An outside attorney retained by Fairhope Mayor Karin Wilson has threatened legal action against the city council and City Attorney Marion “Tut” Wynne if a written settlement can not be reached regarding numerous allegations made by Wilson of unlawful intrusions into the mayor’s powers of running day-today operations of the city.
The adequacy of city legal representation for the mayor of Fairhope is being called into question by Wilson in a letter sent late last week to Wynne and members of the city council.
Gulf Coast Media has obtained a copy of the letter that Harry Satterwhite, of Satterwhite and Associates, sent on June 9 addressing a number of issues currently before the council and city, including items up for executive session at the June 12 meeting and grievances Wilson has with Wynne.
The letter also threatens legal action against the council if they do not vote to raise the $2,500 maximum cap paid for with city funds for professional services under which Satterwhite was retained.
Claims there is no need for executive sessions
Satterwhite takes issue with two different items slated for non-public executive session: discussing litigation against the city and the lease of the marina property.
Satterwhite wrote that there was no need for secret discussions on either one of the issues.
“With regard to the possible litigation concerning Sherry Sullivan, Jennifer Fidler and Pandora Heathcoe, these are all frivolous claims,” Satterwhite wrote. “As you know, Alabama is an ‘at-will employment’ state. As such, there is no valid claim for wrongful termination in this state. In addition, none of these claimants have presented a valid case against the Mayor or the City.”
Sullivan has filed a claim with the city for wrongful termination and other grievances. Heathcoe has filed a claim with the city for $100,000 alleging she was assaulted by Wilson in December 2016. Fidler’s claim has yet to be filed with the city, though it is expected to come soon.
Satterwhite wrote that as executive of the city, the mayor does not agree to pay any settlement money.
“The Mayor made this clear to you a few days after the City received the Heathcoe claim,” Satterwhite wrote. “If the plaintiffs intend to pursue these claims, the lawyers representing the City will have these cases dismissed by the judge, or the City will proceed to litigate the case and win at trial. Since no consideration should be given to paying settlements to plaintiffs who file frivolous claims, there is obviously nothing to consider in an executive session.”
With regards to the marina property, Satterwhite said the mayor objected to an executive session being called for the issue and said she would not participate in a such a session.
“No one has even attempted to explain to the Mayor why a secret meeting would be needed on this issue,” Satterwhite wrote. “While the real property exception to the executive session statute may apply to the marina lease at some point, it would not necessarily apply to the matters to be discussed by the council on Monday. Therefore, any executive session regarding the marina lease on Monday would not be necessary.”
The council ultimately did go into executive session to discuss those issues and Wilson did participate in the session.
‘Usurpation of the Mayor’s power’
Satterwhite then goes on to accuse the council of attempting to lessen the mayor’s powers to run the city and accuses Wynne of aiding them in that task.
“The Mayor’s power and authority to run the day-to-day operations of the City have been repeatedly and severely curtailed by the City Council since she took office,” Satterwhite wrote. “This is illegal under Alabama law. These overly aggressive actions by the council, supported by your office, have been directed at the Mayor even though she has made every effort to cooperate and work with you and the City Council.”
Satterwhite wrote Wilson has many documented examples of the council’s “wrongful conduct” that was allegedly aided by Wynne’s office, with special emphasis placed on the city’s recent hiring freeze.
Satterwhite wrote Wilson has complied a list of the other examples of “such usurpation, with documentation, to be used in support of her position when required.”
Satterwhite wrote that unless the council would be willing to pass a written agreement to settle this dispute, Wilson would take the matter to circuit court.
“The Mayor will be forced to petition the Circuit Court of Baldwin County to order the City Council to back off and operate within their statutorily-defined boundaries,” Satterwhite wrote. “Such litigation would include subpoenas directed to (Wynne) and the council for email and telephone accounts, as well as other discovery designed to learn of the concerted efforts of the City Council to usurp her statutory power and authority.”
‘Hired counsel for the office of the mayor’
In a section entitled “Hired Counsel for the Office of the Mayor,” Satterwhite outlines several grievances against Wynne from Wilson’s perspective, namely that Wynne has only been representing the interests of the city council.
Satterwhite cites an exchange between Wynne and Wilson at the April 24 council meeting as one such issue.
