By Sam Prickett
In a recent meeting during which two new Birmingham City Council members were appointed, councilors gave clear signals that they’re ready to take on a rewrite of the law that governs separation of powers in Birmingham’s municipal government.
Interviews with finalists for the two empty seats were peppered with questions about the Mayor-Council Act of 1955. Specifically, councilors focused on controversial changes that were made to the law in 2016, which took certain powers from the council and gave them to the mayor’s office. Undoing those changes would be a priority in 2019, councilors told applicants.
That process won’t be easy. Councilors will need to lobby state legislators to walk back changes they made recently. Perhaps more critically, the efforts could put the council at odds with Mayor Randall Woodfin, who would stand to lose significant budgeting power if the 2016 changes were undone.
History of the MCA
Before the Mayor-Council Act was approved by popular vote in a referendum on Nov. 6, 1962, Birmingham’s city government was led by a three-member commission, consisting of a president, a commissioner of public safety and a commissioner of public improvements. That structure had been in place since 1913. Before that, the government had been run by a mayor and a board of aldermen, which had started out as an eight-member body before having expanded to 18 members in 1895.
The Mayor-Council Act was amended in 2016 by two bills put forward by then-Rep. Oliver Robinson. Robinson is no longer in office; he resigned later that year and in September was sentenced to 33 months in prison after pleading guilty to charges of bribery, conspiracy, fraud and tax evasion after plotting with Drummond Coal executives to block the expansion of an EPA superfund site in north Birmingham. But the impact of his changes to the Mayor-Council Act still are being felt.
Generally, Robinson’s changes weakened the council and gave additional powers to the mayor’s office. It shortened the terms of the council’s president and president pro tempore from four years to two, and it prohibited councilors from serving on any other city board or commission during their term. As a result of the changes, the council requires the mayor’s approval to pass legislation creating, cutting or changing the responsibilities of any city department.
The changes also gave the mayor’s office two appointments each to the Birmingham-Jefferson County Transit Authority Board and to the Park and Recreation Board. Before that, the council had complete appointment power over the five-member boards. Appointment powers for other boards — the municipal planning commission, industrial development board, public building authority, airport authority, construction industry authority and commercial development authority — were split by the changes to the Mayor-Council Act, with the council retaining appointment power for a simple majority of the boards and the mayor getting to appoint the rest of the members.
Perhaps most importantly, the changes dictated that the council would require the mayor’s written approval to amend the city’s general fund budget. The changes also give the mayor the ability to “retain the services of outside counsel and other professional services” without the approval of the council.
The full text of the changes is available online through the State Legislature’s website.
Those changes were widely seen as stemming from a power struggle among members of the City Council and then-Mayor William Bell. Though Bell was not officially involved with the bill and downplayed his influence, Robinson said he had received “some input” from the mayor from “a couple of conversations.”
But most councilors said they believed the changes originated with Bell’s office, and they chafed at the fact that neither they nor the public were asked for opinions. Speaking to Weld: Birmingham’s Newspaper shortly after then-Gov. Robert Bentley signed the bill into law, District 8 Councilor Steven Hoyt expressed frustration that the council had been shut out of the amendment process.
“I wasn’t in total disagreement that there could be some changes in the Mayor-Council Act, but I thought it was something that we should sit down together and decide,” he says. “There was never that intent, I believe, to sit down collectively and talk about what is best for the city.”
Bell was voted out of office in favor of Woodfin last year, and only three councilors who were in office in 2016 are still at City Hall. The makeup of Birmingham’s city government is vastly different than it was during that power struggle, but now a new cast of characters is living with the consequences.
Calls for Change
Of the changes, the council appears most focused on its lost budgeting powers. “We don’t want to take (the mayor’s) appointment power away,” Hoyt said at a Dec. 18’s council meeting. Instead, he said, the focus is on regaining the ability to have significant impact on the budget process.
calls that lost budgeting ability “an irritant to the council.”
“The mayor proposes the budget, and the council used to react to it and make changes based upon what the council’s priorities were rather than just the mayor’s priorities,” she says. “But now, we’re just focused on the mayor’s priorities, and it’s like, ‘Well, council, hope you like it.’… We can’t even suggest new sources of revenue anymore. We used to be able to put money in the budget as a new revenue source, raise some tax or fee or something, and then you could balance the budget that way. We can’t even do that anymore. Everything requires the mayor’s approval.”
