In the ongoing dispute about whether Dunwoody Homeowners Association members should serve on city boards, the DHA and the city are starting to set official policies.

Also, the state Attorney General’s Office wants to take a look at the City Council’s June 13 executive session when an apparent policy was set to force DHA members to choose between serving on the DHA or retaining their city appointments.

“[A]n email was sent to members of various city boards and commissions, stating that ‘the Mayor asks’ that individuals who are members of the DHA either resign from the DHA or from the board they serve on,” states a Sept. 9 letter to city attorneys Riley McClendon and Lenny Felgin from the Attorney General’s Office.

“As I am sure you are aware, this raised the question of whether the City Council had discussed and voted on a new policy in the executive session, in violation of the Open Meetings Act,” the letter states.

The Attorney General’s Office is asking to review the minutes of the June 13 meeting and asking for a response to the complaint that triggered the investigation by Sept. 15.

City Communications Director Bob Mullen said the letter from the Attorney General’s Office itself is not “an investigation” but only a request for the city to provide a response to the complaint received by the Attorney General’s Office.

“The city fully intends to provide the Attorney General’s Office with a response and requested materials within the timeframe as asked,” he said.

The Dunwoody Homeowners Association approved a formal policy Sept. 11 that requires board members who also sit on the city’s Zoning Board of Appeals to leave the room when the DHA board discusses a matter pending before the ZBA.

The DHA’s new policy also states members who serve on city boards are not mandated to support DHA positions as they serve on their city appointments.

The policy vote, made at the advice of the organization’s attorney, Seth Weissman, is intended to avoid any appearance of a conflict of interest to having DHA members serving on city boards.

The DHA vote comes ahead of plans by Dunwoody City Council to consider implementing a formal policy prohibiting DHA members from serving on city boards, such as the Planning Commission or ZBA.

Controversy erupted in June when Mayor Denis Shortal and the city’s legal staff told DHA members serving on city boards they had to resign from one or the other due to a potential conflict of interest.

At the Sept. 12 council meeting, Shortal said the council will start considering a formal policy on DHA members serving on city boards at its next meeting, which is slated for Sept. 26.

Shortal said his intention with banning DHA members from serving on city boards is to protect the city’s financial interests. In July, the council agreed to pay $250,000 to settle a lawsuit with Center for Discovery.

The company purchased a house on Manget Way in 2014 for a new treatment facility for teenage girls with eating disorders and had received the OK from the city to do so. Neighbors found out about the facility and organized opposition. The ZBA ruled in the neighbors’ favor, leading to the lawsuit.

“All of us [on the council] knew what was going on with lawsuit,” Shortal said. “The financial liabilities we were facing were big, and that motivated us to discuss the matter.”

Shortal said it would have been better had the council discussed in public a potential conflict of interest of DHA members serving on city boards and that is what members intend to do so now.

DHA President Robert Wittenstein addressed the council during public comment and said it was unnecessary and unadvisable to create such a policy.

“I think it should raise the hair on the back of our necks to be talking about and contemplating banning people from city boards based on the organizations they choose to belong to,” he said.

City policy prohibits removing appointees from city boards without cause, he said, and any such policy could not only affect the DHA, but also other community organizations.

“While a policy might make the lawyers feel better, we all know Mayor Shortal will not be appointing anyone from the DHA,” Wittenstein said.

Gainesville attorney Abbott Hayes spoke to the council at the Sept. 12 meeting to go over his memo sent to council members last month. Hayes was hired by the council to provide an outside legal opinion on whether a conflict of interest existed when DHA members were appointed to city boards.

Hayes said he agreed with the city attorneys’ opinion that it is a conflict of interest for DHA members to serve on city boards.

“So often that desire to be involved with everything collides with elected officials and appointees and their ethics code,” Hayes said.

Councilmember Terry Nall had several questions for Hayes, who was also asked to look into whether a June 13 City Council executive session violated the state’s open records act by apparently implementing a policy banning DHA members from serving on city boards.

Specifically, Nall wanted to know if Hayes believed the council implemented a policy during the executive session that led to a June 17 email being sent out by the city’s attorneys to DHA members also serving on city boards mandating their resignation from DHA or their city board.

The June 17 email states, “The mayor and City Council have determined that it would be a conflict for the members of these boards to also be members of the DHA. As a result, the mayor asks that those of you who are also members of the DHA that you make a choice as to whether which membership you will maintain – you can either resign from the DHA or resign from the board on which you’re on with the city.”

Hayes agreed it sounded like policy was set due to the phrase “the mayor and City Council have determined.” But he said he couldn’t be sure unless he interviewed everyone. He added he did not know about the June 17 email until a few days before the Sept. 12 City Council meeting and well after his legal opinion was given to the city.

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