“For example, your recent uncivil out-burst directed at the Mayor in an open City Council meeting indicated a clear lack of respect for the executive of the City,” Satterwhite wrote. “No such similar tirades have been unleashed upon the council president or other council members.”
Satterwhite accuses Wynne of routinely meeting with council members but not making the same efforts to inform Wilson.
Satterwhite also cites the Heathcoe claim as a “more egregious example” of the behavior he writes about, accusing Wynne of excluding Wilson from his investigation and handling of the Heathcoe claim.
Satterwhite also alleges Wynne knew about a possible claim from Heathcoe “long before the Mayor knew about the possible claim” and wrote he chose to withhold that knowledge.
Satterwhite requested Wynne immediately produce for the mayor’s office all “documents, notes, memos, email, letters, written statements or recordings related to the Heathcoe matter.”
“The Mayor is suspicious of such behavior coming from an attorney who is supposed to be representing the best interests of the Mayor’s Office, as well as the City Council and the City as a whole,” Satterwhite wrote. “The Mayor has other similar examples which we can describe in detail, with supporting documentation, at the appropriate time.
A potential lawsuit against the council
Satterwhite then wrote that because Wilson has allegedly received “no legal support” from Wynne’s office, that she had hired Satterwhite’s firm to provide representation for her via a “temporary professional services contract, within the $2,500 maximum cap” that could lead to litigation if the cap is not lifted by the council at the June 12 meeting.
“At Monday’s meeting, the Mayor will demand that the $2,500 maximum cap recently passed by the council be lifted on professional services contracts so that this firm may continue to represent the Mayor,” Satterwhite wrote. “If the Mayor does not receive cooperation in this regard, she is fully prepared to file litigation to stop the City Council’s unlawful intrusions into not only the day-to-day operations of the City, but also the overall powers and authority of the Mayor to execute the statutory duties and obligations of her office.”
Satterwhite said Wilson would consider mediation on the dispute upon agreed terms.
“Any settlement at mediation would have to be reduced to a written agreement,” Satterwhite wrote. “However, we should all agree that a settlement of the current situation would be in the best interest of the City of Fairhope and its citizens.”
Council response
Council President Jack Burrell said he and other council members had seen the letter and some of them were set to discuss it with Wilson and Wynne before the June 12 meeting.
Burrell denied the letter’s claim that the council was trying to usurp any of Wilson’s powers and that the council was simply acting under the authority and powers given to them.
“I don’t think we’re exercising any powers other than those given by state statute,” Burrell said. “We’re not going outside the balance of those. We never have, so I’m really not sure what she and this lawyer are talking about there.”
With regards to the hiring freeze, Burrell said the council sought legal opinions from multiple sources before moving forward.
“We talked to Tut Wynne, Marcus McDowell, Matt McDonald and counsel for the League of Municipalities before we even thought to take action on that,” Burrell said. “That’s going above and beyond to make certain what we do is within the law.”
Burrell said he also disputed the claims that Wynne was acting solely as the council’s attorney.
“Tut works for the city of Fairhope,” Burrell said. “Sometimes, he sides with the council, sometimes, he sides with the mayor. All he’s doing is trying to interpret the law to the best of his ability. He’s not trying to choose a side - he’s just trying to give us the best interpretation of what the law says.”
Burrell said he thought part of the issue was Wilson’s inability to handle dissent.
“When the mayor gets an answer she doesn’t agree with, she tries to find someone who gives her the answer she likes,” Burrell said. “I think that is what is happening with this.”
Burrell said he and others are researching whether Wilson has the authority to try to hire her own outside counsel with city funds in this fashion.
Wynne’s response
In a letter dated June 12, Wynne responded to Satterwhite, disputing many of the claims Satterwhite made in his letter.
With regards to the executive session about pending litigation, Wynne wrote the executive session was to discuss a possible settlement of Heathcoe’s claim.
“This part of the executive session is to discuss settlement of the Heathcoe claim only,” Wynne wrote. “This executive session would not be discussing the Fidler claim or the Sullivan claim. Meredith Wheeler, the Traveler’s Claim Adjuster, asked me to pursue settlement of the claim and I am doing this at her direction. Since any settlement agreement would have to be approved by the council, I need to consult with them and see where they stand. The city has a duty to cooperate with our insurer and that is what I am doing.”
