In a contentious Birmingham City Council meeting Tuesday, splits between council members and Mayor William Bell spilled again into the public, this time over a $2.5 million expenditure by the mayor’s office, apparently without council approval to settle a lawsuit by a contractor, and the controversial Amendment 14 to the Alabama Constitution, which will come before voters next week.
The first issue was a check for $2,581,714.16 written as a “settlement in CW Woods v. [City of Birmingham],” a case that a jury decided last year. Chris Woods, owner of CW Woods, a contracting company, filed a civil suit against the city after being terminated from three major projects: the West Police Precinct, the Fountain Heights Recreation Center and the Negro League Museum.
A Jefferson County jury awarded Woods $3.5 million on September 23, 2015. Exactly one year later, a check was issued by the mayor’s office.
On Tuesday several members of the council asserted that they were not made aware of this expenditure before the money was spent. Council President Johnathan Austin asked members of the law department to explain how the check was authorized without the approval of five council members, which according to city code, must happen with any expenditure over $10,000.
“I’m told that in order for a city to settle a lawsuit there has to be five signatures by the council. Is that correct?” Austin asked the law department.
“Yes, sir,” said Birmingham City Attorney Thomas Bentley. “That is the process we follow if the settlement is in the amount that is in excess of the mayor’s exclusive authority then we will present the settlement to the city council for any five or the first five to sign it.”
Tracy Roberts, an assistant city attorney, agreed, but when pushed further by councilors, Bentley said there is a difference between a settlement and a judgment granted by the courts.
“We don’t do that if the resolution of the case is not by settlement,” Bentley said. “The resolution of the case is because the court has ordered as a result of a verdict or a result of a court order that the case is adjudicated against us, that is not something we bring to you.”
A copy of the expenditure in question states the $2.5 million was for a “settlement,” a point which councilors repeatedly brought up during the tense exchange. Councilor Steven Hoyt directed his questions to Roberts, but was cut off by Jarvis Patton, the mayor’s chief of operations, speaking on behalf of Bell who had left the chambers moments before.
“Mr. Bentley will be answering the questions,” Patton said.
Bentley continued for several minutes about the difference between a settlement and a judgment handed down by the courts. The councilors continued to press him, citing city codes that authorize the council to approve such spending.
Section 2-3-27 of the city code states that “The city attorney shall have the authority to compromise, settle or to consent to judgment therein without any approval other than his or her own, in an amount not exceeding $5,000, and with his or her approval and that of the mayor, in an amount not exceeding $10,000, and with the approval of the mayor and any five members of the city council in any amount; provided, however, that a reasonable effort is made to notify all council members of the terms of said settlement in excess of $10,000.”
Hoyt asked if it is the responsibility of the law department to inform the councilors that the expenditure has taken place.
Bentley replied that expenditures are presented to the council in “the blue book.”
Seemingly unsatisfied with what he called “asinine answers to concrete questions,” Hoyt continued to ask if the council should be made aware of the judgments levied against the city and the money that is handed out as a result.
“I don’t know if we do that,” Bentley responded.
Patton then told Bentley to “take a seat,” and instructed the law department not to answer any more of the council’s questions.
“Where is it in the law that allows the processing of checks when we get a judgment from the court that relinquishes the responsibilities that are outlined in the city code?” Austin asked.
“I’m not going to allow you to continue to badger the law department,” Patton snapped.
Austin cited section 8.02 of the Birmingham Mayor-Council Act, which states, “The mayor shall have the right to take part in the discussion of all matters coming before the council, and the directors and other officers shall be entitled to take part in all discussions of the council relating to their respective offices, departments or agencies.”
Councilor Lashunda Scales took the floor and asked how the the council can effectively do their job if the law department is not allowed to advise them. “If you can’t speak to the law department so that the council can be in compliance, then how do you comply with the law? You can’t,” Scales said. “That’s the unfortunate reality of where we’ve come as a city that when we’re trying to do city business as city council members we are told that we are getting off into the mayor’s business. It’s not the mayor’s business when we are talking to the law department.”
Scales said this is why legislators in Montgomery are seeking to usurp Birmingham’s governing body and to pass legislation that would “take power away from Birmingham,” referring to Amendment 14, which the council has unanimously opposed.
“We’re being bamboozled! Hoodwinked!” Hoyt said during Tuesday’s contentious discussion surrounding Amendment 14, which will be on statewide ballots on November 8.
Hoyt was referring to the proposed piece of legislation that would legitimize a number of bills that were previously passed “in a way that does not comply with Alabama law,” according to Hoyt and other opponents of the legislation. The council unanimously spoke out against the amendment.
“But where are the cameras?” Hoyt asked, pointing toward the back of the chambers to the vacant press area, where TV news cameras are typically set up. “This is important and there is not a single camera here today… It’s by design that the legislators [who support the amendment] didn’t come and talk to the council because they know what we would say.”
Proponents say the amendment is designed to retroactively apply the Budget Isolation Resolution (BIR) to local laws passed before this year’s election day. As it stands, the Alabama legislature requires a three-fifths supermajority for bills passed prior to budget approval. However, the legislature had previously been passing BIRs with fewer legislators who were present and voting. Perhaps most important to residents of Jefferson County is the one-cent sales tax that had been in effect before being struck down in 2015 when Jefferson County Circuit Court Judge Michael Graffeo found it was passed using this form of BIR voting.
Rep. John Rogers, who is strongly opposed to the bill, took the podium at the council meeting to explain why he does not support the proposed amendment. “You cannot pass legislation to override a sitting judge,” Rogers said. “The only guarantee in this bill is that the money would go to the general fund of the county and then to the legislators. I’m the only one fighting this because I think it’s wrong to take school money from the kids.”
Rogers also pointed out that the legislators would each get “$120,000 a year, every year” for “pet projects” in their districts.
Rep. Oliver Robinson said that if the amendment fails, up to 700 bills could potentially be voided. Rogers believes the statute of limitations for most of those bills has expired and the number of bills that could be impacted is closer to two.
“Amendment 14 changes the brick and mortar for the schools and transfers that into the general fund for the county. Basically that’s what it does,” Councilor Sheila Tyson said. “It gives the county $36 million. It gives the legislators $3.6 million. It would give the school system $18 million. But it says, it would be divided by the population of the school.
“The way Birmingham schools are losing population, we might not get the $4 million dollars we get every year… That takes it up to about $58 million dollars. There’s only $60 million we’re talking about. It says ‘if available.’ Those two words means transit might get nothing. And the zoo might get nothing.”
During the 45-minute discussion, the councilors all expressed their displeasure with the amendment they believe would take funding away from Birmingham schools and other important projects, including redeveloping the city’s transit system.
Austin asked the mayor three times if he supported or opposed the bill. Bell sat silently staring down at his phone. “There’s your answer,” Austin said to those in attendance.
“I won’t sit here and have councilors put words in my mouth,” Bell retorted. He did not clarify whether he supported or opposed the amendment, but he did point out that he was opposed to a previous bill that allowed the one-cent sales tax to be used by the county to pay back the bond debt. “If you got the power, you don’t concede the power. The finances are the power for us moving forward,” Bell said. He declined to comment further.