City legal firm retained but not without debate

By Kevin Elliott

The former plaintiffs in a federal lawsuit filed in 2019 against the city of Birmingham for violating their freedom of speech rights had differing opinions on Monday, October 4 at the Birmingham City Commission meeting on whether the city should retain the law firm at the center of the case, which was approved on a 6-1 vote, with commissioner Brad Host opposing the retention motion.

The case involved now-current Birmingham City Commissioner Clinton Baller and November commission candidate David Bloom, who sued the city after being denied an opportunity to speak at a July 2019 meeting. Former city attorney Timothy Currier, then chief executive officer at Beier Howlett, advised the city commission that Bloom and Baller weren’t permitted to speak because he considered their statements to be political speech and not permitted at the meeting. The men subsequently filed a federal lawsuit against the city.

On Monday, October 4, Birmingham City Manager Tom Markus requested the city commission approve a six-year contract with Beier Howlett for legal services to retain interim city attorney Mary Kucharek, an equity partner at the firm who has represented the city for the past nine months.

Under the city’s charter, the city manager is responsible for appointing the city attorney, with the advice and consent of the city commission. Markus said a formal request for proposal process for appointing a city attorney hadn’t been done in many years. Eight firms submitted proposals, with three moving to a second round of consideration.

Markus said the recommendation was made following an extensive search and interview process, in which he found the Beier Howlett to be the most qualified and knowledgeable about city operations and issues requiring legal services. City staff, including the police chief, assistant city manager, assistant to the city manager, finance director and human resources manager were involved in selection process. Staff also made videos of the interviews and data available to city commission members for consideration.

Markus said he specifically asked Kucharek about the lawsuit, and whether she agreed with the former attorney’s decision to stop residents from speaking.

“No, I do not agree at all,” Kucharek wrote in her response. “The right to speak out against one’s government and the right to freedom of speech is the First Amendment for many reasons. The writers of the Constitution protected people’s ability to speak and think freely, most particularly, speak out against its government because prior to the Constitution, one would be tried for treason and killed for such an act.

One’s ability to speak out against their government’s opinions and actions is the cornerstone of our nation. I absolutely think and believe, and many of my colleagues agree with my opinion, that every person should have been able to speak freely and openly at that meeting. No one’s rights to speak should have been stopped.”

Baller said he was pleased with the recommendation, as he personally made the commission’s motion to authorize the contract.

“I totally support your decision, and had I been charged with making that decision I probably would have made the same decision,” Baller said to Markus.

Despite Baller’s approval, commissioner Brad Host said he couldn’t vote to approve the motion, referencing the 2019 court case.

“Your firm took away our Constitutional rights,” Host said. “The public lost total trust in that commission, and to get it back I would assume we would have done an RFP with an outside firm because the leadership and staff was in doubt.”

Host said he further arranged for the commission to have outside council control of the RFP process conducted by Markus, rather than an internal process, which he said wasn’t transparent.

Commissioner Stuart Sherman took issue with the comments.

“I find it so interesting that the commissioner who is directly effected by those comments is in full support, and an individual who was not present at the meeting is relying upon statements that were made by others to create an impression that doesn’t exist,” Sherman said. “The same person who went outside of the scope of his duties to bring in others to do the job that is prescribed by charter to our city manager.”

Sherman continued to press the issue, questioning whether Host had actually reviewed the information provided to the commission.

“This keeps happening, and I don’t understand what the problem is and why there seems to be a disconnect in understanding that as a sitting city commissioner, you have certain obligations,” Sherman said. “Between this and the continual rhetoric of dividing the community, it’s sad. It’s really sad and it’s not in the best interest of this community. Commissioner Baller laid out that he has reviewed this. We have watched the videos and watched the interviews. We have read the materials and we are very comfortable with the discussion. Our current city attorney Mary Kucharek was specifically asked to address this issue, and that’s not even sufficient. For you to bring up these types of comments during this meeting, I question whether you even read the materials.”

Commissioner Mark Nickita echoed some of Sherman’s concern. Specifically, he trumpeted the city’s successes, to which he credited present and past elected and appointed leaders.

“I find it really perplexing, this lack of recognition of the value of our team, and the depth of our team and the depth of their understanding of what we’ve done and how we are a model community,” he said. “There is a consistent view of Birmingham as stepping up and showing a high level of success and value… this idea of questioning what we have done and the value of our team, whether it's an elected part or our staff or consultants, shows an incredibly high level of naiveté.”

While Baller supported the contract, Bloom said from the audience he didn’t agree.

“The firm should have been fired on the spot and wasn’t,” Bloom said, who also noted he was personally offended by Sherman’s comments about Host and asked such speech not be tolerated. “We shouldn’t be entertaining bringing this law firm in.”

Candidate Bloom is one of seven seeking three open spots on the city council, along with Andrew Haig, Stephen Konja, Anthony Long, Elaine McLain, Katie Schafer and Lynda Schrenk.