By MICHAEL SIMMONS
An executive session called by the Board of Supervisors on Monday to discuss choosing an engineering firm for a proposed $60 million road project was improper, one supervisor said in recusing himself.
District 2 Supervisor Trey Baxter of Madison said when supervisors went in to discuss two engineering firms who responded to an RFP for the proposed Cotton Blossom Road project he left because the discussion didn’t qualify as an executive session.
“I recused myself because I thought executive sessions was called improperly for choosing a professional services contract,” Baxter said on Wednesday. “There’s no threat of legal action. There’s no economic development, so I didn’t see the reasoning behind calling for an engineering contract.”
He added, “I think that all of the selection processes should be discussed in open forum.”
Board Attorney Mike Espy recommended supervisors discuss in executive session the two engineering firms in question, Waggoner Engineering and Stantec.
Both gave presentations to the board in open session in a bid for the Cotton Blossom Road project prior to Espy steering further discussion in private.
“This could be described as an economic development project,” Espy told board members, saying he didn’t want anybody to make a comment that could border on privileged information.
The Mississippi Open Meetings Act allows for a handful of exceptions which allow governing boards to meet in closed executive session such as personnel or pending litigation.
The law specifically allows for a meeting to discuss “transaction of business and discussions or negotiations regarding the location, relocation or expansion of a business, medical service or an industry.”
It also allows for “transaction of business and discussion regarding the prospective purchase, sale or leasing of lands.”
Baxter said neither of those apply in the Cotton Blossom case because it was for a professional services contract, which the Mississippi Ethics Commission has ruled aren’t an exception for executive session.
An email sent to Espy seeking comment was unanswered as of press time.
(Editor's Note: Espy responded to the email Wednesday evening after the paper had been printed but his response is listed at the bottom of this story.)
The Cotton Blossom Road project is a proposed project that would ultimately connect Highway 43 to Sowell Road via Cotton Blossom Road and create a new east-west corridor.
Cotton Blossom Road runs between Highway 43 and North Old Canton Road.
District 4 Supervisor Karl Banks said the goal is to create a corridor that helps cut down traffic going down to Yandell Road.
Supervisors issued the RFP earlier this year seeking engineering services for the project, which they hope to award next month.
Waggoner Engineering and Stantec both responded to the RFP and on Monday gave presentations to the board where each side was sequestered during the other’s presentation.
Both firms, which currently perform work for the county, were touting their resources and qualifications in the closed meeting.
Board President Gerald Steen said for him it boiled down to whichever firm would be able to help secure more funding, despite that not being a part of the RFP.
“To me it boils down to the finances,” Steen said during the presentations.
The board had no public discussion after the presentations and took no action in executive session. They voted to take the matter up at the next board meeting on May 2.
BOARD ATTORNEY MIKE ESPY'S RESPONSE
When asked by the county administrator on Sunday whether the presentation and discussion concerning the selection of an engineering firm for the Cotton Blossom Road Project should be held in executive session, or in open session at Monday’s meeting, I replied that it should be done in open session.
The RFP for this project received responses from the Waggoner and Stantec engineering firms- both qualified firms that the board retains- from time to time - to handle large road and bridge projects in Madison County.
I didn’t know what the respective presentations would entail, but the decision was made to employ a process, whereby, while the representatives of one firm were making their presentation, none of the representatives of the other firm would be present in the boardroom, thereby rendering them unable to see, hear, or know what the representatives of the competing firm were saying, or how either firm responded to questions from the supervisors.
The presentations from both firms were made made in public, and the questions asked to each firm were made in public, and on the record. I admit that the process of not allowing one firm to hear what the other firm was saying was unusual, but it proved out as the right method to employ. Allow me to explain.
After the presentations had concluded, I had believed that the board would have taken the matter under advisement, but when the board proceeded to discuss the merits of both engineering firms, so as to make a decision at the same meeting, I believed it to be within my duty, as counsel to the board, to advise the board to move the discussion to executive session, but to return and make a decision regarding selection in open session.
During the presentations, I heard references being made to what I regard as "privileged information." Particularly in regards to a response to a question from one of the supervisors. I am pleased that when these certain references were made by one engineering firm, that the other engineering firm was not in the room.
Assumptions were also being made during the open session about how the Cotton Blossom Road project would be funded and whether the engineering firm(s) would participate in helping to find funding.
The funding issue was not a part of the RFP, and the question would have been improper in open session, but quite appropropriate in executive session where discussions are normally held on the strategic questions of how the county would endeavor to finance a costly and protracted infrastructure project, about how to pay for land and of right-of-way, and the cost of moving utilities, and about whether this landowner or that landowner would donate his or her land, or whether the county would have to “take” the land by eminent domain.
Listening to the presentations, to the responses to the questions propounded by supervisors, and to the back-channel conversations by supervisors during open session, I believed that the wisest and most prudent option was to take the discussion to executive session, but to return to open session to make the decision of which vendor to choose.
During executive session I made an extended statement to the board as to the propriety of some of the questions that had already been asked of the presenters, questions that were not within the ambit of the RFP to which they had both responded. I cautioned the board that these questions could not be asked- at all- because the losing firm could very well decide to sue the county- because they could have taken the view that they lost the contract for a reason that was not within the ambit of the RFP. My charge as counsel is always “look around to corner” and to protect the board against potential litigation.
I also informed the board that one presenter had disclosed information that I considered “sensitive and privileged”, and that this could not be repeated in open session. Again, because of the specter of potential litigation.
Specifically to your legal question, I premised my decision to caution the board to go into executive session because Cotton Blosson Road is a project of “economic development” value, worth and purpose, much as the Reunion bridge and road project is an economic development project, after which major commercial development will ensue in Bozeman Road and Parkway East area. The Reunion bridge and road project necessarily involves land acquisition and it is normal and customary that the board of supervisors engage in these types of conversations in executive session.
My opinion to advise the board to enter into executive session was based on my reading of §25-41-7(4)(b)(g), and my certain belief that the board has the discretion to make decisons that would avoid the invite of litigation, and to discuss in private whether or not the Cotton Road Blossom project, as a large economic development project, could acquire sufficient lands and funds to go forward.
