City commissioners told to stay in their lane

By Kevin Elliott

Birmingham city commissioners seeking information from or influence on various boards and commissioners are being asked to restrict their requests and appearances under a proposed city policy presented to them at their meeting on Monday, December 13.

Birmingham City Attorney Mary Kucharek said the question was posed whether it’s advisable for city commissioners to personally attend meetings of various boards and committees of the city.

“In order to analyze this issue, we must be cognizant of not only impressions and unintended consequences of the presence of commissioners, but the Open Meetings Act as well,” she said in a memo to commissioners.

In looking at case law, court opinions and the state attorney general’s opinion on the matter, Kucharek said it’s best practice for city commissioners to refrain from attending various board and commission meetings outside of the city commission.

“When you have appointment power over those that serve on the boards, your presence carries with it the weight of your appointment powers, and your presence could be causing duress or seen as causing influence or pressure to those at these meetings,” Kucharek said, citing the attorney general’s opinion.

Kucharek drafted a resolution for the commission which she recommend be approved that sets forth a policy regarding such attendance by commissioners. Among the measures in the resolution are refraining from attending meetings in person, or in an online setting that would indicate their name or presence.

“It’s hard to be a commissioner and citizen at the same time, but when you sign up to be a commissioner, you take a step up, and you leave some of your personal freedoms and choices on the side,” Kucharek pointed out. “I think all of you take that very seriously, and it’s the blessing and the curse at the same time. It’s the honor to serve the community in this capacity, and part of the honor is you have to sacrifice and you give up some of those personal freedoms. I would think that’s hard to do, but it’s honorable and honored, at the same time.”

Some commissioners questioned how they could be better informed while adhering to the policy, as it limits interaction.

Newly-elected commissioner Andrew Haig — who was an active participant at many meetings prior to being elected — asked how best to gain extra information without being a presence.

“This tells us what not to do, but what do we do to be more informed,” Haig asked.

Birmingham City Manager Tom Markus said questions should be directed to him, at which point he can answer questions himself or direct appropriate staff. He also urged commissioners to refrain from contacting city staff directly with questions, as it can cause confusion or unintended influence on staff.

“Your role isn’t the management of the city,” Markus said. “You can ask (me) any question or send any email, and I will find out what I can. But we are all limited in time, so let the process work.”

Markus urged commissioners to be patient.

“Certain commissioners think they know who should answer the question,” Markus said. “Certain commissioners will send off a question and add all sorts of people to the list. They have no idea if that’s the staff expert or the person I would assign. So, you’re presuming you know who I would assign to answer the question. Send it to me, and that’s why I ask it be sent in an email. I have a record of it, and can respond to it or direct it to staff and have a record.”

Markus said he scheduled time during the city’s long-range planning meetings in January to discuss commission priorities.

“Collectively, you have to decide what the priorities are and what you want me to accomplish, and I will do that. But I can’t be treated with a shotgun approach to all sorts of stuff from all seven of you individually,” he said. “You have to decide amongst yourselves what the priorities of this place are and what you want me to accomplish. If you think about it, you’ll come up with a reasonable number of those things and I’ll be able to accomplish it, but I can’t be doing 100 things at the same time. You won’t get the best of me on any of them.”

Commissioner Brad Host said the policy won’t permit him to attend other board meetings, even if he wants to show his support to the board.

“I feel these boards are unappreciated and they have no connection to the city commission,” Host said.

Birmingham Mayor Therese Longe said boards could view support or participation as an attempt to influence members, and that the potential problems of that outweighs the benefits. Further, she said other board members aren’t responsible for informing city commissioners in their time outside of board activity.

Commissioners voted 5-2 to approve the policy with commissioners Host and Haig voting against it.