buford, “Thank you once again for reviewing the rules regarding CUPs to those concerned,” City Clerk Ann Armstrong finally got the emails to stop requesting that all involved “give some thought to open meetings rules.”
The mayor reminded everyone involved, “that any group email could be a violation of FOIA.”
In final comments, and only after the group emails had been made public, was Thomas able to make a very clear rebuttal to Harman’s criticism of him seeking the attorney’s opinion. Thomas stated he is authorized by City Code to seek out a legal opinion in response to questions asked by local citizens. The following is Thomas’s public reply to Harman’s private group email:
Harman: Not only does it open us up to a potential class action suit at a state level by those B&B owners who fear there may be favoritism/discrepancies on how the ordinance is or is not enforced
Thomas: Are you suggesting that I should have kept the attorney’s opinion secret? The city should avoid class action suits by operating without favoritism/discrepancies not by withholding information. If the city is at risk, Planning put it there. Not me.
Harman: But also to the fact that a city council member has spoken on behalf of the city attorney.
Thomas: I met personally with the city attorney to gather information on behalf of three constituents. I relayed to the three people what I had learned from the city attorney. Relaying information from a source and speaking for that source are two totally different things.
Harman: In my opinion… Planning has the authority to request updated information on basic requirements, i.e., verification that an owner or resident manager shall occupy the premises at all times.
Thomas: The city attorney’s opinion, based upon his legal training and his lengthy experience as the city’s attorney, is in conflict with yours. I assume that the Planning Commission sought out the city attorney’s opinion before sending out the notice so the information in my email was not new to them.
Harman: It seems strange to me that a member of city council would want to undermine the Planning Commission from doing their job.
Thomas: Would the Planning Commission prefer that local citizens not be informed as to the city attorney’s opinion on what is and what is not in local code? If I had kept the attorney’s opinion to myself, would you have considered that to be supporting the Planning Commission? I resent your assuming that I wanted to undermine the Planning Commission.
Harman: Why create code at all?
Thomas: Code exists to provide structure and guidelines for citizens and for government. Neither the citizens, nor the government, nor any individual(s) working for the government has a right to ignore, overrule, or personally interpret code.
Harman: Why give the illusion of enforcing code, if we have no intention of doing so?
Thomas: If the city attorney declares that an action does not exist in code, then taking that action is not enforcing code.
Harman: Why have any commissions if a city council member is allowing to tell citizens what they can and can’t do…
Thomas: What is there about “Neither of us [Weaver or Thomas] is advising you to sign or not to sign it” that Ms. Harman does not understand?
Harman: Overriding the authority of the Planning Commission…
Thomas: According to the city attorney, the Planning Commission does not have the authority to make the affidavit a part of the requirement for CUPs. Bob Thomas did not override anything or anybody, he merely passed along the opinion of the City Attorney. The forms are still out in the community and as far as I know the Planning Commission is still waiting for them to be returned.
Harman: And without a vote of all city council members?
Thomas: Bob Thomas sought out information on behalf of constituents, Bob Thomas is authorized by city code to contact the city attorney and did so, Bob Thomas relayed that opinion to his constituents. None of the above requires a vote of city council.
In conclusion of the hour-long meeting, alderman Terry McClung requested that the Norris Street property be placed on the next agenda for discussion, Schneider asked for volunteers to clean gravestones in the cemetery, and Thomas said, “I’d like to thank Jay Wilks for the wonderful Diversity Weekend that we had – it was one of the best that we ever had.”
The next regular council meeting is scheduled for April 22 at 6 p.m. in the Auditorium.