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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

Opinion | Can Alabama’s one-party system deliver for all the people?

Bill Britt

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Alabama is a one-party state.

For 136 years, the Democratic Party was the sole governing body which ruled the state under a one-party system. Voters switched sides in 2010, and now there is one-party control by Republicans.

Of the many problems created by a one-party system are the elimination of checks and balances, disregard for the minority population, a tendency for tolerating corruption within the controlling ranks and ignoring best practices because they may be ideas that come from the opposition.

Alabama is in dire need of men and women in positions of political power and influence who can see beyond the second ripple in the pond and who will do what is right, not based on party, but a deep abiding loyalty to our state.

Far too often policy items are ill-conceived, half-baked-by-products of some other state’s solutions or a national narrative that isn’t in the best interest of the people of our state.

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Best policy is written using fact-based information tailored to the needs of the state.

As lawmakers gear up for the 2019 Legislative Session, it might be fair to ask, “What do in-coming Republican lawmakers stand for today?”

One freshman legislator recently said that he is coming to Montgomery to help President Trump build the wall between the U.S. and Mexico. Far be it from me to question the gentleman’s motivation or IQ, but if I’m correct, the state Legislature does not have any say over a border wall, unless he thinks we need one in Mobile.

We have some excellent women and men at the State House, but there are a few who have no business deciding what’s for lunch, much less what is best for the people.

The state has many challenges which include weak income growth which is only improving because the national economy is rolling along, prisons that are a disgrace and under federal lawsuits, an infrastructure which is crumbling and self-dealing that is on the rise.

Republicans, like the Democrats before them, have not adequately addressed these systemic problems because with one-party rule, no one is pushing them to do better.

Perhaps the lack of real change is understandable given that for six of the last eight years, the Republican-led government was controlled by a delusional governor and a crooked Speaker of the House.

Former Speaker Mike Hubbard is going to prison, Gov. Robert Bentley is out of office and still out of his mind, so going forward, the state will know if Republicans can actually lead.

Republicans have a chance to lead; will they?

Without a strong opposition party, Republicans, like Democrats of the past, have no reason to compromise or build a coalition between the two parties. Therefore, in many instances, what is best for the state is hampered by groupthink or a slavish devotion to a national party orthodoxy that offers scant solutions to Alabama’s most pressing problems.

The state’s voting population is arguably at 60/40, with Republicans holding a commanding majority over Democrats as evident by the state’s last general election.

In his essay “Party dominance ‘theory’: Of what value?” Raymond Suttner notes, “The notion of a dominant party, usually described by those who deploy the concept, as a theory or a system, refers to a category of parties/political organizations that have successively won election victories and whose future defeat cannot be envisaged or is unlikely for the foreseeable future.”

Republicans occupy all 29 statewide offices and control more than two-thirds of both the House and the Senate; Alabama is a one-party state.

If the state succeeds, Republicans can take credit. If it continues near the bottom in every meaningful measure of success, then they should be held accountable.

One-party government is fraught with problems, not the less of which is a failure to deliver good government for all the people because they don’t have to worry about reelection.

Alabama should expect more, but do we?

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Bill Britt

Opinion | Public corruption unpunished, public left in the dark

Bill Britt

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Two former state public officials appear to be receiving extraordinary leniency, and the public should demand to know why.

In one case, former Sumter County Sheriff Tyrone Clark pleaded guilty to eight criminal charges including ethics violations and drug charges. However, District Attorney Greg Griggers who oversaw the investigation announced after Clark’s plea that he didn’t want to see the former sheriff go to prison. “It was never my goal to send Tyrone Clark to prison,” said Griggers.

Grant Culliver, a former top official at the Alabama Department of Corrections, is being allowed to retire after an investigation into allegations of misconduct. The Alabama Ethics Commission, the Department of Corrections and the Attorney General’s Office refuses to acknowledge publicly what the inquiry uncovered.

In both instances, the public is being denied a full accounting of why these high-ranking government employees are being shown preferential treatment. It is also becoming evident that there is no appetite to punish office holders or hold them publicly accountable for misconduct.

These two cases are just a small sampling of how public officials are being given a pass under Attorney General Steve Marshall.

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Marshall has no real interest in prosecuting public corruption which is evident by his firing of Chief Prosecutor Matt Hart.

