Stimpson and the Mobile City Council look to work together despite ongoing litigation

Photo  |  Lagniappe

For months Mayor Sandy Stimpson and the Mobile City Council have been locked in mediation over a lawsuit Stimpson filed in December seeking to have the court clarify which branch of the government has the sole power to hire, fire and contract with employees.

Last week, Lagniappe talked with those on both sides of these issues to try to determine where the mayor-council relationship currently stands and where it might be going.

Over the past five months, officials have been reluctant — and in some cases, legally unable — to talk about it, but an undercurrent of disagreement has remained nonetheless. On Tuesday, May 14, it rose to the surface as the ongoing issues resulted in the council’s approval and Stimpson’s veto of 2.5-percent, cost-of-living raises for most city employees.

At issue was Stimpson’s inclusion of more than 100 employees he’s hired through appointment, rather than through the merit system and the Mobile County Personnel Board. Councilors unanimously approved a budget amendment to give more than 2,000 employees the pay hike, but stripped out those appointed employees based on legal advice from council attorney Wanda Cochran.

Stimpson later announced he would veto the budget amendment over fears the move would be challenged in court, saying the council overstepped its authority in making changes to the amendment. Administration officials believe the council cannot make changes to a budget amendment proposed by the mayor, according to the law that set up Mobile’s current form of government, known as the Zoghby Act.

Acting Chief of Staff Paul Wesch told Lagniappe he believed a citizen could sue based on those grounds.

“Budget amendments are not routine,” he said. “In a section of the Zoghby Act that authorizes a mayoral submission of a proposed budget amendment, there is no such language,” he said. “It’s our understanding and we believe the practice since the inception of the Zoghby Act that a budget amendment proposed by the mayor, off budget, so to speak … is an up or down.”

Elaborating further, Wesch said if a council had the legal authority to make changes to a budget amendment no mayor would ever submit one “because the council would have the ability to completely amend it.”

“So, no mayor would want to ever put himself in that position,” he said. “So, what Mayor Stimpson was saying was we don’t believe that their attempted amendment of the amendment has the force of law. So, if the mayor were to take any action on that, it would be subject to challenge.”

Councilman Fred Richardson said the council made changes to the proposed budget amendment on advice from Cochran because it was part of the ongoing lawsuit between the two branches of government. In addition, Richardson said, it would hurt the council’s legal position to approve raises for the non-merit, appointed employees.

“If we are arguing in a courtroom that he shouldn’t be able to do that and then we’re going to turn around and fund those employees … ,” he said.

Putting a finer point on it, Council Vice President Levon Manzie said he believes the administration would have used the raises for the appointed, or so-called Section 40 employees as leverage in court.

“I absolutely believe that they would have,” Manzie said. “And I want to stress to you all and the general public that all of this was initiated by the mayor. From this raise proposal to the disagreement we have relative to Section 40 employees.

“So why would we, particularly when we’ve been advised by counsel not to do it — and it’s such a minute number of employees…,” he added. “It’s a small group of very handsomely paid employees. So why would we do that when our attorney is telling us that’s something we shouldn’t do?”

The disagreement led to City Clerk Lisa Lambert’s removal from a list of employees with the ability to send emails to all city employees at the same time. After Lambert sent out a press release from council lauding the raises, Stimpson said he made the call to remove her all-city email abilities.

Stimpson told Lagniappe Lambert was not supposed to have the ability to send all-city emails anymore following a change in software some time ago, but somehow her email system had retained that feature. But after she sent out what Stimpson called an “inaccurate” press release, he had her access removed. As of Monday afternoon, the city had not yet restored Lambert’s ability to send emails to all city employees at once.

Section 40 employees

Stimpson’s suit mentions Section 40 employees, who are appointed to fill roles in the administration outside of the Personnel Board. The term refers to a section in the Zoghby Act that authorizes the mayor to hire outside of the merit system, but puts a $100,000-per-year salary threshold on those appointees.

Stimpson and councilors are essentially arguing over the language in the section referring to the salaries. Councilors argue Stimpson has hired staff well above the threshold, while the mayor argues it’s OK as long as the council approves it during the budget process.

A 2003 opinion from former Attorney General Bill Pryor sides with Stimpson. It states, per Zoghby, that the council must budget at least $100,000 for the salaries of the non-merit employees. Anything budgeted above that amount may be used at the discretion of the mayor.

“The number of personnel and the amount of their salaries is within the discretion of the mayor, as long as the total salary does not exceed $100,000 or the amount budgeted for these salaries by the council, if more money is budgeted,” Pryor wrote.

Richardson said Pryor’s opinion on Section 40 employees “has not been tested in court.”

