The city of Dunwoody is disputing the allegation it violated the state’s Open Meeting Act when it met in an executive session June 13 resulting in a directive that members of the Dunwoody Homeowners Association could no longer serve on city boards.

Assistant City Attorney Lenny Felgin stated in a Sept. 14 letter to Assistant Attorney General Jennifer Colangelo that the city followed state law when it met behind closed doors June 13 because the matter discussed — litigation — is legally allowed to be discussed out of the public eye.

Dunwoody Assistant City Attorney Lenny Felgin.

Dunwoody Assistant City Attorney Lenny Felgin.

The Attorney General’s Office notified the city’s attorneys Sept. 9 it was investigating the executive session to determine if the mayor and council discussed a new city policy, in violation of the Open Meetings Act.

In his letter to the Attorney General’s Office, Felgin stated the reason the mayor and council met June 13 in executive session was to discuss the Center for Discovery lawsuit.

Center for Discovery sued the city in state court and then federal court. The lawsuits were filed after the city first authorized a zoning certification to open a rehabilitation home for teen girls with eating disorders on Manget Way and then the zoning decision was reversed by the Zoning Board of Appeals after backlash from residents living on Manget Way.

Felgin went on to state that Gerri Penn, a board member of the DHA, also served on the ZBA and was a vocal opponent to the Center of Discovery home and that the DHA was also publicly opposed the Center for Discovery facility. Felgin also stated Penn did research on the case outside her duties as a ZBA board member and essentially cast the tie-breaking vote by the ZBA in reversing the zoning decision.

The city settled the lawsuit in July with Center of Discovery for $850,000, with the city’s insurance picking up $600,000 and the city paying out $250,000.

Felgin noted the DHA was established long before Dunwoody became a city in 2008 and served as a “quasi-governmental organization” before the city was incorporated. He also stated that “even today, with the incorporated government of the city, the Planning Commission and the council as the zoning authority, all zoning matters coming before the City Council is [sic] always brought to the DHA first to garner their support.”

“Suffice it [sic] to say, due to [DHA’s] rather large vocal minority of residents (1,000 out of approximately 49,000 residents), it is very influential on the decisions made by council,” Felgin stated.

When the City Council discussed the Center for Discovery lawsuits in April with their attorney, Laurel Henderson, she informed them a main reason the city would not likely win is because Penn had done outside research on the case and was an active member of DHA.

It was at the April meeting when the council started considering Henderson’s opinion that there would continue to be a clear or inferred conflict of interest for DHA members to serve on city boards, Felgin wrote.

Following that April meeting, the city attorneys were directed to write up a memo on their opinion if serving on the DHA is a conflict of interest for serving on city boards and also how city board members should conduct themselves as a way to minimize more lawsuits, stated Felgin.

Then, at the June 13 meeting, more discussion of the Center for Discovery lawsuit took place and Mayor Denis Shortal said he wanted to send the memo written by the city’s attorneys to members of the DHA also serving on city boards. Shortal also said he was going to call specific city board members, including Gerri Penn, to ask them to resign from the DHA or their city boards to alleviate potential conflicts of interest, according to Felgin.

Shortal also said he would not appoint people to city boards unless they resigned from the DHA or other similar organizations.

“The overwhelming majority of the council, after some discussion, had no issue with the plan. No votes were taken. No policy was set,” Felgin stated.

Felgin emailed the DHA board members also serving on city boards the legal memo outlining the potential conflict of interest on June 17. Included with the memo was an email stating the information was covered by attorney-client privilege and should not be released to the public. If the information was released, the person who did so faced a possible city or state ethics violation.

Felgin said the reason to include the warning of an ethics violation was to try to avoid a situation that occurred in the city several years ago in which the minutes of an executive session were leaked to the press and resulted in the city attorney resigning.

The email also included the mayor’s directive that DHA members resign from their city board of the DHA, Felgin stated. “That portion of the email was not a legal opinion or directive from the city attorney’s office not did it indicate that the mayor, in any way, required them to make that choice or that this was a policy that the council had voted on,” Felgin stated.

DHA President Robert Wittenstein took issue with some of Felgin’s comments.

“The DHA is not a quasi-governmental organization. This is patently absurd,” Wittenstein said. Two classic examples of a quasi-governmental entities are public hospitals like Grady Hospital that are privately run but publicly funded and the Georgia Ports Authority, which receives millions in state funds to operate the ports, he said.

Wittenstein also said Felgin’s notion that zoning matters come to the DHA before the city to garner their support “is simply not true.”

“We receive updates from developers occasionally on items of general interest to the community and on very rare occasions take a position in favor of, or in opposition to a proposal,” Wittenstein said. “This is a gross exaggeration of our role that is simply a false statement.”

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