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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 | Reading right, left and center

Bill Britt

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Since its inception nearly eight years ago, the Alabama Political Reporter has worked to inform, educate, alert and, on occasion, call to action its readers on a wide variety of political issues facing our state.

APR’s focus is state politics and those things that make our state better.

Along with in-depth reporting on policy, the politicos that drive it and public corruption that harms, we strive to be a marketplace for ideas across the broad spectrum of right, left and center.

In today’s hyper-polarized political environment, allowing all voices to have a say isn’t always a popular consideration. We live in a time where some people would rather have their personal beliefs confirmed than actually educate themselves on a given subject. And heaven forbid that an opinion writer should challenge a prevailing thought or party.

At APR, we test the status quo, not to be arbitrary, but to move the conversation forward. It is easy to embrace the state’s current path of mediocracy, but that is not our purpose. We report news that matters, even if it is uncomfortable or casts a less than flattering light on things.

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Like the lone pamphleteers who forged our nation, we work to shape the discourse with fact-driven reporting and provocative thought.

There are plenty of blogs and news outlets that parrot the company line.

One of our goals is to cause people to think. But thinking is hard work and can make us uncomfortable. But the news itself can cause discomfort because it makes us face unpleasant realities.

When we find that more children in Alabama are living in poverty today than in 2000, it should make us not only uncomfortable, it should call us to action.

Report: More children are living in poverty in Alabama in 2018 than in 2000

Similarly, when the state’s Ethics Commission becomes a law unto itself acting outside the bounds of statute to please a handful of special interests, good citizens and honest lawmakers should be outraged.

Opinion | Terminal corruption and its accomplices

These are issues that should know no label because poverty, corruption and its brothers are what keeps a state from prospering.

But with the growing polarization of political discourse, often the things we can change are left undone because we can’t listen over the din of noise and anger about who’s right and who’s wrong.

President Ronald Reagan said, “There is no limit to the amount of good you can do if you don’t care who gets the credit.”

Former Speaker of the United States House of Representatives Tip O’Neill said, “All politics is local,” but over the last two decades with the rise of cable news local politics became nationalized.

A Reuters Institute survey released last year found a rising polarization in news consumption in the United States.

Of those surveyed, 51 percent of left-leaning Americans trust the news while only 20 percent of right-leaning Americans say the same.

Self-identified conservatives are far more likely to say they avoid the news because “I can’t rely on news to be true,” as reported in Forbes.

Forbes also reports, “Conservatives’ skepticism is nurtured by their deep, almost exclusive, commitment to Fox News. Two-thirds of conservatives watch Fox News, and an increasing number, 19 percent, visit the ultra-right wing site Breitbart.com.”

Progressive studies show those who identify with liberals turn to CNN and MSNBC, or the New York Times, but are not as brand loyal as their counterparts.

Sadly, opinions have been so manipulated by national cable news we can’t talk about the problems facing our state with any degree of civility on the right or the left.

When hot-button issues with little relevance to the future of our state replace honest policy discourse, we are in trouble because there is no demand for a plan on how we should govern. Also, when talking-points generated by bloviating commentators pose as an actual conversation, we have no real basis from which to began to determine our course of action to improve our state.

Once there was an intellectual underpinning to conservatism as well as liberalism. Sadly today, thinking is almost a lost art in the political arena.

Alabama’s challenges are homegrown and so should be its solutions.

APR promises to remain a part of the conversation that looks to make our state even better. We will continue to look at the hard facts so that our readers can make the tough choices – be they right, left or center.

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Bill Britt

Opinion | The people have a right to know if their attorney general is a cheat

Bill Britt

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If there is a shred of integrity left at the Alabama Ethics Commission, it will immediately convene an emergency hearing to settle the issues of whether the State’s Attorney General Steve Marshall violated campaign finance laws.

For nearly three months, the commission has failed to rule on whether Marshall knowingly ignored the state’s Fair Campaign Practice Act in taking $735,000 in illegal contributions from the Republican Attorneys General Association. RAGA is not registered with the state and commingles its funds with other political action committees, masking the donors contrary to Alabama law. Ethics Commission Executive Director Tom Albritton knows Marshall’s contributions were unlawful, so does Secretary of State John Merrill, but no one is willing to act. Even Marshall himself is on the record saying the type of contributions he received from RAGA are illegal and banning such contributions was, “the only legal protection standing between Alabama voters and the reality or appearance of quid pro quo corruption.”

Perhaps the larger question for the Commission and the Alabama Republican Party is should a candidate who willingly takes illegal campaign contributions be allowed to remain on the ballot?

In the least, the voters in Alabama have a right to know if the Republican nominee for the state’s top lawyer violated the law.