It is estimated that nearly two dozen public corruption investigations are languishing after Hart’s firing. Perhaps more egregiously, Marshall, according to several well-placed sources still inside the AG’s office, has denied subpoenas, withheld vital documents and generally hampered investigations that involve state lawmakers and business leaders.

More troubling, Marshall is not only compromised by his debt to his political donors but also by those in his office that have critical knowledge about his personal conduct.

As one source close to Marshall explained, “Steve is a dark character with a lot to hide.”

Under former attorneys general, Clark and Culliver would have been treated like any other individual accused of misconduct, but Marshall is side-stepping both cases.

It is entirely within the attorney general’s authority to take control of Clark’s case, as well as revealing Culliver investigations, but Marshall is doing neither.

Culliver, who served as associate commissioner for operations at the Department of Corrections, is being allowed to quietly retire without the public ever knowing what the investigation uncovered.

Clark confessed to numerous crimes including two counts of unlawful employment of county inmates, three counts of ethics violations for using his office for personal gain, one first-degree count of promoting prison contraband, another second-degree count of promoting prison contraband and a count of conspiracy to distribute a controlled substance.

The county DA wants him to walk free.

Former Sumter County sheriff pleads guilty to criminal ethics, drug charges

Marshall, with his appointment by disgraced Gov. Robert Bentley and his subsequent election, has ushered in an era where public officials are free to do as they please without fear of prosecution as long as it is in Marshall or his handler’s interest.

Marshall also serves as co-chair of the Ethics Reform and Clarification Commission which is rewriting the State’s Ethics Act to ensure that convicted felon former Speaker of the House Mike Hubbard is the last high-ranking political figure ever to be punished by the once championed “toughest in the nations” ethics laws.

Both Clark and Culliver were paid with state tax-dollars and should be accountable to the citizens of our state. Clark’s crimes are clear and he should be punished to the fullest extent of the law because, not only did he break the law, he violated public trust.

Culliver, it appears, did something to warrant a forced retirement. He, too, was paid by tax-payers who have a right to know what he did.

The public should demand more, Gov. Kay Ivey should intervene, but for now, there is little hope for equal justice under the law as dispensed by the likes of Marshall.

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Bill Britt

Opinion | In the arena

Bill Britt

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Alabama Political Reporter does one thing: it covers politics, more specifically state politics. Along with our news coverage, we publish opinions about issues facing the state. We do include the state’s congressional delegation in D.C., but that is limited in scope.

As for APR’s opinion columns, we err on the side of free speech. As our nations first president, George Washington, said, “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.”

APR has two categories of opinions, feature opinions, which are ones we solicit, and guest views, which are those provided to us by individuals with political credentials or expertise that warrant giving their ideas space in our publication.

At APR, every opinion column has the name of the author and their contact information.

We don’t feel it necessary to affix a disclaimer to every opinion piece saying this material is solely the opinion of the writer and does not reflect the opinion of APR. We think our readers are smart enough to know that already. However, due to the rapid response of the internet, people sometimes do confuse what is an individual’s opinion and APR’s willingness to support free speech.

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On occasion, our contributors and columnists wander off into national politics. As editor-in-chief, I cringe on those days when opinion columnist focus on President Trump, Sharia Law, Supreme Court nominations or other national hysteria. Not because it is unimportant but because it is not our core mission, and it enflames passions that have little to do with good state government.

When we first envisioned APR, it was with an understanding that there was little we could do to change Washington or national politics. What we saw was an opportunity to do good by reporting on matters facing the state. If it holds that all politics is local, then dogged coverage of state issues might result in better local policies and governance.

When APR remains focused on Legislative accountability, fiscal responsibility, public corruption and those things that directly affect the lives of our state’s citizens, we are most relevant. However, when we stray into national hot-button issues already beaten to death on cable news, we enter fights that are unwinnable and distract from the primary mission.

In an era when even cold facts make people angry or are greeted by alternative ones, it should come as no great surprise that opinions often irritate and cause consternation.

APR doesn’t print opinion columns merely to make anyone mad but to perhaps cause us all to think.

As President John F. Kennedy said, “Too often we enjoy the comfort of opinion without the discomfort of thought.”

Thinking is a tough business, especially in today’s political climate where much of the civic conversation is based on entrenched political identity and not necessarily on sound reasoning. On the right and left, there is an established dogma that labels competing ideas as wrong and even evil. But these national party convictions do not always translate to sound state government policy.

