BEAR CREEK-The Bear Creek Development Authority has a system of four lakes and the surrounding woodlands with various outdoor activities such as camping. hiking fishing and swimming. The four lakes (Cedar Creek, Little Bear, Upper Bear and Bear Creek) and spread through Marion, Franklin and Winston counties.
It was brought to the attention of Rep Johnny Mack Morrow on several occasions that conditions at within Bear Creek Development Authority were not what they should be. Board meetings were not being held in compliance with the bylaws and conditions at the lakes were not up to par. Morrow investigated and sent a letter to Rep. Howard Sanderford, Chair of the Sunset Committee.
Upon receiving the letter from Rep. Morrow Sanderford sent this reply to Morrow:
Termination is automatic for agencies named in the sunset law or in their enabling law as subject to the sunset process. A bill to continue them is necessary to prevent termination. Other agencies, like BCDA, will not terminate unless a bill to terminate them becomes law.
The Department of Examiners of Public Accounts assists the Sunset Committee by obtaining, compiling and evaluating information and producing a report on each agency for use by the committee
Morrow cited the board’s inability to have a quorum of members present at board meetings as a major problem in a letter he sent to Rep. Sanderford. He also cited the board’s February 9, 2018, meeting where officer elections took place in a manner Morrow believes to be violative of the board’s own policy.
Letter to Rep. Howard Sanderford From Rep. Johnny Mack Morrow:
ALABAMA
ALABAMAHOUSE OF REPRESENTATIVES
STATE HOUSE: 334-242-7698
DISTRICT: 256-356-8043
REP. JOHNNY MACK MORROW
DISTRICT NO. 18
1895 HIGHWAY 28
RED BAY, ALABAMA 35582
May 25, 2018
Dear Representative Sanderford,
I am forwarding to you, as Chair of the Sunset Committee, a copy of a letter from John Treadwell, Deputy Director of The Legislative Service Agency Legal Division. The Bear Creek Development Authority has been a dysfunctional entity for some time. Since I was elected to the Alabama House of Representatives in 1990 citizen complaints concerning the operations of this Authority have been numerous and often. The inability of the Board to have meetings with a quorum being present has always been a major problem. This has required the Administrator of the Authority to step in and make decisions in order for the Authority to provide basic services to the public.
At the February 9, 2018 meeting nine of the fourteen directors were in attendance and an election of officers took place. The election of officers was conducted by voice vote and Connie Morrison was elected to be the new chairperson of the board of directors. In his letter, John Treadwell lists three potential challenges to the action of the board of directors relating to the election of officers at the February 9, 2018, meeting:
- Manner of Voting
- Notice of Meeting
- Notice of the Purpose of the Meeting
It is my understanding that Connie Morrison is claiming legitimacy to the election and is declaring herself the Chairperson of the Bear Creek Development Authority Board of Directors and is planning a board meeting. This legitimacy is not shared by many current board members therefore I foresee a major problem if the board meets and takes a vote on any issue. It is also my understanding that she is possibly taking this drastic action in order to push through a lease agreement that is favorable to the city of Bear Creek where she currently serves as its mayor. You can see the dysfunctional status of the BCDA board of directors. As a member of the Alabama Legislature I am very concerned that the services to my constituents will be negatively impacted by this turmoil.
Here are the concluding two paragraphs of John Treadwell’s letter:
“As a possible alternative solution to the issues related to the activities of the BCDA, legislation could be drafted to dissolve or reform the Bear Creek Development Authority to revise the membership of the authority and to insure that the authority carries out its statutory purpose in a proper manner.
Another legislative option would include contacting the Chair of the Sunset Review Committee and requesting that the Sunset Committee conduct a sunset review of the BCDA. This process would include an in-depth review of the activities of the board, including the board of directors, and an evaluation by the Department of Examiners of Public Accounts regarding finances and compliance with certain legal requirements.”
I am sending you, Chair of the Sunset Committee, this information to express my serious concerns about the future of this state agency. Citizens of Alabama, when they visit Upper Big Bear Creek Lake, Lower Big Bear Creek Lake, Little Bear Creek Lake or Cedar Creek Lake, they expect and deserve the quality of services to be at a very high level. Whether they are fishing, hiking, horseback riding, boating, canoeing, kayaking, hunting, birding, camping, swimming, picnicking or whatever they are doing, as a member of the Alabama Legislature I will accept nothing less! Thanks in advance for your help with this extremely important issue in my District.
