FAIRHOPE, Ala.— A state Supreme Court decision has put the future of two high-ranking employees in “limbo,” says Mayor Tim Kant, who opposed in recent years the City Council’s appointment of both City Administrator Gregg Mims and Assistant Police Chief Terry Sanders.

“Legally, I can make the (personnel) decisions on those two now,” Kant said after a council work session Monday, not indicating whether he planned any changes in those top jobs.

The Alabama high court case toppled widely held legal opinion about mayoral power to hire staff and might well be the latest in a spate of campaign issues lining up for next summer’s city elections, which promise to be hotly contested.

“I believe the Supreme Court got it right,” Kant said about the June opinion, which held that mayors alone have the authority to hire most city employees. “There can only be one boss.”

After a new council took office in 2008, it passed several ordinances that shifted power for hiring and firing senior staff from mayor to council, as well as creating the city administrator position.

“The law seemed to be well established,” attorney Paul Myrick said Monday about the conventional wisdom that councils could assume authority over such personnel decisions. “But anybody who has looked at the Alabama Code regarding personnel issues knows it’s less than a model of clarity. And that’s probably generous. It is a legal quagmire.”

At the Aug. 22 meeting, Myrick, who has represented the city for years on personnel issues, gave his perspective on the case’s impact, especially regarding the validity of those ordinances passed by a council seeking to assert its own power and erode the mayor’s.

He said councils have limited appointment authority, according to the decision, and are restricted to appointing a few mandatory “officers” such as clerk, treasurer and judge, and a few optional ones, such as tax assessor, police and fire chiefs.

“The mayor has the authority to appoint all other officers,” he said, but noted the council hires and fires the police chief in Fairhope, which remains unchanged by the June decision.

City’s growing pains

After Fairhope grew to a threshold population of 12,000 in 2000, some residents criticized the council for not assuming its own authority in a so-called strong council-weak mayor system. Prior to that, the mayor presided over council meetings, where he had a vote and controlled the agenda.

The council’s adoption of power-shifting ordinances after the 2008 elections responded to that criticism, according to some council members.

“Over these past few years, we had the wrong interpretation,” Council President Lonnie Mixon said Monday about the ordinances in question, noting those laws were adopted after advice from the Alabama League of Municipalities. “But there has still been some misinterpretation about what this ruling means.”

The ordinance changes were also meant to provide an ultimate appeal to the council from firing decisions by the mayor, Mixon has said.

Such appeal rights need not be invalidated, said Myrick, if the council passed a merit system for all city employees, which is authorized by Alabama statute and might include the due process requirements of state personnel law for police officers.

Kant said he opposed the creation of such a civil service system, comparing it to teacher tenure.

“We’re a right-to-work state,” said Kant, referring to Alabama’s at-will employment doctrine that allows terminations without cause or appeal.

Both Mixon and Councilman Rick Kingrea agreed with Myrick’s legal analysis that some of the ordinances they passed need revision.

“Of course, we will invalidate the ordinance that states the council can hire certain department heads and senior assistants,” Mixon said. “And we will make minor changes regarding the city administrator position to make sure it’s defined he works under the mayor.”

Such revisions could begin as early as the next council meeting, he said.

But they both disagreed with Myrick over whether the council could fire, rather than hire, employees beyond those “officers” the statute specifically authorizes it can appoint and terminate.

According to a memorandum Myrick prepared for the mayor and council, the Supreme Court case has “broader implications” than its narrow holding of mayoral appointment authority and “strongly suggests,” with few exceptions, that the “council does not have the authority to adopt ordinances that limit or replace the mayor’s authority to hire, supervise, discipline and discharge municipal officers and employees.”

Mixon said Wednesday that opinions by the ALM and City Attorney Marion “Tut” Wynne take a different view on that point.

“In talking with the League, their interpretation, which could be wrong of course, is that the council could fire any employee with a two-thirds vote, which means four of five council members,” he said. “It just makes sense that there shouldn’t just be one person, such as the mayor, who makes all final decisions for all employees.”

Kant said if the council acts on that advice and fires such an employee, he would probably challenge the action in county court.

“Otherwise employees will be suing us,” he said. “They’d be lining up to sue.”

As another job possibly put in “limbo” by the high court case, the appointed city attorney position, now held by Wynne, was added to the list by Myrick’s memo. The ordinance which gave the council the power to hire and fire that person may also be invalid, his memo states. Thus, the mayor would now have sole hiring and firing power over that job.

“I’m not sure the council wants to clean up the ordinances,” Kant said Wednesday of any possible revisions to the laws in question. “I expect it will be the next election cycle before it all gets cleaned up.”

Related high court case raises campaign issues

Complicating the ordinance revision issue, and one which itself could be campaign fodder in next year’s city races, is Kant’s relationship with Myrick and other lawyers he hired for the city, who have contributed to his election efforts.

During the past two election cycles, Myrick donated $500 to Kant’s campaign. And in 2008, the Kant campaign listed $1,105 paid to Myrick for “food,” as the purpose for the expenditure to the city’s contract attorney on personnel issues.

The Hand Arendall law firm has received the lion’s share of city legal work during Kant’s three terms. At a recent finance committee meeting, Kant said that firm’s legal fees in the long-running “Dyas Triangle” case were more than $350,000 this year alone, arguing the case needed to end. Several of the firm’s attorneys, including former U.S. Rep. Jack Edwards, have contributed to Kant’s campaign during the past three election cycles.

With a few exceptions, Myrick, like all attorneys hired for city legal work since Kant’s first term in office in 2000, was appointed by the mayor without a written contract or council approval.

Though it has not received the same amount of attention, another Supreme Court decision released in June this year held explicitly that such contracts are invalid.

That widespread and longstanding practice by the mayor of hiring lawyers on a handshake without council approval was uncovered last year by The Fairhope Courier in an award-winning series of articles. As a result, Kant said then, as did some council members, that in the future contracts with lawyers would be in writing and approved by the council in order to comply with state law.

“These two cases from the Alabama Supreme Court highlight the clear separation of powers between the executive and legislative branches of municipal government as provided for by Alabama law,” Lori Lein, ALM’s general counsel, stated in an August article in the Alabama Municipal Journal. “While the mayor has the authority to decide which warm body will be hired, the council controls the finances that will ultimately decide whether funds are available to pay that warm body when he or she reports to work.”

Kingrea, an attorney by profession and former law partner of Myrick, said Wednesday that the council will work to bring the ordinances in question into compliance with the high court case.

“We will follow the law, obviously, because we’re not above it, but neither is the mayor,” Kingrea said. “I think there can be a legitimate and civil disagreement about what the law says on some of these issues. But as for some of what the mayor says, he’s painting the council as the bad guy once again. He is clearly running hard for reelection already.”