Board clears Commissioner of ethics violation

By: Tiffany Esshaki | Birmingham - Bloomfield Eagle | Published September 21, 2020

 Clinton Baller

Clinton Baller


BIRMINGHAM — The Birmingham Ethics Board voted 2-1 Sept. 11 to determine that City Commission member Clinton Baller was not in violation of the city’s ethics ordinance following a complaint filed by a resident in late July.

According to the ethics ordinance complaint, submitted by resident Donna Klein, Baller allegedly attempted to libel her in online forums where he used his title and letterhead as a city official.

Klein and Baller have opposing views of Birmingham political matters, and Klein alleged in her complaint that Baller had written in his own newsletter — that he publishes — accusations that she had him removed from the social media site Nextdoor over posts she didn’t agree with.

“Surprising to me was to discover that Donna Klein, a Nextdoor neighbor, seems to hold outsize sway over what goes down on Nextdoor,” Baller wrote June 18. “She has two profiles, one in Midvale and one in Torry, and she is a neighborhood ‘lead’ in both. That gives her the right to vote on reported posts. And on Nextdoor, judges are also apparently permitted to be police, so as you can see … she not only reported my post twice, but also voted to remove it, which helped lead to my banishment.”

According to emails from Nextdoor to Baller that were included in city documents, Nextdoor permanently disabled Baller’s account in late April for violating the site’s Community Guidelines on disagreements and conflict.

Klein said she has two accounts on the site Nextdoor, as she owns two homes in the city, though she said only one is a lead role. She said in her complaint to the city that she had nothing to do with Baller’s removal from the site, and the terms he used in his commentary about her like “police” and “judge” — which extended beyond the newsletter onto his website, and his public Facebook page — were inflammatory.

Baller’s attorney, Matthew Erard, responded to the complaint and said commissioners’ speech isn’t just protected by the U.S. Constitution, but the city’s ethics ordinance, as well.

“In apparently construing the distinction between private and official action to turn on the use of one’s title of office, Ms. Klein ignores the ordinance’s provided definition of the latter. For purposes of the code of ethics’ provisions, official action is limited solely to “a decision, recommendation, approval, disapproval or other action or failure to act, which involves the use of discretionary authority,” Erard wrote Aug. 23 in a motion to the Board of Ethics to issue a summary decision without a hearing, which was ultimately denied in favor of Klein’s complaint moving forward.

“Because Commissioner Baller’s self-published commentary involved only the exercise of his First Amendment rights as a citizen, rather than any power of office, his conduct cannot come under the ordinance’s scope of regulation,” Erard continued.

After hours of review, two of the Ethics Board’s three members, Sophie Fierro-Share and John Schrot, leaned into Erard’s argument. James Robb, though, voted against clearing Baller, saying he felt the actions did reach the level of an ethics violation.

Birmingham Communications Director Marianne Gamboa said the Board of Ethics members would not provide individual statements on their decision.

Baller said he’s pleased to have been cleared, but he’s troubled by the accusation and what he called an “exhausting and costly nine hours of hearing and deliberation.”

“The complaint was frivolous — an attempt to chill protected speech. I know that newsletters such as mine have not been customary among Birmingham city commissioners, but I believe I have a duty to communicate with my constituents, and if the overwhelmingly positive feedback I receive is any indication, they appreciate it,” Baller said in an email.

Though the Ethics Board did not vote that Baller was in violation, a final recommendation for action against him could yet be made to the City Commission. Klein said she’s hopeful Robb’s dissent will influence the final outcome that’s presented to the commission.

“The first two sentences (of the ethics ordinance) say ‘Public office and employment are public trusts. For the government to operate properly, each city official, employee or advisor must earn and honor the public trust by integrity and conduct,’” Klein said in an email. “Baller did not ‘honor the public trust by integrity and conduct’ by blaming me for his own errors, and he escalated his harassment of me by not acknowledging that my complaint pointed out that his allegations about me were entirely false. My Birmingham friends and neighbors who know about this are completely outraged.”

On Sept. 15, Gamboa provided the Eagle with a statement on the matter on behalf of the city.

“The city of Birmingham is committed to a fair process for determining whether conduct by city officials, employees and advisors conforms to or violates the city’s ethics ordinance. The city’s Board of Ethics has addressed the alleged violation to the ethics ordinance without delay, and with due process. After a thorough investigation, the Board of Ethics voted that Commissioner Clinton Baller did not violate the charges presented under the ethics ordinance,” the statement reads.