Dunwoody City Council will learn more at its Sept. 12 meeting about a recent outside legal opinion stating it would be wise to keep Dunwoody Homeowners Association members off city boards “in order to protect the city.”

The DHA has a contrary opinion from its own attorney. The new legal opinion by Abbott S. Hayes, who was hired by the city, acknowledged that the matter of a conflict of interest “is not crystal clear” in the memo received at the council’s Aug. 22 meeting.

Dunwoody Mayor Denis Shortal and City Attorney Cecil McClendon. (Photo Dyana Bagby)

“Like most ethical issues not involving direct financial conflict, it is a judgment call,” he states in the legal memo.
But Hayes states he clearly believes it is a conflict of interest for city appointees and elected officials to be active members of the DHA and advises such membership “should be avoided to in order to protect the city.”

“To align oneself with the DHA, which expressly states that it supports and opposes development, would raise a potential appearance of conflict,” states Hayes.

DHA President Robert Wittenstein said he was disappointed to read the outside legal opinion and that it did not overlap more with the organization’s own legal opinion from attorney Seth Weissman that states there is no legal precedent prohibiting members of a HOA from also serving on city boards.

And if the city does decide to implement a policy, there are options for the DHA to take, including initiating an ethics investigation or possibly even suing the city to stop such a policy.

“I don’t want the DHA to go head-to-head with the city,” Wittenstein said. “I’d like cooler heads to prevail.”

DHA President Robert Wittenstein.

The City Council hired the Gainesville law firm Hulsey, Oliver & Mahar in June to weigh in on its directive that members of the DHA should be prohibited from serving on city boards because of a potential conflict of interest.

The outside legal opinion agrees with the city’s legal counsel that there “is a conflict of interest that arguably tends to impair the independence of his or her judgment or action in the performance of official duties” with DHA members also serving on city boards.

Mayor Denis Shortal said the outside legal opinion confirmed the council acted in a “proper manner” in “seeking to remove any conflict of interest.”

“We’re going to listen to Hayes at the Sept. 12 council meeting and as a council decide what the next course of action will be,” Shortal said. One course of action includes officially implementing a city policy that states DHA members cannot serve on city boards, he said.

Shortal has publicly stated that DHA members serving on such city boards as the Planning Commission and Zoning Board of Appeals could cause serious financial liability to the city.

Since the inception of DHA more than 40 years ago, developers have presented their plans for proposed projects to the DHA before filing applications with, at first DeKalb County, and now, the city.

Dunwoody City Councilmember Terry Nall

Councilmember Terry Nall issued a statement in opposition of forcing DHA members to choose between serving on city boards or serving in the DHA.

“In my view, we do not need a policy of demanding resignations from our tireless volunteers,” Nall said. “Rather, we must provide ongoing ‘best practices’ training and guidance to our volunteer board members about how to conduct their respective city board business and activities within reasonable measures of risk management. This is the path I will support.”