Code of conduct moves to workshop session

By Grace Lovins

The Birmingham City Commission on Monday, February 13, reviewed a drafted code of conduct specific to the commission, ultimately deciding to send the draft to a future workshop session.

Commissioners first reviewed a drafted code of conduct in July of last year after discussing the potential need for a code of conduct in January and February of 2022. In July, commissioners debated over advocacy and the disclosure of ex parte communication with citizen and business interests in the city. At the end of the discussion, commissioners took no action to approve the draft and sent it back to city staff for revisions.

According to city attorney Mary Kucharek, a commissioner code of conduct is very different from the code of ethics, and it is very common in other jurisdictions to have a code of conduct. Passing the code of conduct would make sure the expectations of the commission are clear, said Kucharek.

Before the commission began discussion of the document, commissioner Andrew Haig made a motion to postpone review given the recent decision to request an advisory opinion from the ethics board regarding the debacle with commissioner Brad Host, saying that it was an odd choice of date to discuss the document. “I feel as though it is currently inappropriate to have a discussion on a code of conduct when there is anything open in front of the ethics board … and it is only appropriate when their slate is clean,” Haig said.

In response, city manager Tom Markus stated it’s coming to the commission after the review by city staff was completed, not because it is tied to his request for an opinion from the ethics board on Host’s conduct. Kucharek noted that discussion of the code would not interfere with any decision or discussion for the ethics board as the chair of the ethics board ensures due process.

Although Haig’s motion to postpone discussion failed, commissioner Clinton Baller noted he had a variety of concerns with the draft, saying he was skeptical of it. “We wouldn’t be discussing this if we hadn’t experienced some offensive conduct, but that said I don’t think a code of conduct is the appropriate remedy for us and I’m definitely opposed to an elaborate, new additional enforcement mechanism,” he said.

Baller noted that if they decided to move forward with the code, they need to be very careful with dictating or prohibiting certain behaviors with an enforcement mechanism, otherwise it could create further problems.

“This code, with that enforcement mechanism, amounts to a law,” he said. Eventually, Baller suggested that the commission come up with different things that they feel should be codified, but said he felt the current draft essentially missed the mark.

He questioned whether parts of the code could be included in other documents, for instance moving a section into the ethics ordinance, but Kucharek and Markus noted that other documents aren’t specific to the city commission and set the expectations for other board or committee members in the city.

Kucharek reminded commissioners that much of the code is not already included in any other documents and it isn’t just for the current body. “There’s a number of these subsections that do not appear anywhere else. They do not appear in the ethics ordinance. They do not appear in the rules of procedure now. They’re not part of the OMA (Open Meetings Act) or Robert’s Rules,” Kucharek said. “While today, all of you may have come to realization this is how it works, there’s future commissions that need to know and understand how things work as well.”

Mayor Therese Longe proposed that the commissioners who would like to can submit written comments to Markus within the next 14 days. From there, Markus will determine a date for a workshop session to discuss the code. The commission voted 6-0 to postpone approval of the code of conduct and hold a future workshop. Commissioner Pierre Boutros was absent from the meeting.