By Mike Odom
Staff Writer

FAIRHOPE, Ala. — Fairhope’s mayor should no longer sit on the same dais with its five-member council, a law professor said this week.

The structure of Fairhope’s mayor-council form of government changed during municipal elections in 2004.

“It’s automatic,” Daphne City Clerk David Cohen said Thursday. “It’s state law. Daphne changed at the same time Fairhope did, with the 2000 census. It’s (now) a strong council-weak mayor, system.”

By Alabama statute, when a city reaches a population of 12,000 or more, at the next election, “there shall be elected a mayor, who ... shall not sit with the council nor have a vote in its proceedings.”

A professor at Mercer University School of Law in Macon, Ga., said Monday that Alabama statute means a mayor should not physically sit with a council.

“While it’s not perfectly clear, it seems to me that on its face, the statute does not permit the mayor to vote or sit on the dais with council,” said David Hricik, who published a textbook in 2006 on statutory construction and interpretation and maintains an Internet blog on the subject. “The statute says he can’t ‘sit’ or ‘vote,’ and under principles of statutory construction, each word has to have meaning. Clearly, he can’t vote. So, ‘sit’ means more than ‘vote.’ ‘Sit’ has to mean something — it can’t be superfluous. So, literally read, he can’t sit or vote.”

Hricik said the statute has been interpreted in Alabama case law a couple of times but not on those particular terms.

The general counsel at the Alabama League of Municipalities interpreted the statute differently.

“I would not read that to prohibit the mayor from physically sitting with the council,” said Ken Smith, who is also ALM deputy director. “I’ve never had a question of whether the mayor is prohibited from sitting there, Different cities do it different ways. It would be up to the council to make a decision about that.”

Smith said the word “sit” in the statute referred to a “deliberative” sitting rather than to a “physical” sitting.

In cities with fewer than 12,000 people, the law states that the mayor shall preside over all deliberations and has a vote on the council.

“This has been a long time coming,” Council President Bob Gentle said Thursday, referring to the seating arrangement at council meetings and other changes in the relationship between the council and the mayor. “Our frame of reference has been the past, which has been a weak council-strong mayor. The changes in City Hall had been long overdue.”

After the 2004 elections, Daphne changed its seating arrangement from one where the mayor sat in the middle at the same dais with council members, from where he presided over meetings.

“At that time he had to come off the council,” Cohen said. “The mayor should attend all council meetings, but the council should sit as a body by themselves. The mayor and clerk should sit to the side.”

Cohen did not say the statute compelled that arrangement, only that was how Daphne did it. He did say the council could determine where the mayor should sit.

“If (the mayor) sits next to them, it’s not on the body or to deliberate,” he said. “(The council) can legally vote to put him wherever they want. It’s their meeting. The council is in charge.”

In Mobile, the council sits at a raised dais separate from other elected and city officials and staff.

“I think it is for the public that comes to the meeting to know that it is the council’s meeting,” Mobile City Clerk Glenda Morgan said Thursday. “The mayor is an invited guest. I don’t take his name when I take roll, and his attendance is not mentioned in the minutes.”

Morgan said the seven-member council in Mobile sits at a large semicircle table elevated from the floor, and that she sits at a table at floor level with an assistant. The mayor, city attorney and staff also sit at another table at floor level, she said.

“There is one time when the mayor sits with the council, and that is once a year when he presents the budget to them,” Morgan said. “He sits up there and can take questions. That happens once a year, but that’s not to say it will always happen in the future.”

In Fairhope, the mayor sits at one end of the table at the same dais with the five council members. The city clerk, or her assistant, also sits at that same table next to the council president, who sits in the middle. The minutes of the council meetings in Fairhope do record the mayor’s attendance.

At the March 6 City Council meeting, during an often contentious discussion following the mayor’s veto of salary hikes and council’s veto override at a February meeting, Gentle said the mayor should not be sitting at the dais with the council.

His statements followed remarks by Councilman Mike Ford who said he “didn’t want to see the city self-destruct,” according to minutes of the meeting. “We need to meet and let it all hang out.”

The minutes state that Gentle agreed the council should meet to “air out” certain issues, and that they should all get together to do so.

“He held up pages of the Code of Alabama (including the one in question) and stated we all need to know these,” the minutes state. The assistant city clerk was asked to make copies of the documents and put in the council members’ boxes and give a copy to the mayor. He told Council member Ford that “when we sit down together, we will discuss the Code.”

Gentle said after he was elected council president following the 2004 elections, he led an effort for incremental changes regarding how the council was governed and its relationship with the mayor.

“It was a free-for-all,” he said regarding where council members and the mayor sat and how meetings were run. “One time I found the mayor sitting next to me. He had just moved over one seat. Slowly, but surely, I moved him to the end. The next move is off the dais.”

Gentle said another change was to eliminate “indirect voting,” requiring that all votes be recorded by either voice or hand, so the minutes could reflect who voted for what.

Neither Mayor Tim Kant nor City Attorney Marion “Tut” Wynne responded to a request for comment for this story.

Councilwoman Debbie Quinn said she thinks the mayor may be able, technically, to sit with the council.

“But philosophically, I don’t think the mayor should,” she said. “The city’s form of government is a mirror image of the state and federal form of government. (Neither) the governor nor the president sits with their deliberating body. I think with them sitting separately places more focus on the council, which is the body that is in session and making policy at that time.”

She said that Saraland’s mayor sits on the front row of the audience and makes his statements to the council, not to the audience.

“It’s not about our fighting over this,” Gentle said. “It’s a matter of law. It’s not about me, it’s the law. There is a push regarding this, and probably before the end of this term, the mayor will be sitting in a different place.”

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