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Bill Britt

Some are using a stalking horse to undermine ethics laws

Bill Britt

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By Bill Britt
Alabama Political Reporter

The greatest challenge before the Alabama State Legislature when it returns in February is not the budget, schools or Medicaid. It is the slight of hand chicanery used to undermine the State’s ethics laws.

Since the conviction of former Speaker of the House Mike Hubbard on 12 felony ethics violations, a coordinated effort has been underway to weaken those laws, with particular focus on how they identify a “principal.”

As defined in Section 36-25-1(24) a principal is, “A Person or business which employees, hires or otherwise retains a lobbyist. A principal is not a lobbyist, but is not allowed to give a thing of value.”

Among Hubbard’s felony violations was “receiving a thing of value from a principal.” In his case, Hubbard received money and/or work product from Will Brooke, Rob Burton, Jimmy Rane and investment firm Sterne Agee, all powerful business leaders or entities who employ lobbyists.

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During their testimony at Hubbard’s trial, each man tried to convince the jury they were not principals, but the 12 women and men who found Hubbard guilty of receiving a thing of value didn’t buy their reasoning.

Mere days after the Hubbard trial concluded with a quick verdict, attorneys with Maynard, Cooper and Gale were at work deconstructing it. Ted Hosp, Jay Mitchell, Peck Fox and Edward O’Neal provided an analysis, which argued that the judge, jury and prosecutors from the State’s Attorney General’s office broadly interpreted portions of the ethics laws, as related to the guilty verdict in the Hubbard case.

In their analysis, the prosecution and jury broadly interpreted the term “principal,” as well as the phrase “thing of value,” and expanded a conflict of interest beyond what they believed was the legislative definition.

Less than six months after Julius Caesar’s assassination, and in the same year as his death, Cicero wrote the last work of his life: De Officiis, or in English, On Obligations. In it he wrote, “Injustice often arises also through chicanery, that is, through an over-subtle and even fraudulent construction of the law.”

As with the Hubbard trial, individuals used deception through alternative interpretations of the law for a particular end.

Cicero also noted in On Obligations that, “we must not treat the unknown as known and too readily accept it, and he who wishes to avoid this error (as all should do) will devote both time and attention to the weighing of evidence.” In other words, don’t accept a thing on face value, dig into what is being said or dare to discover its true meaning. Cicero says, examine the facts to find the truth.

And finally, he wrote, “of all forms of injustice, none is more flagrant than that of the hypocrite who, at the very moment when he is most false, makes it his business to appear virtuous.”

Since Hubbard’s conviction, lawyers, at the behest of the business elite, are sowing confusion to weaken the ethics laws. A prime example was the “show” ethics hearing in December, when ethics commissioners Jerry Fielding, Butch Ellis and Charles Price reversed an earlier unanimous advisory opinion concerning Friends of McCalla.

On September 1, 2016, the Commission issued advisory opinion 2016-24 on the Friends of McCalla, which it believed clarified the question regarding public officials soliciting lobbyists and principals for contributions to a charitable organization, operating as a 501(c)(3) nonprofit. This opinion was used to fumigate widespread panic among Alabama’s charitable organizations, allowing lawyers for the business interests to present an over-subtle and fraudulent construction of the opinion, contrary to what was written and unanimously approved by the Ethics Commission in Friends of McCalla.

Instead of devoting time and attention to weighing evidence, Commissioners Fielding, Ellis and Price kowtowed to a band of lawyers who tricked charities into being a stalking horse for their corporate masters. Hubbard’s former criminal defense attorney, J. Mark White, appeared to be impresario over the affair while being aided by Hosp and other well-heeled attorneys who had roles in Hubbard’s case.

The original opinion in Friends of McCalla was far from ambiguous or dangerous, as former Alabama Supreme Court Justice Sue Bell Cobb claims in an Op-ed for al.com. In her opinion piece, Judge Cobb says, “I joined representatives of other nonprofits and several legal experts in telling the Commission that its initial decision [in Friends of McCalla] left many Alabama charities too frightened to ask for donations and many donors too frightened to give.” She further states, “The impact was real and potentially devastating for many entities that serve their communities, but particularly, the vulnerable and poor.”

In the McCalla opinion the commission found, “Public officials and employees and their families are permitted to solicit donations to Friends of McCalla from principals as long as the purpose for doing so is to benefit the public, and as long as funds raised will not provide any personal gain to the public official, public employee, their family or a business with which they are associated. If they are members of the Board, they may solicit on Friends of McCalla’s behalf, unless they are paid for Board service or derive any other personal gain from service.”