On the question about the executive session for the marina lease, Wynne wrote he disagreed with Satterwhite that it was not appropriate for executive session discussion.
“I disagree with you that discussion of the Marina Leases is not ripe for discussion,” Wynne wrote. “First, the council must determine whether or not they want to continue to lease the property and if so on what terms. The terms of a new lease are properly discussed in executive session. Time is of the essence regarding these decisions.”
Wynne wrote he also disagreed with Satterwhite’s opinion that the mayor’s authority had been “curtailed” by the council.
“The council has done nothing illegal, nor has it been overly aggressive,” Wynne wrote. “In the matters concerning mayor-council authority the council has sought legal advice from me and the ALM (Alabama League of Municipalities). I have done extensive research on the relevant issues and I have consulted with the ALM and others knowledgeable about municipal law. The council acted only after receiving legal advice.”
Wynne wrote the council did have the authority to institute the hiring freeze Satterwhite and Wilson complained about and said the action was not wrongful conduct aided by his office and asked to see what other examples of usurpation the mayor and Satterwhite had.
“Two lawyers with the Alabama League of Municipalities, two lawyers in our office and Matt McDonald, all concur that the council has authority to impose a hiring freeze,” Wynne wrote. “I resent your insinuation that either I or my office aided in ‘wrongful conduct.’ I look forward to seeing ‘other examples’ of usurpation with documentation.”
Wynne wrote he was not concerned about the threats of litigation and discovery made by Satterwhite.
“Neither I nor the council has anything to hide,” Wynne said. “I do have concerns about the continuing damage to the city caused by the continuing controversy between the mayor and council which would be exacerbated by litigation.”
Wynne then wrote to further explain his role as the city attorney, adding he represents the corporate entity of the city.
“As city attorney, I represent the City, the corporate entity,” Wynne said. “I do not represent the mayor or the council. Since Mayor Wilson took office, I have given opinions supportive of the mayor’s position and opinions supportive of the council’s position. Of course I cannot affect what Mayor Wilson thinks, but I disagree that all my opinions have been supportive of the council.”
Wynne also took offense to Satterwhite’s allegation that Wynne’s comments at the April 24 city council meeting were “uncivil.”
“After listening to an orchestrated attack on the motives of dedicated public servants and the attempt to impugn their characters, when asked to respond, I did so to correct a number of inaccurate statements made in the attack,” Wynne wrote. “Also, this was during council comments when the mayor had no right to insert herself into this portion of the meeting. She had already had her say during the ‘mayor’s comments’ part of the agenda. Yet she came up to the podium and proceeded to interrupt me while I was trying to complete my statement.
“The reason I had never before spoken harshly in public to other city officials is because I have never before witnessed other city officials attack the motives of city officials in public and imply officials had intentionally committed unethical or illegal acts.”
Wynne then went on to say his handling of the Heathcoe claim followed the protocol for which all similar claims are handled.
“I handled that claim like I handle all claims processed through me,” Wynne wrote. “I turned it over to Travelers and began working with the Travelers agent assigned to the claim. It is not my place to investigate claims, but my job to turn them over to the insurance company and assist as needed. I did not conduct meetings for a day about the Heathcoe claim. I am not supposed to be representing the ‘best interests of the mayor’s office.’ I am supposed to and do represent the best interests of the City of Fairhope.”
Wynne ended by writing he would not be turning any of his records over to Satterwhite or Wilson.
Meeting at city hall
On the afternoon of June 12, Satterwhite and Wilson met with Wynne, Marcus McDowell, Jack Burrell and Jay Robinson to discuss Satterwhite’s letter and the threat of pending litigation it represented.
Burrell said Wilson urged them to let her hire her own counsel that night by lifting the $2,500 cap for professional services contracts, but said they asked Wilson to consider moving her request to the next council meeting.
“We have protocols to follow for how items get on the council agenda,” Burrell said. “Things normally have to be asked to be put on the agenda the Friday week before the agenda.”
Burrell said the wait could actually serve to Wilson’s advantage.
“Rather than have the council vote on this and not have time to review it or ask questions at last night’s meeting, she now has time to explain the need for it and lobby the council members to vote for it,” Burrell said.
Burrell said he fully expects Wilson to request the item to be placed on the June 26 council agenda.
