A federal judge this week dismissed a lawsuit by Gary Voketz seeking to force the city of Decatur to abide by a 2010 referendum that would have relegated the mayor to part-time status and required the appointment of a professional city manager.
“This result may seem unfair to Voketz and the Decatur citizens who approved a council-manager government,” wrote Abdul Kallon, U.S. district judge for the Northern District of Alabama. “From their perspective, the (city of Decatur and council members), though well-meaning, have essentially ignored the results of an election.”
City Attorney Herman Marks said the city has spent $279,884.41 in legal fees and expenses defending against the lawsuit.
What happens next is unclear, although there are three possibilities. One: Voketz could appeal the ruling. Voketz’s lawyer, Decatur attorney Carl Cole, said they are considering that route. Two: Whether or not an appeal is filed, a Decatur citizen could file a new petition and initiate a second referendum that is consistent with a 2019 state law and, if passed again, would result in a council-manager government being implemented in 2024. Three, the current mayor-council form of city government could remain as it is.
The tortured legal path to Tuesday’s order began in 2009, when Voketz started a petition pursuant to the state’s Council-Manager Act that would have made dramatic changes to a city government that now has a full-time mayor elected at-large and five council members elected in separate districts. The petition placed the issue on the April 2010 ballot, and it received a majority of the popular vote.
The form of government described in the 2010 version of the state law and triggered by the referendum would have featured a professional city manager, three district council members and two at-large council members, one of whom would serve as a part-time mayor. City officials have argued since the referendum passed that it was impossible to drop from the current five council districts to three while maintaining a Black majority in one of those districts, a change they said violated the federal Voting Rights Act.
Whether city officials were correct in that assessment remains unanswered. Tuesday’s decision was based not on the Voting Rights Act, but a change in state law.
Kallon’s order points out the City Council could have implemented the 2010 referendum in 2018. It was that year the state Legislature amended the Council-Manager Act to allow either four or six council districts, which meant the city could have honored the referendum without eliminating the city’s only Black-majority district. There was no requirement that the referendum ballot specify how many districts, or even that a referendum be held; those decisions were left to the city council.
“Thus, had time stopped in 2018, then the court would clearly be able to provide Voketz meaningful relief — an injunction ordering the (city) to implement a council-manager government with either four or six single-member districts,” Kallon wrote. “But time continued and so did the Legislature.”
In 2019, the Legislature revisited the Council-Manager Act. This latest amendment made two significant changes. First, it reimposed the referendum requirement. That was not a problem for Voketz, as a successful referendum had already been held.
Second, and critical to Kallon’s ruling, the 2019 amendment required that the language of the ballot specify whether the new government would have four or six council districts. The 2010 ballot did not include this language, and couldn’t have since only three districts were possible under the 2010 version of the law.
Cole said the city’s successful filing of a motion to dismiss based not on the Voting Rights Act — the justification the city gave for rejecting the referendum — but on an amendment to state law was revealing.
“It has absolutely nothing to do with the original defenses about protecting a majority-minority district. It makes clear that the only goal of certain city leaders was to protect their own power,” Cole said in a statement Wednesday.
Council President Paige Bibbee said she is frustrated the City Council had a window — after the passage of the 2018 amendment and before the subsequent amendment passed in June 2019 — when the council could have not only implemented the referendum, but done so while creating a sixth council district and thereby maintaining a district with a Black majority.
In a June 2018 letter to the city’s lawyers, quoted at length and approvingly by the judge, Cole pointed out the significance of the 2018 amendment and the fact that it gave the city the ability to implement the council-manager system without raising Voting Rights Act concerns.
Bibbee said she knew nothing about Cole’s letter, or about the latitude the 2018 amendment gave to the council to implement the referendum.
“If our attorneys knew, did they communicate that with the mayor? I guess my biggest question was whether the mayor was notified. If he was, did he suppress that from coming to council?” Bibbee said. “If they knew and didn’t disclose that to me, to the other council members and to the public, then that’s a problem.”
Asked for comment, Mayor Tab Bowling issued a written statement.
“The City of Decatur diligently strives to adhere to and comply with federal and state laws in the protection and preservation of the voting rights of its residents,” he wrote, followed by a one-sentence summary of Kallon’s ruling.
A separate unsigned press release from city spokeswoman Emily Long said the city fought Voketz’s lawsuit “not because of any concern about the form of government but because the City cannot knowingly take action it knows to be a violation of federal law. … The City of Decatur strives and, through this, has defended the rights of the citizens of Decatur to have their voices heard and to continue their representation on the City Council and Decatur School Board.”
Cole said that makes no sense, given that the city could have implemented the referendum in 2018 while maintaining a Black-majority district.
“They had no intention whatsoever of ever allowing this to be implemented and have spent hundreds of thousands of your dollars to prevent what the people voted on from going into effect,” Cole said. “… This was an intentional effort to deprive the people of Decatur of their constitutional right to choose their own form of government.”
While frustrated the council was not provided an opportunity to implement a council-manager government after the 2018 amendment, Bibbee said she is in favor of another referendum and thinks one is inevitable.
The 2019 amendment to the Council-Manager Act provides that a special election must be held upon submission of a petition signed by 10% of the voters in the most recent general municipal election. According to City Clerk Stacy Gilley, 8,391 people voted in the Aug. 25 election, so a petition with 840 signatures would trigger the referendum. If a majority of the voters supported the new form of government, it would take effect after the next general municipal election — in 2024.
“All it takes is 800 people to sign a petition to have another election. We can do that. The only thing I tried to avoid about that was a special election costs about $70,000,” Bibbee said.
Bibbee said she supports a council-manager government and that she voted for it in 2010.
“I know people who have already talked about initiating the petition. Will I sign it? Yes. It makes more sense for a municipality to have a city manager,” Bibbee said.
She said with each election, city employees worry their jobs depend on which candidates win. Having a professional city manager who is not as subject to political changes and who makes independent hiring decisions would provide some consistency for those employees, she said.
“It scares me that we will lose some very good directors and we will lose some very good employees. I think we’ll see a lot of good people leave because of the total uncertainty with everything changing every four years,” said Bibbee, who lost her bid for reelection.
Of the five incumbent council members, only one — Billy Jackson — will remain when the next term starts Nov. 2. Bowling faces a runoff for mayor against Butch Matthews on Oct. 6.
Jackson, like Bibbee, said he was never informed of the opportunity the council had to abide by the referendum and expand to six districts under the 2018 amendment, or of Cole’s letter to the city’s lawyers describing that opportunity.
“What’s frustrating about this administration is our mayor apparently had that letter. It’s not a choice whether or not he shares information like that, it’s an obligation,” Jackson said. “Whether we would have chosen that option or not, our citizens voted on that and the responsible thing would have been to share that and let the council make the decision on what we did with that information.”
Jackson said he generally opposes Decatur implementing a council-manager form of government because he fears the city manager would be subject to the same political forces that affect a mayor, “but I do know it is imperative that, if we don’t go to that system, the citizens choose a mayor that is capable of handling the issues at hand and a mayor that will share any and all significant information with the council and the citizens.”
Councilman Chuck Ard, who did not seek reelection, would like to see another referendum implementing the amended Council-Manager Act.
“What having a city manager does is it allows continuity even though things change. With a new council that’s coming in or a new mayor that’s coming in, you are always subject to that loss of continuity every four years,” Ard said. “A city manager allows you to avoid that, and you get someone who is versed in public government as opposed to someone who would want the opportunity to be mayor just to be mayor.”