Following a hearing on Mayor Sandy Stimpson’s lawsuit against the Mobile City Council last Friday, a Mobile County Circuit Court judge has ordered the two sides into mediation.
Judge Michael Youngpeter tapped Michael E. Upchurch to serve as the mediator in an attempt to work out differences in the suit, which seeks to stop the council from entering into contracts unilaterally.
The order comes after the two sides met in court to argue the merits of a temporary injunction to prevent the council from hiring spokeswoman Marion Steinfels. Steinfels is currently allowed to work on a voluntary basis, Youngpeter said.
Attorneys for Stimpson asked Youngpeter to grant a preliminary injunction preventing Steinfels from being paid for her work while the court decides the broader issue of whether the council has the authority to enter into employment contracts without the mayor’s approval.
Youngpeter admitted Friday he thought he’d be able to rule against Stimpson’s injunctive relief, but added he was given too many documents to read at the hearing to make a decision the same day.
Steinfels, who was terminated at Stimpson’s request in October, had recently entered into a professional services contract with the council. Stimpson earlier vetoed the contract, but councilors overrode the veto.
In the suit, Stimpson claims the council’s actions infringe on his right to appoint and contract employees to city positions, posing a larger threat to the separation of powers between the executive and legislative branches of the city.
In a brief filed Thursday, council attorney Wanda Cochran said Stimpson’s request for injunctive relief doesn’t meet legal standards. Specifically, Cochran argued Stimpson’s legal team failed to demonstrate Steinfels’ hiring would cause “immediate” and “irreparable” harm to the city. She echoed that argument Friday.
“… I never did hear in their argument what irreparable harm would be done,” Cochran said. “We don’t believe they have one.”
She singled out a portion of the mayor’s complaint discussing the council’s “attempted” hiring of Stinfels.
“I don’t know if I’ve ever seen a case where a court has enjoined an attempt to do something,” she said.
City Attorney Ricardo Woods argued the injunction would prevent the city from spending “illegal” funds.
BIll Wasden, an attorney for Stimpson, told Youngpeter that by denying the injunction, the judge would be “sanctioning” the council’s action. Youngpeter disagreed, given the injunction only sought action against one contract and one person receiving the contract.
“I have a hard time seeing irreparable harm,” Youngpeter said. “It seems to me this could be dealt with later.”
Wasden also mentioned a proposed ordinance the council plans to consider Tuesday. The ordinance refers to city contracts and would infringe on Stimpson’s right to appoint. Wasden added it would strip the mayor of his contracting powers, which makes up at least 50 percent of the authority to do so.
“It would authorize the council as the executing party on all contracts,” he said.
While the proposed ordinance didn’t move the needle all the way to Stimpson’s side, Youngpeter said it got him “closer” to ruling on the injunction.
Stimpson’s legal team called the ordinance an attempted “power grab,” but Cochran argued the intent of the ordinance is not to “disrupt or change the historical balance of the mayor’s ability to hire employees.”
“The purpose is to provide transparency in contracting,” she said. “It’s not a power grab. All contracts would have to follow guidelines.”
In court, Cochran said the council has reason to believe Stimpson entered into several contracts “without proper authority, or having not been signed by the city clerk.”
When Youngpeter asked for an example, Cochran mentioned a $400,000 settlement payment to a company from August 2017 the council only learned about in January, when it was asked to approve the expense after the fact.
“The ordinance will stop the mayor from unilaterally signing contracts,” Cochran said. “That’s what will stop it.”
Both sides cited precedent for their cases from two different rulings from Prichard in 1964 and 1978. Woods also cited precedent in a case out of Fairfield and from a state attorney general’s opinion in 2001 siding with then Mayor Bobby Bright of Montgomery.
In the Montgomery opinion, then-Attorney General Bill Pryor sided with Bright and found that the council could create the position of council aide, but the mayor was legally allowed to appoint an employee to the position.
In addition to arguing the call for injunctive relief was unnecessary, Cochran said Stimpson’s legal team has failed to recognize Steinfels is not a city employee but a contractor, and any language referring to her appointment should not apply.
“Contracts with professionals that report directly to the City Council are not city employees, are not employees in the administrative service of the city and are not subordinates of the mayor within the meaning of the Zoghby Act,” Cochran wrote in her brief. “The mayor, in ignoring the direction of the council to execute the communications consultant agreement with Steinfels in 2016, violated the Zoghby Act by attempting to characterize her as an ‘at his pleasure’ employee.”
In her brief, Cochran argued Stimpson is conflating the executive’s power to appoint with the “council’s power to contract.”
Stimpson and his attorneys have argued that if the council is legally allowed to execute the contract, it would cost the city money and possibly duplicate expenses because they could hire contractors to perform any number of tasks.
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