The primary function of the state’s attorney general is to represent the state in legal matters, protect the people and seek out and prosecute public corruption.

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The Ethics Commission must call a special hearing to address the allegation against Marshall before the Nov. 6 election.

If the commission refuses to act, it will confirm it is merely an extension of the political corruption that plagues our state.

Ethics Director Albritton and Secretary Merrill have made it clear in statements and previous writings that Marshall’s acceptance of the RAGA funds is an unlawful act.

Merrill, in 2015, asserted out-of-state PAC contributions made to an Alabama candidate are illegal if the PAC is not fully compliant with Alabama laws which require registration and full disclosure of its donors.

RAGA is not registered in Alabama, and its donors are not immediately disclosed under Alabama law because it accepts PAC-to-PAC transfers which mask the original donors.

Secretary of State’s letter addressed out-of-state PACs meddling in Alabama elections

For his part, in June, Albritton told al.com that he had informed other campaigns that similar donations would not be legal.

Merrill and Albritton make it evident that Marshall’s acceptance of the RAGA funds is a violation of the state’s campaign finance laws.

On too many occasions, the Commission has bent to the narrow interests of well-connected individuals or the broad considerations of powerful special interests. For once, it should look to protect the state’s voters from an attorney general who would skirt campaign laws for personal gain.

The right remedy in the Marshall situation lies with the Alabama Republican Party, which is responsible for pursuing such violations and taking appropriate action, but the so-called party of law and order has taken a pass on the Marshall fiasco, choosing to remain silent.

Republican Party Chair Terry Lathan and the Executive Committee could end the charade by immediately moving not to certify Marshall’s votes in the upcoming general election. Of course, this would mean conceding the race to Democrat Joe Siegelman. This might not be palatable, but how much more bitter is a win by cheating?

Since the party will not act on the issue, it falls to Ethics Commission Chairman Judge Jerry Fielding who can swiftly move to bring the Marshall matter before the Commission.

For years, Fielding enjoyed a sterling reputation as a respected jurist, but slowly over time, his willingness to allow questionable compromise on the Ethics Commision has taken the shine off his former standing. Marshall’s case is an opportunity for Judge Fielding and the entire commission to affirm the rule of law applies to everyone, even an appointed attorney general.

It is now time for the commission to act because the people have a right to know if their attorney general is a cheat.

 

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Bill Britt

Opinion | Terminal corruption and its accomplices

Bill Britt

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There is at present a deliberate, brazen unraveling of the Republican’s signature 2010 legislation on ethics. Bastardization of the laws are not only happening at the so-called Alabama Ethics and Reform and Clarification Commission, but it’s also taking place at the state’s Ethics Commission where a group of appointed individuals are interpreting ethics and campaign finance statutes in a way never intended by the Legislature.

But perhaps this shouldn’t surprise anyone who understands the true state of politics in Alabama. What is shocking is that so many good people are saying nothing about what is happening at these commission meetings.

At its most recent hearing, the Ethics Commission showed its willingness to place cronyism over the rule of law when in a 3-0 vote (with two abstentions), the Commission voted to give itself the authority to reduce the number of offenses levied against candidates and political action committees (PACs) that violate campaign finance reporting rules, according to a report by APR‘s Josh Moon.

Ethics Commission gives itself more power to reduce penalties for campaign law violators

Routinely, the commission has exercised its power to reduce or dismiss civil penalties for campaign finance violations, but now it has taken an extraordinary step to reserve power to itself in determining what may rise to the level of a criminal offense.

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Commission chairman Jerry Fielding noted that no-one from the attorney general’s office or the district attorney’s association had voiced any concerns about changes the commission was making to the law, but is that really the case or is there something more sinister afoot?

Appointed Attorney General Steve Marshall currently has an ethics complaint pending before the commission. Marshall, during the Republican primary, took $735,000 in contributions from the Republican Attorneys General Association, in what is widely believed to be an illegal campaign contribution. However, the commission decided not to weigh-in on Marshall’s case until after the fall elections. Has Marshall purposefully withheld any critical comments about the commission’s ruling to curry favor or not anger the commission that might soon charge him with violating campaign finances laws? Marshall, for all his aw-shucks demeanor, is a calculating politician who will sacrifice anything that stands in the way of him remaining attorney general – a job he claims God gave him. Perhaps Marshall needs reminding that his position was given to him by disgraced Gov. Robert Bentley who by his actions has proven he has little in common with the Almighty.

Marshall, along with Ethics Commission Executive Director Tom Albritton, are chairing the Alabama Ethics and Reform and Clarification Commission, which was created to give the Legislature cover for when they abolish the ethics laws the Republicans passed in 2010. After eight years, which brought about numerous indictments and scandals, the Republican leadership has determined that the rules are just too rigid. So, under the guise of clarification, they will gut the laws during the upcoming legislative session.

