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Decatur city officials say private meetings of nonprofit managing Legacy Park were legal

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Decatur city officials say private meetings of nonprofit managing Legacy Park were legal

Legacy Park on S. Columbia Drive in the city of Decatur on August 12, 2020. The park occupies the former site of the United Methodist Children’s Home. Photo by Dean Hesse.
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This story has been updated.

Decatur, GA — The Decatur City Commission in December approved a plan to turn management of the Legacy Park to the Decatur Legacy Project, a nonprofit board whose members are mostly city officials or their appointees.

Legacy Park is the 77-acre former United Methodist Children’s Home property that the city bought in 2017. The Decatur Legacy Project will manage the day-to-day operations of the park and, under the terms of an operational management agreement approved by the City Commission last month, implement the city’s master plan for the property.

Since that time, the Legacy Project Board has been meeting. The exact number of meetings isn’t known and the public wasn’t notified about them. No minutes can be found on the Legacy Decatur website. The board will hold its first official public meeting on Thursday, even though – according to the city attorney and city manager – that’s not required under the law. That meeting was announced after Decaturish began making inquiries into whether the board could legally hold private meetings under the Open Meetings Act.

Under the state Open Meetings Act, boards considered part of the city of Decatur – like the Planning Commission – are open to the public. Even though the Legacy Project Board’s members are mostly appointed by the City Commission, City Attorney Bryan Downs says that the board’s meetings won’t be required to be open to the public until it officially receives funding from the city.

Downs, it should be noted, says he is not acting as an attorney for the Decatur Legacy Project but City Manager Andrea Arnold, who serves on the nonprofit’s board as secretary, referred questions from Decaturish about whether the board was subject to the Open Meetings Act to Downs.

“It is my understanding that rather than waiting until it actually receives those funds (i.e., after October 1), the [Decatur Legacy Project] Board is voluntarily following the requirements of the Open Meetings Act starting with its September meeting,” Downs said. “From my perspective, this fulfills the spirit of the Open Meetings Act because the board is beginning to take preliminary steps in anticipation of the Operational Management Agreement that will go into effect as of Oct. 1.”

Open meetings experts consider the matter of whether the board is currently bound by the state open meetings law a legal gray area due to the novel structure of the board. The makeup of this particular board is not contemplated in the wording of the Open Meetings Act. One First Amendment attorney interviewed for this story agreed that if the board was sued over any actions it took in previous private meetings and a court determined it was subject to the Open Meetings Act, any actions the board took in those meetings would be invalidated.

In an email exchange, Downs pushed back hard when Decaturish suggested that the board’s prior meetings could have violated the state’s open meetings law, calling those concerns “unfounded and reckless.”

“I would certainly hope you would not publish such statements, which I now know have very little substantive basis, without at least a competing opinion from an attorney or expert on the Open Meetings Act confirming your legal theory,” Downs said.

First Amendment Attorney Sarah Brewerton-Palmer — who is not sure if the Legacy Project Board would be subject to the Open Meetings Act before it receives funding from the city — said if the board lost a legal challenge over its private actions, it could have far-reaching consequences.

“You could sue to void those actions,” she said. “If a court found those prior meetings were in violation of the OMA, then the actions taken at them are subject to being revoked or invalidated under the open meetings act.”

What she did not know, and what the law is not clear about, is whether the Legacy Project Board would’ve been subject to the open meetings law before it received city funds.

“It’s a pretty unusual setup, so it just wasn’t contemplated really,” she said.

But she agreed that moving forward, it would be in the board’s best interest to have public meetings and invite public participation in them.

“Putting aside the legal technicalities, the purpose of the Open Meetings Act is to ensure that government business is handled in the open and that the public has a chance to scrutinize and participate in the governmental process,” she said. “A board that is made up of city officials and manages city-owned property should be conducting their business publicly. Whether or not their past actions technically violate the Act, the best practice moving forward is to open up their meetings for public scrutiny.”

Under Fire

There are critics of the city’s plans for Legacy Park. The city has come under fire from some residents about plans to develop housing — much of it affordable – on the property. Despite lengthy discussions during public comments at two recent City Commission meetings, commissioners declined to revisit those plans. In full disclosure, Decaturish published an editorial voicing support for affordable housing at Legacy Park.

Members of the opposition group, Legacy Park Voice, have claimed that the plans for Legacy Park weren’t adopted in a transparent way, a claim that is not supported by the evidence showing that they were adopted in public meetings after community input. But their criticism is a reminder of the scrutiny the Legacy Park redevelopment project will receive as it moves forward.

William Perry, founder of advocacy group Georgia Ethics Watchdogs, said the setup of the Legacy Project Board reminded him of the setup of Invest Atlanta, which is the city of Atlanta’s development arm.

That setup has not been without controversy, he said.

“That has always been considered a public entity, and in fact Invest Atlanta — when we went through the stadium funding stuff — they had always proactively said they were part of the city and subject to all that, then tried to reverse it,” Perry said. “There’s actually a court ruling that says you are considered a government agency [if you get more than 30 percent of your funding from a government agency.]”

