Q&A: Council votes on action after the fact


From The Herald (Jasper):

Q: The city of Jasper is working with a developer to rehab a couple of abandoned factory buildings and turn them into rental housing. The city is contributing $410,000 to the project in various incentives and fund appropriations.

That amount will allow the developer to get an optimal score for state tax credits from the IRS’ Rental Housing Tax Credit Community Development Authority. The developer originally requested $400,000, which the city council approved. The developer, on the eve of the deadline, realized to get an optimal score, it needed $410,000.

The company called the mayor, who polled the council­men by phone. None were opposed to the extra money. So the mayor, in the city’s support letter, said the city would provide $410,000. That was on Oct. 31. The council, at its regular meeting on Nov. 18, formally voted for the extra $10,000.

Did he violate the Open Door Law? And is it worth doing anything more than writing the city attorney to say “we know what you did?”

A: I don’t see an Open Door Law violation as you’ve described it. It appears the mayor polled the council either by email or phone calls/conversations, which would not trip the serial meeting prohibition since it was all one-on-one.

If it was via email and the mayor used the city email account, you could make a records request for the emails.

His action assuring the developer of the additional $10,000 doesn’t pose a problem because it would be assumed he was acting as an agent of the city. The council did what was correct – ratifying his action at a public meeting where they could have repudiated his commitment.

Your beef if you decided to act on it would be that the process robbed the public of the opportunity to hear debate on the question, unless it could be seen in email exchanges.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.