What is so dire in this opinion that would inspire the former Chief Justice to opine on al.com about its unintended consequences?

Cobb chooses an interesting example of a police officer’s wife seeking a charitable contribution from the Alabama Farmers Federation. “The wife would be in trouble not because of any coercion on her part or because the Farmers Federation needed a favor from the Police Department. She would be in trouble simply because the Farmers Federation has a lobbyist, and she is the spouse of a public employee.”

Cobb continues saying, “Likewise, the Farmers Federation, unwittingly, could be in trouble, if it gave the donation, just by virtue of the person who made the request.”

But there was never a threat to charities. Friends of McCalla opinion is very clear.

What the verdict in the Hubbard case achieved is that special interests like ALFA, the Business Council of Alabama (BCA) and others can no longer sit in the Speaker’s office like BCA Chief Canary and oversee legislation. No longer can business owners pay a lawmaker $10,000 a month for favors.

It serves us well to remember, that not only does the law say a public official cannot solicit a thing of value from a principal, but it is also illegal for a principal to give as well. The fact that none of the principals who gave Hubbard things of value were charged with that offense is unfathomable to some, but then, rounding up and convicting everyone is seldom the reality.

And so we continue to face enemies from within. As Cicero wrote, “A nation can survive its fools and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely; the traitor appears not a traitor he works secretly and unknown in the night to undermine the pillars of the city he infects the body politic so that it can no longer resist.”

If special interests or business elites are successful in weakening or doing away with the State’s ethics laws, Hubbard will be the last person prosecuted for crimes of public corruption.

As Cicero found, “A murderer is less to fear.”

Does the legislature understand this?

 

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Bill Britt

A move to reunify BCA is underway

Bill Britt

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Reconciliation efforts are underway to salvage the Business Council of Alabama after a very public split with some of its most influential members.

Those close to the negotiations speaking on background say recent talks have been productive, but there are still many details that must be agreed upon before a reunification occurs.

The forced exit of President and CEO Billy Canary earlier this month was the first step toward restoring BCA’s reputation and mending fences.

Individuals who are negotiating rapprochement are looking to restructure BCA’s governance to ensure that any future leader will not exercise the unchecked authority wielded by Canary. They also want to make BCA more equitable, fair and balanced in its representation of its members.

Beyond the mechanics of structure is the need for a strong leader who can restore not only confidence in the once powerful organization but also one who can navigate the state’s political landscape while enduring the inevitable discord that comes with change.

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There is a level of hope that an improved structure and new leadership might be in place by BCA’s summer conference, which begins August 10 at Point Clear. But even those involved in the process know it’s a tall order to fill given the short window of opportunity.

Perhaps the most significant challenge is identifying an individual who can articulate a vision for BCA, inspire confidence in its members and ensure elected officials that they are dealing with an honest broker.

There is much at stake in the upcoming legislative session, not only because it is the first year of the quadrennium, when hard tasks are generally achieved, but the 2019 session will also welcome many new legislators not necessarily in step with BCA due to a bruising primary season.

People may forgive, but they often do not forget, and there are many bridges to build.

Lawmakers will be wise to remember the warning of President Ronald Reagan, “Trust but verify.”

For a revitalizing transition to occur, a clean sweep of BCA’s leadership team is imperative, as those who served the old guard must be replaced or else it’s a false start doomed to fail.

BCA would be wise to move away from the partisan approach taken over the last eight years and look to establish relationships that favor business-friendly legislation without bright lines of division.

In business as in life, sharp breaks are sometimes required and often are inevitable, but this doesn’t have to be one of those times.

Now is an hour for wise deliberation, difficult choices and bold resolve to strengthen the entire business community and not merely to fortify the narrow interests of a few.

Over the last year, good and honest leaders called for BCA to do what was right. That fight hopefully can be put aside to now do what is best.

 

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Bill Britt

The fix was in

Bill Britt

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Montgomery Circuit Judge James Anderson’s ruling to allow out-of-state political action committees to donate to in-state campaigns without disclosing its donors through PAC-to-PAC transfers may be the legal fulcrum Democrats need to target key Republican officeholders in the state.

On Wednesday, attorney general candidate Troy King filed a lawsuit in Montgomery County Circuit Court seeking a restraining order to prevent his opponent, appointed Attorney General Steve Marshall, and his campaign from using donations it received from the Republican Attorney Generals Association (RAGA) which doesn’t disclose some of its mega-donors by using PAC-to-PAC transfers.

Judge Anderson ruled against King and dismissed the lawsuit in Marshall’s favor.

Marshall, unlike an ordinary plaintiff, wasn’t present at the hearing before Judge Anderson, which should have alerted the public that the fix was already in.

