Commission disagrees on new code of conduct

By Grace Lovins

Birmingham commissioners shot down a proposed code of conduct for commissioners during their meeting on Monday, July 11, sending it back to the drawing board with staff.

The creation of a code of conduct has been in progress since the beginning of the year after the commission discussed having a code in January and February, but Monday night’s proposal was sent back for work to presumably begin again.

A code of conduct was envisioned as a guideline for commissioners to delineate the role of commissioners so that they do not overstep their authority and to encourage civil behavior at public meetings, two problems that have arisen in recent years.

The document presented for approval Monday outlined the roles and responsibility of the commission, as well as a list of things individual commissioners could not do, such as directing the activities of staff and the various boards and committees appointed by the commission.

The proposed code also spelled out how commissioners are to interact with each other both in private and at public meetings to avoid insulting and disparaging comments or bullying of others.

Also addressed by the conduct code was ex parte contact with citizen and business interests in the city, directing commissioners to avoid such situations and to report them to the whole of the commission.

Penalties for violating the code of conduct could include reprimand or censure by the whole of the commission or removal from office as provided under state law.

Questions were raised regarding the language of the newly written code that had the potential to pose an issue for the commission’s operations. Multiple commissioners expressed concern over the grammar and rhetoric used throughout the draft that, if approved, could bind commissioners to a code that could disrupt current practices.

Commissioner Andrew Haig noted that, at the beginning of the draft, the code states that commissioners shall refrain from using their position to influence the deliberations or outcomes of boards, committees and task force proceedings. But, he said, multiple commissioners also hold positions on boards and committees.

Haig was advised by city attorney Mary Kucharek and assistant city manager Jana Ecker that the point did not apply to boards that were codified in city code, which are set-up to have a member of the commission sitting on the board. Because those particular boards are codified, the commissioner serving as a board member is given the ability to comment on things and cast a vote. The reference in the proposed code of conduct referred to commissioners attempting to influence boards or committees on which they did not sit.

Commissioner Clinton Baller turned attention to the use of “advocate” and “advocacy” throughout the code. A drafted section of the code pertaining to commissioner conduct states that city commissioners should strive to act as a decision maker, not as an advocate. Baller took issue with the point, noting that the two often go hand-in-hand.

“I have advocated for many things on this commission and I don’t intend to stop. I think everyone sitting here has advocated for things,” Baller said. “Let’s start with the basics: We are at-large representatives of the people of this city. We were elected, some of us were elected for a reason, and we’re legislators and that’s what legislators do. … I don’t think we should have a code of conduct that says or even hints that that’s wrong.”

Along with ‘advocacy’, Baller and other commissioners noted confusion when it came to disclosure of ex parte communications, or communications and encounters that commissioners have outside of the legislative body.

The proposed code of conduct states that if a commissioner is exposed to information or evidence about a pending matter outside of a public hearing, the information or evidence, as well as contacts with constituents or applicants, has to be disclosed during the public hearing. Additionally, the mayor is required to ask each commissioner to disclose any ex parte communication.

Kucharek defended the written section stating its intention is transparency. “What’s important about section C is that anytime there is a matter before the commission that you have had ex parte communications with a person who’s interested in a particular subject before you, that's being shared with your fellow commissioners,” Kucharek said.

No action was taken by the commission to approve the draft, and staff will work on revisions.