In a 2-1 decision, the Birmingham Ethics Board voted that Birmingham City Commissioner Clinton Baller did not violate the city's ethics ordinance when he complained about a resident, Donna Klein, and her work as a neighborhood lead on the media site NextDoor, via a newsletter he disseminates through email in which identifies himself as a city commissioner, and through his public Facebook page.
In an hours-long meeting on Friday, September 11, that included lengthy discussion of whether Baller had violated one of several sections of the city ethics ordinance, the three-member board particularly focused on sections of the ordinance which read that “each city official, employee, or advisor must earn and honor the public trust by integrity and conduct.”
Further sections state, “All city officials and employees must avoid conflicts between their private interests and the public interest. Public officials and employees must: Be independent, impartial, and responsible to the people.”
The board had previously held a hearing on September 1 to hear a complaint by Klein against Baller, in which she alleged he gratuitously and falsely demeaned her after he was banned from the NextDoor site, both on Facebook and through an email newsletter in which he signs it as “Clinton Baller City Commissioner.” Baller claimed that Klein was responsible for him being banned from the social media site.
In response, Baller said his newsletter is “an email consisting of several compiled writings that goes out to people who may have subscribed. It's a digest of my opinions.”
While Klein has claimed Baller had libeled her, the board determined that was a matter for the courts, not the ethics panel.
Ethics board chair James Robb said he felt Baller's behavior rose to the level of violation of the ethics ordinance, which he compared to a previous ruling, in May 2010, when the board ruled against former traffic and safety board member David Weisz, determining his activities against the transit center in Troy included his email signature block listing himself as a member of the traffic and safety board and was therefore an ethics ordinance violation.
“The first problem is his letterhead,” Robb said. “It is his own newsletter. It is not issued through a city website, but it does hold him out,” noting he could not see the difference from the Weisz case. “Then he should not set himself out as a commissioner – he should say it's my personal opinion. He should not put himself out with his messaging like that.”
While Robb said he had researched NextDoor's policy, and as lead, Klein could not have removed Baller from the site, he said, “What bothers me is he republished screen shots… that were unrebutted, they were internal and private. The rules of NextDoor are clear, and state they are not to disclose the discussions; they're private. He received them and made use of them. I think he did criticize her in away that subjected her to embarrassment and ridicule. He did not act in a way that was respectful. I am inclined to find that he did violate the ordinance in several ways.”
Robb was particularly troubled that Baller declined at the previous meeting to name who had provided him with the screen shots of internal NextDoor corporate discussions relative to banning a member and other company information, noting it was not privileged. “It could have given this board an insight into whether he was using his public position for the private good.”
While both board members John Schrot and Sophie Fierro-Share agreed Baller should have provided the name of who gave him the screen shots, they said they felt there was nothing the board could do about it, despite Robb making a motion to compel both sides to return in 14 days with written briefs on how that was or was not behavior violating the public's trust.
Schrot said he did not think Baller's actions demonstrated intent. “But then there's the question if intent is applicable to the violation… the evidence concludes it's private information. As a city official, you have to be careful about your conduct, but I don't think his conduct was, nor was it his intent, to be unfair or dishonest or necessarily disrespectful. I think if it happens again, then we could show what his intent was.”
Fierro-Share said she felt “the conduct we have heard about is completely private, which the ethics ordinance does not govern. The ethics board should not insert itself into private behavior. I have no doubt the complainant has lost confidence in Mr. Baller...but I don't think the public has lost confidence in city government. Commissioners come and go.”
She repeatedly stated she did not feel they should be dealing with issues related to NextDoor.
The board voted 2-1, with Schrot and Fierro-Share in favor and Robb opposing, that Baller did not violate the ethics ordinance.
The ethics board will return at a future meeting to read their written opinions into the record.