The Birmingham City Council may soon start making new appointments to city boards and agencies before incumbents’ terms are up, thanks to a newfound power several councilors appear eager to use.
The council previously had waited until after board members’ terms had expired to appoint their successor. In fact, several councilors, including Council President William Parker and District 8 Councilor Steven Hoyt, appeared to believe that was the law, only discovering that it wasn’t when Parker attempted to delay two mayoral appointments to the Birmingham Airport Authority.
The appointees themselves weren’t the subject of the discussion Tuesday, though District 3 Councilor Valerie Abbott briefly noted that R. Ashby Pate, who will fill the Airport Authority seat held by Edgar Marx Jr., had been a Supreme Court justice of the island nation of Palau. The second appointee, Robert Earl Kelly, was an incumbent board member. Both Marx and Kelly’s terms are slated to expire Wednesday.
During Tuesday’s council meeting, Parker repeatedly insisted that the council could not appoint board members before their predecessor’s term had expired. “We’ve tried to move (up) appointments before, and it was brought to our attention that we can’t take any action until the term expires,” he said.
Members of the city’s law department assured him that this wasn’t the case.
“There is actually no legal impediment to appointing these individuals today when the term is going to expire tomorrow,” said Melissa Smiley, a lawyer for the city. “The new appointment will not be effective until that term expires. I’m not sure the situation that you’re referring to in the past. I don’t know the particular facts of those situations, but in this instance, we find no problem with you confirming the appointment today.”
Parker and Hoyt — the latter of whom initially had called the idea of early appointments “opening Pandora’s box” — asked whether this meant they could start making appointments weeks or months early.
City attorney Nicole King told councilors that was up to them. “It’s up to the council to establish a precedent, whether it be 30 days or less, which you can do through ordinance to express these concerns.”
District 9 Councilor John Hilliard said that information “just brought a new revelation to me,” adding that he was glad to know the council had that power “at our fingertips.”
Hilliard suggested that the council could use early appointments to express displeasure with current board and agency members. “I do have problems with some of the people who have been on these boards and agencies that have not carried themselves in good character and representation of what we really want,” he said. “I have long wanted to replace them or let it be known that they would be replaced, but I refrained and decided to wait until their term expired to do it. But now that I know I can do this, I can start sending messages by appointing their successor early.”
The message that would send, he added, “is sort of like impeachment.”
The council will not have to wait long to test its power. Sixteen board and agency seats will open up before the end of the year, including positions on the Birmingham Museum of Art board, the Park and Recreation board, the Land Bank Authority, the Housing Authority Birmingham District board, and the Birmingham Planning Commission. Thirty-eight board and agency seats are already vacant.