Fairhope council seeks legal options on Oct. 2 referendum

Injunction could be sought to delay change of government vote


After recent action taken by the Fairhope City Council in a special called meeting, the timing of the upcoming Oct. 2 vote to possibly change the city’s form of government could possibly be postponed.

The council voted unanimously to look at its legal options that would likely lead to the filing of an injunction in circuit court that could delay the Oct. 2 referendum, a move the council members said was necessary in order to get clarification on what exactly Fairhope residents might be voting on in the election.

What was at issue is whether the upcoming election also mandates a move from at-large representation for the city’s council members of if districts would have to be created, and, if districts are to be created, what the process for creating those districts would be.

The city council voted in August to ask for an attorney general’s opinion regarding that question, and a preliminary opinion from the attorney general received Sept. 18 said that voting for the change in government would also mandate the city move to the district form of representation. Under the district form, the mayor and one council member would be elected at-large, while the three other council seats would be elected from to-be-established districts.

That attorney general’s preliminary opinion seemed at odds with the original petition submitted by Fresh Start Fairhope and signed by over 800 citizens, which called for at-large representation to continue for the city’s council seats.

Councilman Jay Robinson said because of the lack of clarity and information about what exactly the citizens of Fairhope would be voting on in the Oct. 2 election, the council felt it had to take action by seeking an injunction.

“We are asking the court to, No. 1, make sure the petition as written can move forward because of the ruling we now believe is correct that it has to be districts, because that wasn’t proposed in the petition,” Robinson said. “And, No. 2, make sure there is time.”

Robinson said he felt there could be voters who have already submitted absentee ballots that supported at-large representation that could have submitted a vote against their wishes for how the city should be run.

“In my opinion, if one ballot is cast based on that wrong information, that’s unfair,” Robinson said. “We didn’t know what was going on because the law was unclear, and there was uncertainty in the election process.”

Robinson denied that the council’s actions to seek legal injunction were a sort of opposition to the proposed change in government.

“Any idea that any decision made is to upset, delay or kill any side to this is misguided,” Robinson said. “We can’t kill it. We can’t delay it. All we can do is present the courts the facts and we want to make sure this election is done correctly and fairly. it’s that simple.”

Council President Jack Burrell said he didn’t feel like residents wanted to vote for something without being aware of what it was they were voting for or against.

“If you go and vote for it now, I do not know if it’s going to be at large,” Burrell said. “I don’t know if it’s going to be for districts. This is why we’re voting to go to the courts, to try to get some clarity and understanding.”

Citizen reaction during meeting

During the special called meeting, residents appeared split on whether the council should try to take action through the court system.

Former Fairhope City Council President and Fresh Start Fairhope member Bob Gentle accused the council of “playing gotcha politics two weeks out” from the vote.

“We’re a little late in the game to be asking questions,” Gentle said. “It’s bothersome to me. 800-plus people want to know what’s going on, and I think that you owe them that.”

Gentle questioned why the council had not approached Fresh Start Fairhope with the questions it had, with Burrell replying that the council had tried not to get involved with the now hot-button political issue.

“The council has been silent because we haven’t tried to sway this in any way,” Burrell said. “That was my intent, at least. I tried to stay out of everyone’s way and not push it one way or the other.”

Resident John Manelos, who said he supports the change in government, said he had studied the law governing the potential change for weeks and said he also felt there was a lack of clarity on what exactly residents would be voting on.

“The Fresh Start Fairhope movement created a petition that uses the old law,” Manelos said. “We appear to have combined the old law with the new law that says we’re not going to address the district thing. That’s where the confusion is. It does need a court opinion or a ruling by the attorney general on this. I urge you to learn what the confusion is before you form an opinion that these folks are biased against it.”

Fresh Start Fairhope spokesman Chuck Zunk also questioned the timing of the council’s actions and pushed for the city to move forward with the vote.

“If the attorney general says you have to have the election, why aren’t you going to do what the attorney general says and publish the fact that if you vote for the referendum then there will be district representation?” Zunk asked. “You’ve known the exact ballot language and date for over 10 weeks and yet you waited until now, two weeks before the election, to seek legal advice, which we assume is going to circuit court to try to stop the election. I think you’re totally disrespecting those people who have the right to have an election Oct. 2. We’ve followed the law. We want to know why you’re trying to get around it.”

Zunk said Fresh Start Fairhope has tried to get out as much information as possible to the voters, including using emails, a website, social media and an upcoming mailer.

“You’ve chosen to stand mute,” Zunk said to the council. “You’ve chosen not to organize any kind of session where people can come and learn about this. Don’t use your inaction as an excuse to claim there is a lack of transparency and information to have an election Oct. 2.”

Robinson responded.

“I don’t believe it was a lack of transparency on the part of Fresh Start Fairhope,” Robinson said. “You gave your your interpretation. I think the issue here is that there was a misinterpretation of information. There are already ballots that have been cast by absentee vote that think they are voting for one thing and they’re actually voting for another. If there is one person robbed of their vote, I think that’s a mistake.”

Robinson added that he felt Fresh Start Fairhope’s push to move forward with the vote on Oct. 2 was not the best cause of action.

“What is a delay in the vote if it means everyone has the right information?” Robinson said. “I get wanting to go on Oct. 2 because you think that’s the best chance to get it passed, but that’s not part of my decision and it shouldn’t be. My job is to make sure that the 7,000 that voted in the last election have all the information they need, not just to favor one side or the other.”

Burrell agreed.

“We’re not voting to stop the election,” Burrell said. “We’re voting to stay the election. We simply want the facts. We didn’t hold debates because we wanted to stay out of the process of the petition. Why would we have debates over this if people don’t have the right information. You don’t go debating when you don’t have the facts.”

The council voted unanimously to seek legal options for a possible court filing.

Post-meeting reaction

In an email to Fresh Start Fairhope supporters following the meeting, Zunk said the group was preparing to move forward with their actions as if the vote would still take place on Oct. 2.

Zunk said the legal option being pursued by the city had raised even more questions.

“The next step is up to the City, to complete its legal research and prepare a brief and plea to the Circuit Court for an order to stay the October 2nd Referendum,” Zunk wrote. “Fresh Start Fairhope will then have the option to submit its own arguments to the Court opposing the City's request. The outcome of this legal process is unpredictable. For example, will the Court even hear the case? If so, when? What remedy if any will the Court provide? If a stay is granted, how long will it be in place? If there is a stay, under what circumstances can the stay be removed?  And so forth and so on.”

In an interview with WABF Radio on Sept. 24, Councilman Robinson reiterated the council did not want to call off the vote.

“I don’t want to call it off,” Robinson said. “I want the public to have the right to vote on this issue, but I want them to have the information they need when they go to vote.”

Robinson said because of the ambiguities in the new law, Fairhope would likely be a test case for how the law might work.

“Fairhope is the guinea pig in this scenario,” Robinson said. “There is a lot of unknowns and a lot of uncertainty, and I think that adds to the confusion as to what exactly everyone is voting on.”