Decatur council pushed to sign confidentiality form barring disclosure of citizen health risks without vote

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DECATUR, Ala. - The Decatur City Council was asked to sign a confidentiality agreement regarding ongoing litigation involving 3M and the company's PFAS chemicals. It appears the proposed agreement would bar elected officials from making public statements even concerning related public health threats unless a majority of the city council approves it.

The non-disclosure agreement was apparently going to come up behind closed doors at Wednesday's special called council meeting. But it never got that far because the council deadlocked on the need to go into executive session.

Council President Paige Bibbee, Kristi Hill, Billy Jackson, and Charles Kirby were at Wednesday's brief meeting.

The four council members told WHNT News 19 they have no plans to sign such an agreement at this time.

The focus of the two-page confidentiality agreement is lawsuits involving the City of Decatur, 3M, and plaintiffs who say 3M's PFAS chemicals have contaminated their property and the Tennessee River.  The lawsuits are currently in mediation, a closed-door negotiating process supervised by a court-appointed mediator. Attorney Barney Lovelace, who is representing Decatur and Morgan County in the lawsuits, says the process is confidential.

"The City and County are participating in court ordered mediation relating to the two lawsuits the City and County are parties to involving PFAS," Lovelace told WHNT News 19 on Dec. 2. "Under the court rules governing mediation all parts of the mediation process are confidential."

WHNT News 19 obtained a copy of an email that shows Decatur City Attorney Herman Marks asking the five council members to review the non-disclosure agreement on Monday. Marks warned them they wouldn't be able to review documents related to the ongoing litigation without signing it.

But it's not clear where the push to mute the council is coming from. 3M told WHNT News 19 Wednesday the company did not ask for council members to sign a non-disclosure agreement. Environmental watchdog group Tennessee Riverkeeper also said it didn't request the agreement.

Attorney Leon Ashford, who represents a group of plaintiffs who sued 3M, Decatur and others back in 2002 released this statement after WHNT News 19 asked if he made the request.

"I do not represent the City of Decatur Council or any other entity which is a defendant in the St. John litigation, so I clearly would not have made such a request," Ashford said. He continued, "That said, everything we have exchanged for many years has been designated 'mediation confidential,' or confidential under 'FRCP 408' or Rule 11 of the Alabama Civil Court Mediation Rules. Thus, I and everyone else associated with this case, including all retained experts and consultants, have signed a confidentiality agreement."

The proposed agreement goes pretty far. The proposed agreement defines confidential information as "any confidential, non-public or proprietary information prepared by the City, County, or any party to the Litigation, including any third parties retained by any parties to the Litigation."

Council President Paige Bibbee said she was asked to sign one last week but refused.

"I didn't sign the non-disclosure because I feel as an elected official I have an opportunity and a right to," Bibbee said. "That's why I was voted in for the people to inform them of anything that could be potentially dangerous or not dangerous."

While Bibbee said no, Decatur Utilities officials did sign a non-disclosure agreement according to a DU spokesperson.

Marks' email also suggested Morgan County officials have signed it.

Such an agreement could have a significant impact on Morgan County residents.

The proposed non-disclosure for the council says the public couldn't be notified of "an imminent or substantial endangerment of the health of the citizens of Decatur" unless the city council votes to issue a warning.

"It would be my duty, just a human duty to go out and inform people, well 'hey, we may have a problem," Bibbee said.

But it appears individual members would be barred from speaking up if they signed it. It's not clear how it would be enforced or what would happen if council members were to break the terms.

Decatur Mayor Tab Bowling did not respond to WHNT News 19's request for comment.

Morgan County Commission Chairman Ray Long told WHNT News 19 Thursday morning that he has signed a confidentiality agreement.

Updated at 11:20 a.m. to include full quote from Leon Ashford, Long's confirmation of agreement signing. 

Updated at 12:30 p.m. to include quote from attorney Barney Lovelace, description of mediation process. 

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