Sincerely Yours,
Representative Johnny Mack Morrow
District 18
A letter from John Treadwell, deputy director for the legal division of the Legislative Services Agency, raised three potential challenges to the election of officers that day, including the manner of voting, notice of the meeting and notice of the purpose of the meeting.
Letter to Rep. Johnny Mack Morrow from John Treadwell:
Representative Johnny Mack Morrow
11 South Union Street
Suite 517-F
Montgomery, AL 36130
Re: Bear Creek Development Authority #LSA2018-871
Dear Representative Morrow:
This letter is to confirm attendance of our meeting with you, members of the board of directors of the Bear Creek Development Authority, and Rachel Riddle, Chief Examiner of the Department of Examiners of Public Accounts . Several issues were raised in the meeting concerning the validity of the election of officers that took place on February 9, 2018.
Based on our conversation, the following events took place. On January 8, 2018, Shannon McKinney emailed the board of directors notice of a meeting scheduled for January 12, 2018 . At some point prior to the meeting, the meeting was canceled because of bad weather. On January 31, 2018, Shannon McKinney again emailed the board of directors notice of a meeting scheduled for February 9, 2018 . Neither of the emails from Shannon McKinney stated that an election of officers would take place at the meeting, At the February 9 meeting, nine of the fourteen directors were in attendance and an election [1]of officers took place. The election of officers was conducted by voice vote and Connie Morrison was elected, 5-4, to be the new chairperson of the board of directors.
The following are three potential challenges to the action of the board of directors relating to the election of officers at the February 9, 2018, meeting.
- . Manner of Voting
The bylaws provide that at all meetings, all questions, except the question of amendment of bylaws and election of officers, shall be decided by a majority vote of those directors present and voting. 1 The bylaws require that officers be “elected by secret ballot and shall be chosen by a plurality of the votes cast. ” [2]
The election of officers on February 9 was not conducted using secret ballots . Therefore, the election was conducted in violation of the BCDA Bylaws. If challenged, a court may hold the vote to be invalid and order a new vote to be conducted.
- . Notice of the Meeting
The bylaws of the BCDA require “Written notice of every regular meeting, stating the time, date, place, and purpose of said meeting, shall be given by mailing, postage prepaid, at least ten days prior to the date of the meeting, a copy of such notice to each Director at his last known address. The notice provided for in this section may be waived upon execution of a written waiver of notice by two-thirds of the Directors” . [3] The bylaws thus require the notice of board meetings to be provided by mail and require the notice to be placed into the mail at least ten days prior to the meeting.
Because the notice was provided by email and did not expressly conform to the requirements in the bylaws, the form of the notice may be subject to challenge. [4]
Further, state law provides that a director’ s attendance at a meeting is a waiver of any defective notice. Therefore, only directors who were not in attendance at the meeting would have standing to challenge the notice given.
- Notice of the Purpose of the Meeting
Existing law relating to nonprofit corporations may be instructive on this issue. This law provides: ‘J Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors or any committee designated thereby need be specified in the notice of the meeting or the waiver of notice unless required by the bylaws . ” 5 The bylaws require written notice of every regular meeting to include the “purpose” of the meeting. 6
In the notice provided to the board of directors for the February 9th meeting, an agenda was attached. However, the action item of election of officers was not included on the agenda. It also appears that in prior years, the agenda for the January meeting included a specific reference to the election of officers .
4 . Additional Legislative Alternatives
As a possible alternative solution to the issues related to the activity of the BCDA, legislation could be drafted to dissolve or reform the Bear Creek Development Authority to revise the membership of the authority and to ensure that the authority carries out its statutory purpose in a proper manner .
Another legislative option would include contacting the
Chair of the Sunset Review Committee and requesting that the Sunset Committee conduct a sunset review of the BCDA. This process would include an in-depth review of the activities of the board, including the board of directors, and an evaluation by the Department of Examiners of Public Accounts regarding finances and compliance with certain legal requirements .
Section IOA—3-2. 13, Code of Alabama 1975,
6 BCDA Bylaws, Art. Il, Sec. 1 .
If you have any questions, please contact our office.
i rec r, Legal Division
By: Caleb Hindman
Legislative Attorney
[1] BCDA Bylaws, Art. Il, Sec. 5 .
[2] BCDA Bylaws, Art 1 1 1 , Sec. 1 .
[3] BCDA Bylaws, Art . Sec. 1 (emphasis added) .
[4] It appears that the BCDA complied with the seven-day notice requirement under the Open Meetings Act.
John Treadwell
Deputy Director, Legal Division
By: Caleb Hindman
Legislative Attorney