The first major instance of this, she said, came when Woodfin didn’t honor his predecessor’s promise to fund street paving. “That was one of the council’s biggest deals, the commitment of Mayor Bell that he would but $10 million a year into the budget for street paving, because that’s one of the biggest complaints that we get from our constituents is the horrible condition of the streets and sidewalks,” Abbott says. “And so, Woodfin pops in with his budget and doesn’t have any money for street paving in it. … But we couldn’t really do anything except say, ‘We’re not going to pass it.’”
Woodfin, for his part, later allocated money to pave roads from roughly $10 million in revenue generated from “being intentional about cost savings (and taking) internal measures about not reckless spending,” he told reporters in November. “We’re going to have at least 15,000 feet of sidewalk repairs, and then 12 to 15 miles of road paving with just this additional funding we have.”
But, Hoyt said, the greater concern is transparency during the budgeting process.
“I always believe that you have to choose to be transparent,” Hoyt says. “And I haven’t seen it, neither with the previous administration or with this one. I think it’s status quo. “
What Will Woodfin Do?
On the campaign trail, Woodfin was critical of the changes to the Mayor-Council Act and how they had corroded the relationship between the mayor and council’s office.
“If the mayor worked with the council, he would have told those legislators, don’t pass this bill because it will hurt the council-mayor relationship worse than what it is,” he said in an August 2017 debate. “But he (Bell) supported it, because he wanted the power taken away from them when he can’t get his way. You can’t bully City Council people and then expect them to work with you.”
He put it even more succinctly a month later. “(Bell) took power away from (the council) and thinks he can have a normal relationship with them,” he said during a Sept. 28 debate with Bell. “That is humanly impossible.”
But Woodfin has been reticent to discuss actually rolling back the changes. In November, he told reporters that his office’s only proposed changes to the act would be to add mayoral term limits. Though that proposed legislation has been drafted and sent to Montgomery via a lobbyist, Woodfin said it had not gained any traction. “I don’t think it got any movement, but that wasn’t on us,” he said.
During his campaign, Woodfin criticized the changes to the Mayor-Council Act that allow the mayor’s office to retain outside counsel without the approval of the council. But addressing that, he said, does not necessarily require legislative action.
“We shouldn’t outsource work unless there’s a conflict or complex litigation,” he says. “We have a legal department of 25, 26 lawyers. If it’s not complex litigation or a conflict, we can do that work in-house. So we phased out a lot of that external work, saving costs in the city.”
Woodfin has not publicly addressed the council’s concern with the changes to budgeting powers, but at Dec. 18’s council meeting, Hoyt alleged that Woodfin would not support a rollback. “The sitting mayor said that he would not support any iterations of change to the Mayor-Council Act,” he told finalists for the open council seats.
“I guess he’s saying, ‘Well, I didn’t create the monster. Bell is the one who did it, but I ain’t got no problems with it,’” Hoyt says. “I’m not suggesting that he’s doing anything wrong; I’m just saying that it appears he’s fine with the status quo.”
Woodfin’s office has not responded to repeated requests for his opinion on changing the Mayor-Council Act.
Further Changes
Abbott hopes that the shadow cast by Robinson’s corruption scandal will make it easier to repeal his changes. But beyond that, she says, it may be time for a complete overhaul of the act.
“It’s not like the Mayor-Council Act is a well-written piece of legislation,” she says. “If you read it, it has a lot of really peculiar things in it that no one can explain anymore.”
She points to a section that says city councilors, officers or employees cannot also work “for any person, firm or corporation operating interurban railway, street railway, gas works, electric light or power plant, heating plant, telegraph line or telephone exchange within the territorial limits of said city.”
“For the life of me, I can’t figure out why,” Abbott says. “The fact that we have this obscure language, I mean, why would you preclude anyone from running for office?”
“I do think it needs to be modified simply because of its age and simply the number of times it’s been modified and some of the peculiar things that are in it,” she says. “It does need to be updated to modern times. To have it redone in 2019 would be wonderful.”
Photo by Chris Pruitt