Several individuals close to the process and one person who sits on the commission express grave concerns and even disgust at how blatantly the new rules will undercut the laws championed in 2010. As one individual said, “All is lost.” Far from hyperbole, these individuals sincerely believe that the commission will present a reform package that will not just undermine current laws but will open broad avenues for legal public corruption within the state.

Often the words ethics and morals are used synonymously, but they are quite different. Ethics is a set of rules that govern conduct in the workplace, an organization or government. Morals, on the other hand, are personal beliefs of right and wrong which are part of an individual’s character.

Many of our elected officials and others who make their living from politics place personal gain over any other guiding principle. Perhaps therein lies the problem.

Strong ethics laws enacted by corrupt individuals will not last long, and so after eight years, we see that many in Republican leadership never intended to live by the rules they championed when they took office.

As for the Ethics Commission, it is terminally corrupt without even a pretense of acting ethically.

The state is in dire need of those who realize that those who do not fight corruption are in fact accomplices.

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Bill Britt

Opinion | I dare you

Bill Britt

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In a recent interview with the Jasper-based Daily Mountain Eagle, Republican Lt. Gov. nominee Will Ainsworth said, “I’m tired of Alabama being last in important areas such as education, and I’m tired of our politicians on both sides being embarrassments to our state.”

In one sentence, Ainsworth captures the feelings of a majority of Alabamians who want to see our state succeed.

Our state is at or near the bottom in every meaningful measure of success.

It’s not that the state’s political class wants the state to fail, but they are unwilling to do the things necessary for it to succeed.

Our people as a whole are undereducated, underemployed and unhealthy, and yet the state’s politicians are more interested in the next elections than in the next generation; they’re more concerned about appealing to the base-voter than doing what is best for every citizen.

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We should do better; we can do better, but will we?

While rummaging around the local library as a young boy, I found a book entitled “I Dare You.” The book was written in 1931, by William H. Danforth, the founder of Ralston Purina whose familiar checkerboard logo was inspired by Danforth’s belief that an individual’s physical, mental, social and spiritual life should be balanced. Danforth’s concept is to be a healthy and productive person, you need the four squares to stay in balance so that no one aspect of your life is not developed at the expense of another.

“You have a four-fold life to live: a body, a brain, a heart, and a soul…these are your living tools. To use and develop them is not a task…It is a golden opportunity,” wrote Danforth.

Two passages in particular set me on a course in life that I still pursue today. The first was: “I dare you, boys and girls, to make life obey you, not you it. It is only a shallow dare to do the foolish things. I dare you to do the uplifting, courageous things.”

The second was: “I dare you to think bigger, to act bigger, and to be bigger. I dare you to think creatively. I dare you to lead and inspire others. I dare you to build character. I dare you to share. And I promise you a richer and more exciting life if you do!”

Imagine if you will what could occur if our state’s political leadership followed Danforth’s advice.

Public service was once considered a noble calling, but today, a career politician is often seen as a corrupt, money-grubbing fool, whose sole purpose is personal gain. While this is not true of all politicians, there are plenty that fit the description.

As Danforth understood, character, a moral center and a devotion to ideals greater than one’s self were vital to living an honest life.

There is a particular type of political atheism that says the end justifies the means. However, no unjust act can be justified merely because it produces a satisfactory outcome. This is indeed true in life and politics.

Recently, I received a mail piece in which a candidate who is running in his first election repeatedly lies about his opponent. I’ve met the candidate whose name is on the mailer, and there is no way he concocted these lies on his own. No, a paid political consultant furnished him with the deceptive lines of attack, and he took them. How is this individual now fit for office? If a man or woman is willing to lie for a job in any field, that is a disqualifier, and particularly so in public service.

Ainsworth says he’s tired of our state being behind and tired of politicians on both sides of the aisle being embarrassments. Maybe Ainsworth will use his bully pulpit to demand more of our state’s elected officials.

The problem is leadership.

Governments are run by people. If those individuals lack character, commitment and vision, then the results are the kind we see here in Alabama.

Perhaps in an age where private morality and public conduct are no longer considered one in the same, Danforth’s little book will seem quaint. In a time when preachers sermonize about morality in the pulpit but ignore it at the ballot box, Danforth will seem a bit out-of-date.

But as a teenage boy, his words inspired me as they do today.

It costs 99 cents for an online version at Amazon.

Danforth said a more abundant and more exciting life comes to those who dared to build character, think bigger, inspire others and share.

This may be true of governments, as well.

I dare you.

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Some are using a stalking horse to undermine ethics laws

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