The State’s Ethics Commission will likely weigh-in on King’s question soon— finding that RAGA’s actions were unlawful—but Thursday’s judgment holds for now, with no consequences for Marshall, win or lose.

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In 2010, the state’s newly minted Republican supermajority outlawed PAC-to-PAC transfers as part of its effort to show voters that there was a new day in Montgomery politics.

Since 2010, both Republicans and Democrats have found ways to circumvent FPCA restrictions, but until Thursday, there wasn’t a court ruling that opened a flooded-gate to renew PAC-to-PAC campaigns using outside interest groups.

Republican conservatives who believe that undisclosed donors shouldn’t control the state’s election process through hidden contributions should worry.

Is it now legal for pro-abortion groups to finance judicial races with stealth campaign donations to defeat pro-life candidates like Supreme Court Justices like Tom Parker?

What about Gov. Kay Ivey? Is it now legal for The Democratic Governors Association (DGA) to upend her campaign with hidden contributions to her rival, Tuscaloosa Mayor Walt Maddox?

Ethic Commission Executive Director Tom Albritton has all but definitively stated that RAGA’s contributions are illegal, but it’s too little too late for this election.

Perhaps none of this matters because it seems that many of the Republicans who passed these bans in 2010, don’t seem to honestly believe in them or any of the ethics reforms that they once championed.

So once again, it’s winning, not the law, that matters, or as a prominent Montgomery attorney said, “When you have a Democrat judge, a Democrat lawyer and a Democrat attorney general what else did you expect?”

More, I guess.

 

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Bill Britt

Opinion | BCA takes out the trash, finally

Bill Britt

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In a last-ditch effort to save the Business Council of Alabama from the dung heap of political obscurity, President and CEO Billy Canary was pushed out of the business association late last Friday after he waged an ugly and protracted battle to remain in power.

Canary’s fight to keep his job has left the once powerful business interests a hollow and factored alliance with an uncertain future. He didn’t care if he destroyed BCA; it was all about his ambitions.

For years, Canary, along with now-convicted felon former Speaker of the House Mike Hubbard and former Gov. Bob Riley, reigned over an unparalleled orgy of greed and corruption.

Canary, Hubbard and Riley’s perverse domination of the state’s political landscape was supreme, and even now, the tentacles of their profiteering are evident from the Capitol to the State House and beyond.

Even during this election cycle, Canary has used BCA’s political arm, Progress PAC, to back disreputable candidates who seek to overturn the state ethics laws that convicted Hubbard, advocate for so-called education reform that profits Riley’s business interests and to stall efforts to create a statewide lottery in favor of gambling concessions for the Poarch Band of Creek Indians.

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During Hubbard’s last years in office, PCI Vice Chair Robbie McGhee joined forces with Hubbard, in hopes of exercising more sway over Republican legislators. Over the previous year, he coupled the tribe to Canary with the same end in mind. McGhee, who faces a reelection challenge in August, casts himself as a Hubbard-Canary protege. Even now, he tells candidates who come calling for campaign contributions, “We are BCA,” meaning the tribe, under Canary, is controlling many decisions being made at the business association.

McGee, like Hubbard and Canary, is viewed by many as a pariah in the state capital where he still hopes to further the Tribe’s gambling operations by lavishing money and entertainment on Republican lawmakers. Twice now, McGhee has chosen poorly and tarnished the Tribe’s reputation in the bargain. With McGhee’s backing, Canary gave at least $250,000.00 to appointed Attorney General Steve Marshall so that he will continue Riley’s bingo wars.

Hubbard stands convicted on 12 felony counts of using his office for personal gain and other criminal violations of the state’s Ethics Act, yet he remains free because of the corrupting influence of Canary and others of his ilk.

During Hubbard’s trial, Canary said, “I love Mike Hubbard like a brother.” He even waxed poetic, saying his friendship with Hubbard, “Blossomed like any blessing in life.”

So infectious are the remnants of their power that even after two years Hubbard remains free because Court of Criminal Appeals Justices Samuel Henry Welch, J. Elizabeth Kellum, Liles C. Burke and J. Michael Joiner will not rule on his conviction.

Canary, in a face-saving announcement, says he is taking a position as a, “senior fellow at the U.S. Chamber of Commerce,” which is a nothing job.

Canary, like Hubbard and Riley, pimped the state like a cheap whore, and now he’s busted for the user he is. He left BCA in shambles, and don’t think for a minute that the coalition that left BCA isn’t coming back just because the executive committee finally took out the trash.

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Some are using a stalking horse to undermine ethics laws

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