As a news organization, APR does not take particular positions on issues. The closest we come to an official stance on any given subject is when I, as editor-in-chief, offer an opinion, but even then it is not ex cathedra.

APR’s mission is simple, to inform, educate and alert the public on issues facing our state. When we stay true to that edict, we succeed. When we do not, we fall short of our purpose. There are times when we as a news organization must call to action those who care about good government – that is the job of our opinion page. Sometimes, we do so nobly, other times not so much.

As President Theodore Roosevelt wrote, “It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena.”

APR and its writers and opinion columnists are women and men who have chosen to enter the arena. We are a small band of committed individuals working hard to bring you news and opinions that will promote good government here in Alabama. That is our job.

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Bill Britt

Opinion | Get Hart

Bill Britt

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Years of political pressure from shady defense attorneys and crooked lawmakers culminated last week in the firing of Special Prosecution Division Chief Matt Hart.

Gov. Robert Bentley’s appointed attorney general, Steve Marshall, delivered the blow just 13 days after being elected attorney general, but the move against Hart was orchestrated by some of the state’s most powerful political figures.

Make no mistake, Hart’s firing was no less than a political coup de grâce by those who operate most efficaciously in the dark corners of politics.

Hart’s removal serves as punishment not only for prosecuting some of the state’s most influential men, it is also part of a broad scheme to allow those who are currently under investigation to walk free.

There should be an immediate and thorough federal investigation into Hart’s termination as well as a joint legislative committee created to conduct an inquiry with public hearings. A former senator, such as Dick Brewbaker or Gerald Dial, should be appointed to oversee the joint committee to eliminate political chicanery. Perhaps, more importantly, Gov. Kay Ivey should name a special prosecutor working under Montgomery District Attorney Darryl Bailey to investigate the matter.

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For nearly two decades, Hart served as a widely respected career prosecutor who was once a hero of state Republicans when he successfully convicted dozens of high-profile Democrats, but that changed when he turned his sights onto corrupt Republicans after their victory in 2010.

When Hart began investigating Republican Speaker of the House Mike Hubbard in 2011, he immediately went from a conservative champion to a political pariah who must be stopped by any means.

Under oath during a July deposition, Bentley testified that lawmakers, attorneys and a major Republican donor, on several occasions, asked him to intervene in the Hubbard case by appointing a special prosecutor to replace Hart.

The goal was to appoint a special prosecutor who would remove Hart and launch an investigation to discredit him personally and the underlying case against Hubbard.

Deposition: Bentley was pressured by lawmakers, attorneys, major donors to upend Hubbard trial

After Hubbard’s conviction, Bentley and his alleged girlfriend, Rebekah Caldwell Mason, increasingly paranoid, believed Hart was coming after them which led to Bentley appointing Marshall to attorney general with the expressed agreement that he would investigate Hart.

Marshall has publicly denied this allegation, but those with direct knowledge of the quid pro quo may soon go on the record.

While under questioning in the wrongful termination lawsuit filed by former Alabama Law Enforcement Agency Secretary Spencer Collier, Bentley testified that Great Southern Wood owner and Republican super-donor, Jimmy Rane, approached him on three different occasions about appointing a special prosecutor.

Additionally, Rob Riley, son of former Gov. Bob Riley and a Hubbard attorney, also contacted Bentley about opening an investigation into Hart and acting Attorney General Van Davis. Hubbard’s other attorneys, Augusta Dowd and Lance Bell, also met with Bentley about replacing Hart as Bentley swore under oath. Bentley conveniently could not recall the sitting legislators who pushed him to upend the Hubbard prosecution but did admit that all these individuals shared a common goal to get Hart.

Up until his firing last Monday, Hart was overseeing dozens of investigations believed to be targeting business elites, lawmakers and other public officials, but a swift ax ended those probes.

If there is a shred of justice left in the state of Alabama, a full hearing into Hart’s firing will be conducted immediately.

Those who care about the rule of law must now demand that Gov. Kay Ivey, the Legislature and law enforcement act decisively to ensure that those who perpetrated this coup are held accountable. If Gov. Ivey, the Legislature and law enforcement fail to act, then all hope for law and order is lost here in Alabama because those who got Hart can now get anyone.

 

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Some are using a stalking horse to undermine ethics laws

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