“We intend to change it,” he said.

Stimpson recently submitted an updated list of these employees upon request of councilors. Lagniappe has obtained the list as well. The list includes 59 names of appointed employees. Of those 59, 11 make at or more than $100,000 per year. A previous list provided by Stimpson’s office to Lagniappe showed more than 100 such employees. The information submitted by Stimpson to Lagniappe in October of last year, shows the non-merit positions were worth about $6 million in salary. Stimpson himself has said there are more than 100 non-merit employees in his administration.

The council has now formally requested a copy of the proposed 2020 budget and its underlying documents by June 1, in order to get a better understanding of what goes into the budget and how the line-items are designed, Manzie said. Lambert, however, said it would probably be technically impossible to have that information to the council before the beginning of August because of the process of going through individual department budgets.

Other budget issues

Since the council approved the 2019 budget in September with amendments, Stimpson’s office has gone about ignoring the changes. For instance, councilors moved all of the city money going toward employees out of GulfQuest Maritime Museum of the Gulf of Mexico and cut funding to the city’s Innovation Team tasked with tackling blight.

Instead of following the budget directives, Stimpson’s office moved those employees into other departments and continued funding the work.

“The thought process was there are employees who are extremely critical to the function they were performing,” Wesch said. “You mentioned GulfQuest, let’s focus on them for a minute …. GulfQuest must stay open or the federal grants that were secured to build GulfQuest can be clawed back by (the Federal Transportation Administration). Whether the council or the citizens agree, we are convinced beyond any doubt that GulfQuest must remain open.”

Richardson said he believes what Stimpson’s office is doing is “illegal.”

It’s the council’s prerogative to make amendments to the budget during the normal budgeting process, Manzie said, and he doesn’t agree with the position Stimpson’s office is taking on the subject.

“I am not in agreement with the posture that they have about ignoring what we’ve amended,” he said. “I don’t agree with it.”

One such issue involves the board of Ladd-Peebles Stadium, which has not yet received any of the $950,000 performance contract it received from the budget approved by the council last year. The administration did offer the board $200,000, which was in line with what it received in previous budgets, but Chairwoman Ann Davis said she hasn’t signed the contract due to legal issues.

The city balked at the entire amount, city spokesman George Talbot said, because about $750,000 of it was proposed for a walking trail around the stadium. At issue for Stimpson’s office was allowing the board to contract for the work without being bound by state bid laws, Talbot said.

Manzie questioned the reasoning of Stimpson’s office, saying the Ladd board has previously been allowed to contract its own work.

“From my understanding from speaking to representatives of the Ladd board, there have been wholesale changes made to that facility, major changes, that have been led and undertaken by that board. That’s occurred since this administration has been in office and in previous administrations.”

Also at issue between the mayor and councilors is a question over the certification of the 2019 budget. Stimpson’s office has previously said the mayor had not immediately signed the budget passed by the council due to a math error. City attorney Ricardo Woods recently told councilors the budget has been signed.

Defending the delay, Wesch told Lagniappe no budget has been certified possibly in the history of the current form of government. Wesch also questioned the older language in the law referring to a mimeograph machine.

Mediation

Since December both sides have been in mediation over Stimpson’s lawsuit and it appears resolution is not close. Neither Stimpson nor members of the council would publicly admit they are ready to throw in the towel, but Wesch admitted mediation does not typically last for almost six months and short of going back to court, there won’t be anything legally binding that comes out of the process future mayors and councils can follow.

“There are actually two processes that could’ve happened short of a courtroom,” Wesch said. “One is arbitration. In that case the answer would be ‘yes,’’ but with mediation, it’s completely non-binding and is designed for the parties to reach agreements.”

Asked if the mediation is a “waste of time,” Manzie and Richardson both said they didn’t know.

“I don’t think that we’re at a position where we can say conclusively that it’s a waste of time,” Manzie said. “I do know that we’ve put forth a good-faith effort and we will continue to put forth a good-faith effort because, you know, this council didn’t initiate this litigation and we’re interested in everybody being able to do what they’re elected to do, period.”

Mayor-Council Relationship

A main complaint from councilors is the seeming unwillingness of Stimpson’s office to share information with members about decisions it makes, or the way it approaches the budget.

For example, during negotiations for the 2019 budget, Councilman John Williams repeatedly asked Stimpson and members of his administration for help with the budget to avoid making changes the mayor’s office couldn’t live with. Williams said he was given no guidance.

Manzie said he’s concerned by the administration’s unwillingness to divulge information related to successfully running the city.

