DOCUMENT 2 ELECTRONICALLY FILED 8/12/2020 11:54 AM 05-CV-2020-900949.00 CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA JODY L. WISE, CLERK IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA CITY OF ORANGE BEACH, an Alabama Municipal Corporation, Plaintiff, v. CIVIL ACTION NO.: CV-2020-______ JOSEPH FIERRO, THOMAS L. CONERLY, and JOHN T. GRISSOM, Defendants. COMPLAINT FOR DECLARATORY JUDGMENT AND REQUEST FOR EXPEDITED HEARING PURSUANT TO RULE 57, ALABAMA RULES OF CIVIL PROCEDURE The City of Orange Beach (hereinafter “the City”) seeks a ruling from this Court on whether and to what extent it is required to release certain municipal records relating to Defendant Joseph Fierro (hereinafter “Fierro), a former employee and current candidate for public office in Orange Beach. Because the election is less than two (2) weeks away, the City is also requesting an expedited ruling from this Court as the records may have bearing on the election. The facts are as follows: 1. The City of Orange Beach (“Orange Beach” or “City)” is an Alabama class 8 municipality located within Baldwin County, Alabama. 2. Orange Beach is a body politic and corporate which is authorized to enter into contracts and to file suit for any municipal purpose. Ala. Code § 11-40-1. 3. Orange Beach is a “person” within the meaning of Alabama’s Declaratory Judgment Act, Ala. Code § 6-6-220. DOCUMENT 2 4. Renee Eberly is the City Clerk and custodian of records for Orange Beach. Section 2-2, Code of Ordinances, City of Orange Beach (“City Code). The City Clerk is a public officer within the meaning of Alabama’s Open Records Act, Ala. Code § 36-12-40, et seq. 5. Tom Conerly (“Conerly”) and John Grissom (“Grissom”) are adult resident citizens of Orange Beach. Both Conerly and Grissom have filed requests for public records seeking public records concerning Fierro’s employment with the City, including the circumstances related to his resignation. Copies of these requests are attached as Exhibit A. 6. Joseph Fierro (“Fierro”) is an adult resident citizen of Orange Beach who served as Chief of Police from February 5, 2016 to November 20, 2019. Fierro has qualified to run for the office of City Council, place 5, for the City. The City municipal elections are scheduled for August 25, 2020. 7. The City is subject to the Alabama Open Records Act, and the City is required to comply with the Act to the extent it has public writings covered by Ala. Code §§ 36-12-40 and 41-13-1. 8. Certain records requested to be produced by Conerly and Grissom may be within certain special areas not subject to public disclosure as acknowledged by the Alabama Supreme Court in Chambers v. Birmingham News Co., 552 So.2d 854 (1989) and related cases. 9. The Orange Beach municipal elections are scheduled for August 25, 2020. 2 DOCUMENT 2 10. The City Clerk forwarded the public record requests to the City Attorney for a determination of whether such records were subject to disclosure under Alabama’s Open Records Act. 11. The City Attorney has advised the City Clerk that she is unable to determine whether the records relating to Fierro’s resignation must be disclosed, and that the release of certain records could expose the City to liability and could infringe on the privacy rights of other individuals. 12. On August 11, 2020, the City Attorney notified Mary Pilcher, an attorney representing Fierro, that the City had received the public records requests. Ms. Pilcher objected to the release of the records on August 11, 2020. 13. At the City Attorney’s request, the Orange Beach City Council authorized the City Attorney to bring this action in order to obtain from this Court a declaration of the City’s legal rights and obligations as allowed by Ala. Code § 6-6-222. WHEREFORE, the premises considered, the Petitioner requests that this Honorable Court take jurisdiction of this matter and requests the following relief: a. That the Court allow the requested records to be filed with the Court under seal; b. That the Court review the documents and make a determination regarding whether they are public records; and c. That the Court set this matter for an expedited hearing so that a determination may be made prior to the August 25, 2020 municipal elections. 3 DOCUMENT 2 /s/ Wanda Cochran WANDA J. COCHRAN, (COC007) CITY OF ORANGE BEACH, ALABAMA Post Office Box 458 Orange Beach, Alabama 36561 Ph: 251-981-6779; Cell: 251-767-6795 wcochran@orangebeachal.gov Attorney for the City of Orange Beach, Alabama /s/ Andrew J. Rutens ANDREW J. RUTENS (RUT009) GALLOWAY, WETTERMARK & RUTENS, LLP Post Office Box 16629 Mobile, Alabama 36616 Ph: 251-476-4493; Fx: 251-479-5566 arutens@gallowayllp.com Attorneys for the City of Orange Beach, Alabama DEFENDANTS ARE TO BE SERVED BY SPECIAL PROCESS SERVER: Alacrity Legal Services 61 St. Joseph Street, Suite 1100 Mobile, Alabama 36602 Joseph Fierro 26289 Marina Road Orange Beach, AL 36561 Thomas L. Conerly 5305 Mississippi Avenue Orange Beach, AL 36561 John T. Grissom 4125 Harbor Road Orange Beach, AL 36561 4