Dunwoody City Council voted June 24 to suspend enforcement of a city directive mandating members of the Dunwoody Homeowners Association to choose between their DHA memberships or serving on city boards.

The council also voted to seek at its July 11 meeting outside legal counsel for a second opinion on whether or not a conflict of interest exists for DHA members that prohibits them from serving on city boards that deal specifically with zoning issues. The council also will seek a legal opinion on whether the city violated any law by making such a decision in an executive session.

The council also wants city staff members to look at other cities’  practices and to examine regular training for volunteer city board members.

Voting in favor of suspending enforcement were all those present – Mayor Denis Shortal and Councilmembers Pam Tallmadge, Lynn Deutsch, Terry Nall and John Heneghan.

Shortal was the lone vote against the second motion, saying he supports the city’s legal advice and believes the city offers quality training for elected and appointed officials.

Mayor Denis Shortal votes against seeking a second opinion on the city’s attorneys advising DHA members cannot serve on city boards. (Photo Dyana Bagby)

The special called meeting was hastily called this week after a five-page memo was sent out June 17 by Dunwoody’s attorneys to about two dozen members of several city boards and commissions.

The memo — not released by the city, which claimed attorney-client confidentiality, but posted by activist and blogger Bob Lundsten to social media and on his blog — states a potential conflict of interest exists for DHA members to serve on the Planning Commission, Zoning Board of Appeals, the Construction Board of Adjustment and Appeals and the Design Review Advisory Committee.

The city’s attorneys argued in the memo that DHA members serving on these boards open the city to lawsuits from developers due to an appearance of possible pre-judgment on issues. The memo also states it is a conflict of interest for city councilmembers to attend DHA meetings because it could also give the appearance they are influenced by what is said during meetings with developers.

Dunwoody City Attorney Cecil McClendon, left, talks with City Manager Eric Linton before the city’s June 24 special called meeting. (Photo Dyana Bagby)

The same potential conflict of interest exists if City Council members attend a DHA meeting where a developer outlines plans for a proposed development before filing such documents as a rezoning request with the city, the lawyers said.

Shortal, who was heckled a bit by some in the audience, said at the meeting that the DHA served its purpose before the city was incorporated and he believes the two entities should be completely separated now.

“I’ve been a member for 27 years. At the time, the DHA was a quasi-government … today you have an elected government,” he said.

Shortal also said that developers can take anything anyone says about a proposed development – in a DHA meeting, in an email, to the press – and use it to potentially sue the city if they don’t get the zoning decision they are seeking.

“You have set yourself up for an appeal … and you are most likely going to lose. That’s probably a weak term for me. You’re going to lose,” he said.

Shortal said the city is at risk of being sued for millions of dollars by developers that could financially bankrupt the city, but specific examples of potential lawsuits were not cited in the meeting. “The city does not have deep pockets,” he said, “… and litigation could lead to financial ruin.”

Community members speak against, and for, city order

The most recent controversial vote DHA vote on a proposed development was the multi-million dollar Crown Towers project at the former Gold-Kist site near I-285. The DHA voted to support the massive mixed-use development, but the developers pulled the plans from the May 23 city council agenda for the project after they said they were unsure how the council would vote.

Crown Towers consultant and developer Charlie Brown attended the June 24 special called meeting and was spotted talking with Nall after the meeting.

Shortal left the meeting early to catch a flight to Savannah for the Georgia Municipal Association convention. He said as he was leaving that he believes the city appointees receive adequate training. When asked why the issue has come up now after the DHA and council have existed together for eight years, he said “If not now, when?”

The council listened to scorching criticism from many community members for making such a decision without public input.

Dunwoody Homeowners Association board member Bill Grossman is also a member of the city’s Planning Commission. He spoke out against the city’s recent order stating DHA members cannot also serve on city boards. (Photo Dyana Bagby)

Bill Grossman, a member of the DHA board and the city’s Planning Commission, said he was called June 16 by Shortal and informed of the city’s new policy. Blaming the DHA for any current and potential lawsuits is “offensive,” he said.

“The real problem is the ongoing reluctance of the city to adequately fund training for elected and appointed officials in their roles. Recommending purging DHA will not solve the perceived problem,” he said.

Three people spoke in favor of the city’s decision. Cheryl Mageste said DHA can still be viable and “find its voices again.”

Cheryl Majeste said she supports not allowing DHA members to serve on city boards. (Photo Dyana Bagby)

“If members can step away from their feelings … they would want to what’s best for the city,” she said.

DHA President Robert Wittenstein said he is open to discussion on whether a conflict of interest exists for DHA members to serve on city commissions. But he said the mayor’s reason for supporting the order that DHA members must choose one or the other — because the potential of lawsuits could bankrupt the city — is false.

“He is using a common technique — fear, uncertainty and doubt, or FUD — and I resent that,” Wittenstein said.

The goal of a city government is not to minimize litigation, Wittenstein said, but to operate in the city’s best interests. Sometimes that means going to court to stand up for doing what is in the city’s best interests, he said.

City Council state their opinions

Heneghan said it was his understanding the memo from the attorneys does not outline a new city policy but is rather legal advice that the city can accept or not accept.

Deutsch said she resigned her position from the DHA executive board after she was appointed to the Planning Commission prior to being elected to the City Council.

“I wasn’t confident feeling that a developer would have to face me two times,” she said.

Tallmadge said the DHA was the “backbone of our citizenship.”

“But in my opinion we can spread the wealth” and have other people besides DHA members serve on city boards, she said.

All members, except Shortal, apologized for the way the city handled the situation.

“It was harsh, and I feel ashamed,” said Tallmadge.

Heneghan, who served as mayor pro tem after Shortal departed, apologized for the city. “On behalf of the city, this was not handled well. Dunwoody deserves better,” he said. “I sincerely apologize on behalf of the city.”

Deutsch added her apologies and also thanked the volunteers who serve on city boards and also on nonprofits.

Nall, who made the motions to suspend enforcement and seek a second opinion, said the past two weeks “have not been our city’s finest hours.”

He explained the memo from the attorneys was intended to be used for board awareness and training, but the directive to choose between DHA or a city board from the city’s legal staff “became a policy in appearance.”

Dunwoody Assistant City Attorney Lenny Felgin.

Nall said the directive from the City Council for the legal opinion of whether there is a conflict of interest for DHA members to serve on city commissions came about during a June 13 executive session, and he was the only person opposing it.

The vote to step back and open up public discussion on this issue is a “good day for Dunwoody,” he said.

DHA Vice President Adrienne Duncan said after the meeting the city’s decision to step back from its order is “the only ethical choice they could have made.”

“They made a big legal transgression that has to be rectified and I look forward to open conversations about mutual membership,” she said.

Dyana Bagby

Dyana Bagby is a staff writer for Reporter Newspapers and Atlanta Intown.