“It’s a concern and I think anybody who viewed the process, particularly last year, would come to the same conclusion. We would not only have a finance committee, but a separate committee to deal specifically with the budget. Members with pertinent information from the finance department would come to meetings and sit there like knots on logs; not being responsive when we are asking legitimate questions as it relates to how this budget was composed.”

Councilors have also taken exception with the phrasing and tone Stimpson’s office uses in its statements. For instance, Manzie pointed to passages in the administration’s statement about the raises, using words like “fight” and accusing Cochran of giving bad legal advice.

“This posture that this mean old City Council is going to keep you from paying your bills and providing food for your family, but I’m going to keep chugging along,” Manzie said. “It’s just, it’s unnecessary. The posture is unnecessary, particularly when you’ve got a group — when you look at the wins this body of elected officials has cobbled together … and … it’s unnecessary because unlike many councils and mayors across this (area) that are at each other’s throats from a policy standpoint, day in and day out that has not been the case with this administration.”

In fact, Manzie and Richardson both said councilors have voted along with Stimpson way more often than not.

“I would venture to say if you go look at the voting record and look at every time we voted for something the mayor has put on the agenda, you won’t find five things this entire year that the council rejected,” Richardson said. “The mayor … doesn’t want us to vote no on nothing.”

Stimpson was positive about the relationship, given the lawsuit and mediation.

“I think we’ve done remarkably well for the last, I would say, three or four months, you know moving the ball forward, but there are some issues that become volatile just by the nature of the action, let’s say,” he said.

Stimpson seemed hopeful that once litigation is settled, the relationship will get better.

Remaining accomplishments

Even while disagreements remain over legal issues, councilors and Stimpson have similar goals, as they look toward the end of their terms in 2021. Stimpson said he’d love to see construction of the Mobile River Bridge, deepening of the shipping channel, the Three Mile Creek greenway trail and the buildout of the downtown airport, among other big ticket things.

“Now, it won’t be done by 2021, but every single one of those could have a significant step in the right direction to show that it’s going to be completed.”

Stimpson also mentioned continuing efforts to revitalize the downtown area. For instance, he said he’d like to continue to broaden entertainment districts to help energize the waterfront.

“We’d like to see that significant jump in tourists we’re hoping to see,” he said.

Manzie, whose district includes all of the downtown area, agreed with Stimpson’s goals to keep pushing for resurgence.

Manzie also pointed to continuing the capital improvement program, initiated by councilors, with Stimpson’s help.

“We have created a program, this council, working with the administration, with the CIP program, with improvements happening across the length and breadth of this city,” he said. “Name me another municipality that can make that claim at this point? So, I want to continue to see that progress happen.”

In addition, Manzie mentioned wanting to see a focus on economic development in the city, as well as the new airport.

Also, by 2021, Stimpson said he hopes to have a temporary replacement for Mardi Gras events, as plans for the redevelopment of the Civic Center take shape.

“It’s got to be done,” he said. “I’m wide open to other ideas of where we can have parties on a temporary basis. We haven’t found one and we’ve had a lot of people looking.”

Stimpson has previously proposed using an empty warehouse on the Brookley Aeroplex footprint for future Carnival festivities, at least on a temporary basis. The two developers the city will pick from for Civic Center redevelopment currently do not have plans to replace the arena where some of the larger Mardi Gras balls have taken place for years.

Building something new for Mardi Gras is “still on the table,” Stimpson said.

“It’s not off the table, but I do think it’s off the table to think we’re going to have a special venue to handle 5,000 to 6,000 people and it only be used just a handful of times a year,” Stimpson said. “I think the cost has been exposed to us. You know, this is just a tremendous amount of money and so what are our other options? There are some options.”

Wesch confirmed the Civic Center loses about $1 million per year in operating expenses. However, operating expenses are only part of the issue.

“The problem is really not the loss in operations, I don’t think anybody builds a civic center to make money,” Wesch said. “It’s the actual depreciation that has been taking place for which there is no fund.”

Richardson said he’s “not a big fan” of Stimpson’s Civic Center plan, but has refrained from making public comments about it. However, he told Lagniappe that he would not approve any plan that included apartments on the site.

“We don’t make money off that,” Richardson said. “If you bring in something the city can make money off of, I’m with you 100 percent.”

Manzie is asking that the process be more inclusive, following the revelation of members of an advisory committee working with CBRE to help pick a developer for the project.

“We need a process that’s inclusive not only of the current users of that space, but also more inclusive of the citizens of the City of Mobile,” he said. “No one from the Down the Bay area — these are areas that abut this property — nobody from Church Street East. If we’re going to make a generational decision like how do we move forward with this Civic Center property; we’ve got to make certain that the citizens most impacted and most interested are at the table.”