The Open Meetings Act says that “any nonprofit to which there is a direct allocation of tax funds made by the governing body of any agency as defined in this paragraph which constitutes more than 33 1/3 percent of the funds from all sources of such organization” is required to hold open meetings.

The Legacy Project Board hasn’t yet received this funding, which City Manager Arnold called an “administrative cost payment.”

“The agreement between the two parties is effective October 1,” Arnold said. “Any time after that, Legacy Decatur may request a portion of the administrative cost payment. I do not know when that request will occur.”

She contends that Legacy Project Board would only be subject to the Open Meetings Act when it receives the money. But the Legacy Project Board apparently had second thoughts about this position and decided to open up its meetings once Decaturish began making inquiries.

Perry said that public meetings are in the best interest of the Legacy Project Board and the public. He said the board scheduling a public meeting is conceding the point that these meetings should’ve been public all along.

“If they’re going to take the attitude we don’t have to do this, but we are, then I think they should also release minutes from previous meetings,” Perry said. “There’s the right way to do things and there’s the Georgia law way to do things and a lot of times the law isn’t on the side of citizens. In the court of public interest, it’s always in the interest of public officials to fault on the side of full transparency.”

How the Legacy Project Board is appointed 

Arnold first received questions about this topic on Sept. 2. Downs’ answers about the legal nature of the board arrived today, Sept. 22. One of the questions that was never clearly addressed until today was how the board members are appointed.

“It’s my understanding that three members of the [Decatur Legacy Project] serve by virtue of their position with the City (the mayor, Mayor Pro Tem and City Manager), that one member is appointed by the City Manager, and that seven members are appointed by the City Commission,” Downs said.

Downs noted that the way the members are appointed isn’t relevant in determining whether the Legacy Project Board is actually subject to the Open Meetings Act.

“Boards and commissions that are created by the City Commission or by law and that serve the city usually constitute ‘agencies’ under the Open Meetings Act, but not simply because the members are appointed by the City Commission,” Downs said. “They are ‘agencies’ because they meet the statutory definition (‘department, agency, board, bureau, office, commission, authority, or similar body of [the City of Decatur]’).”

Downs put the word “of” in bold and underlined it in his email, indicating that that is the essential difference between the Legacy Project Board and another board like the Planning Commission.

 

While the board may not meet that strict legal definition in Downs interpretation, there is no question Legacy Project nonprofit was created by city officials to handle city business. The Legacy Project organization has been around since 2014, well before the city acquired Legacy Park and the original incorporator was former assistant city manager Lyn Menne.

The nonprofit board’s purpose was always to act on behalf of the city.

“Our original idea behind it was to have a vehicle for a committee of citizens to plan the 200th birthday celebration for the city of Decatur in 2023,” Menne said.

More recently, the board raised funds for a small business loan program to help Decatur businesses affected by the COVID-19 pandemic.

The current board is made up of mostly current or former city officials.

The Legacy Project board members are:

– City Manager Andrea Arnold

– Mark Arnold (no relation to Andrea), a community member with a record of civic service

– Ed Bowen, a local attorney with expertise in affordable housing

– Mark Ethun, who previously worked as the city’s building official

– Mayor Patti Garrett,

– Allen Mast, a local attorney with expertise in private foundations

– Former city manager Peggy Merriss

– Paul Mitchell, former chair of the MLK service project

– Mayor Pro Tem Tony Powers

– Brian Smith, a former city commissioner

– Meredith Struby, chair of the Decatur Public Facilities Authority

Board members interviewed for this story confirmed the board has been meeting privately, though the details of those meetings were not available.

Powers, who chairs the Legacy Project Board, said the board hadn’t had a meeting in as long as six weeks. He said the board has “nothing to hide” and said he personally wouldn’t attach his name to anything he thought would “put my reputation on the line.”

“I anticipate going forward all meetings will be held publicly,” he said prior to the board announcing its first public meeting.

There will be other questions to sort through as the board moves forward.

Will board members need to file conflict of interest forms disclosing any potential financial ties that could affect their decision-making? Powers said yes, but those documents couldn’t be located on the Legacy Board’s website. Will the board hire an executive director and what will that process look like? Arnold said the board is developing a job description for an executive director and that the hiring process should begin this fall. And will the board be subject to the Open Records Act in the way city of Decatur boards are subject to it?

Downs, the city’s attorney who isn’t the Legacy Project Board’s attorney, wasn’t ready to tackle that one.

“I took a close look at the open meetings issue today and provided my thoughts as city attorney,” Downs said. “I may do the same for the Open Records Act questions you raise, which involve a somewhat different analysis.”

The Sept. 24 meeting of the Decatur Legacy Project Board starts at 5:30 p.m. following a closed executive session. Due to the COVID-19 pandemic, it will be held virtually. For details on how to attend, click here. To register for the meeting via zoom, click here.

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