On November 9, the Birmingham City Council approved the hiring of Henry Sciortino as the city’s financial advisor. Sciortino, the former president and CEO of Fairmount Capital Advisors, Inc., which had advised the city for the past three years, left Fairmount this past summer after a falling out with company chairman Rodney Johnson. According to a November 7 Birmingham News article, Pennsylvania court records indicate that Sciortino filed a civil lawsuit against Fairmount and Johnson on August 3, 2004. The article stated that “Johnson filed a memorandum in opposition to the complaint,” including accusations that Sciortino was involved in “mishandling more than $500,000.” In a press conference after the council meeting, Mayor Bernard Kincaid, who believed Sciortino was not fairly represented in the story, decried the article as “the yellowest form of journalism that I can ever imagine.”
At the November 9 meeting, the council voted to rescind a resolution it had approved on August 3, which contracted with Fairmount for $240,000 as financial advisors. Councilor Joel Montgomery voted “no” each time. Then the council voted on a resolution to contract with Sciortino’s present company, Triad Capital Advisors, Inc. (for $146,666), but the resolution failed due to only three “yes” votes from the seven councilors present. [Councilors Lee Loder, Valerie Abbott, and Elias Hendricks voted "yes." Councilors Carol Reynolds and Joel Montgomery voted "no," while Councilors Carole Smitherman and Gwen Sykes abstained. It takes four votes to approve an item when only seven councilors are present.]
Councilor Abbott first questioned the Birmingham News piece during the meeting. “We certainly all saw the newspaper article, and it did raise a number of questions in all of our minds,” she said. “But we do have a contract that allows us to terminate if anything is discovered that causes us greater concerns.” She continued: “Until the lawsuit is resolved, we don’t know who’s right. And if we turn this down today we will be making a judgement on who is correct, and to me that would not be fair.” Abbott added that, in her opinion, “although interesting, [the article] did not include the entire story.”
“The most compelling argument for this is that there is a time constraint on this,” said Councilor Hendricks. “And at this point we do not need to be without a financial advisor. The financial advisor and the recommendation for a financial advisor is wholly in the purview of the financial department and the mayor. They’re the ones who use them; they’re the ones who have to be responsible for what they do.”
After the initial vote, Council President Loder appeared confused and refused to declare that the vote had failed until he could receive clarification that three votes were not a majority in this situation. He said he also wanted to give councilors the opportunity to reconsider their vote. Half an hour later, Loder called for the vote again, explaining that he now understood that a majority of four was needed when only seven councilors are present. By this time, Councilor Sykes had convened with Mayor Kincaid and Councilor Hendricks and switched her “abstain” vote to a “yes” vote.
Councilor Montgomery became livid. He told Loder that the first vote should have stood, but Loder replied that a councilor could change his or her vote at any time prior to declaration of the vote. [Loder has the option of declaring the vote, but the council can put up a motion demanding that he declare the vote.] Montgomery argued that reconsideration of a vote is the only way to ask for a vote again once a roll call vote has been taken. [Reconsideration can only be requested by the prevailing side, but there was no prevailing side on the first vote due to no clear majority.] Loder overruled Montgomery and let the second vote stand. Loder explained, that according to Roberts Rules of Order, the parliamentary procedure used by the council, Loder is authorized to retake a vote if he feels that the vote is “not clear or unrepresentative.” Loder added, “My job is to accurately reflect the will of this body. . . . I am satisfied at this time that the vote taken accurately reflects the will of this body.” Storming through the hall outside the council chambers after the meeting, Montgomery vowed to contact the district attorney that afternoon.
In an interview, Montgomery took issue with Loder’s explanation of his job as council president. “His job is not to reflect the will of the body. His job is to preside over that meeting,” said the councilor. “What he did was immoral. He stole $146,000 from the taxpayers of this city and nullified the representation of various districts up there by manipulating not only the Roberts Rules of Order, but also the process by which we deliberate up there!” Montgomery said Loder’s goal was to make sure he had the four votes needed to pass the item to hire Sciortino’s company. He expressed amazement that Loder didn’t know that four votes are needed when only seven councilors are present. “This man has been sitting on the council for four and a half years, and he doesn’t know that when you’ve got seven people up there that you need four votes for a majority?”
Montgomery continued his tirade: “He manipulated that vote; he kept going until he got the achieved outcome that the mayor of this city wanted. . . . What he [Loder] did was immoral and corrupt!” The councilor vented further: “You are circumventing the will of the majority of the councilors up there on that council if you continue to vote after you’ve already voted it down twice and you refuse to declare it. You have then taken over as dictator . . . He made a complete mockery of this system in order to achieve his desired outcome!” Montgomery contacted the state attorney general’s office, but was referred to the county’s district attorney’s office, which said the controversy was a civil matter.
At the November 9 press conference, Mayor Kincaid praised Sciortino. “Henry Sciortino is a very capable man. We have great chemistry, he has great skills, and I think he will do a great job for the city of Birmingham . . . What tainted this man is the yellowest form of journalism that I can ever imagine. [The story] reported what was in an answer to a lawsuit. He was the plaintiff. Seems to me that fair and balanced reporting would have [included] what he had in his rendering to the court as a plaintiff, and that would have balanced what had happened. And so the yellow journalism that you saw tainted this picture!” Kincaid continued in anger. “You also must realize that someone has a vested interest in this not going forward. There seem to be forces that have come together using our local media to try to derail this. Fortunately, the council saw through that.” &