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US Supreme Court Decision Delivers Mixed Bag for Alabama Whistleblower

Lee Hedgepeth

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By Lee Hedgepeth
Alabama Political Reporter

WASHINGTON, D.C. – Yesterday the United States Supreme Court issued their decision in Lane v. Franks, a decision arising from the 2006 Central Alabama Community College scandal involving the firing of then State Representative Suzanne Schmitz from her position there, and the subsequent, alleged retaliation by the institution against Edward Lane, the employee of the school who fired her.

Mr. Lane had been hired by CACC as director of their CITY (Community Interactive Training of Youth) Program, for which Rep. Schmitz was also employed. Lane, after discovering that Schmitz was being paid while not showing up for regular office hours, requested that she show up in the organization’s Huntsville location to serve as a counselor. Schmitz refused, and Lane fired her.

Rep. Schmitz then pledged to retaliate against Lane, telling another CITY employee, Charles Foley, that she intended to “get him back” for firing her. The Court’s opinion also noted that Rep. Schmitz additionally said that if Lane ever requested money from the State legislature for the program, she would tell him, “you’re fired.”

These events drew the attention of the Federal Bureau of Investigation, which launched an investigation into CITY’s employment of Schmitz, culminating in her arrest and eventual conviction on three counts of mail fraud and four counts of theft concerning a program receiving federal funds. The jury found that “Schmitz had collected $177,251.82 in federal funds even though she performed virtually no services, generated virtually no work product, and rarely even appeared for work at the CITY Program offices.” In addition to her sentence, she was required to pay back the federal funds she had received.

During the Representative’s trial, Lane – under subpoena – testified concerning why he fired Schmitz from the program. A few months after the trial,  twenty-nine city employees were fired, including Lane. According to the Supreme Court’s opinion, “shortly thereafter, however, Franks rescinded all but two of the twenty-nine terminations – those of Lane and one other employee.”

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Mr. Lane filed suit, claiming that Steve Franks, the then president of CACC, had fired him in retaliation for his testimony. Though lower courts had decided that Lane, testifying about knowledge he had gained from his job, was not protected by the First Amendment and therefore could be fired for his testimony against Schmitz, the Supreme Court, in a unanimous opinion delivered by Justice Sonia Sotomayor, held the opposite.

“Almost 50 years ago,” the opinion begins, “this Court declared that citizens do not surrender their First Amendment rights by accepting public employment… Today, we consider whether the First amendment similarly protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job description. We hold that it does.”

The Court held that Lane, who has sued Franks for monetary damages, could not receive any compensation, as Franks was protected from lawsuit by the doctrine of sovereign immunity, which holds that public officials have leeway in interpreting ambiguous law, and cannot be sued for reasonable, but mistaken decisions.

Essentially, in this respect, the Court held that Franks may well have not known that Lane’s sworn testimony was protected by the First Amendment at the time he fired him.

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The ruling provides welcome legal protection for whistleblowers nationwide, as it clearly establishes that knowledge obtained in an official capacity is not privileged under oath, and that they cannot be fired for such testimony.

Notably, Attorney General Luther Strange provided oral argument before the Supreme Court in the case, furthering nearly exactly the logic that the Court used in its decision. Strange had argued that Lane’s testimony was protected by the First Amendment, but that President Franks was immune from suit, as the law had not been clearly established.

This month concludes the Supreme Court’s term, though they will reconvene in October.

The justices have already agreed to hear another case from the Yellowhammer State next term, this time on the GOP legislative redistricting in 2011, which the Alabama Legislative Black Caucus and the Alabama Democratic Conference argue are racially discriminatory and will lead to voter dilution in future elections. If the Court decides in their favor, results from any elections that have occurred before then, including the recent June 3 primary and the upcoming July 15 runoff, may be overturned.

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USDA is seeking rural energy grant applications

The deadlines to apply for grants is Feb. 1, 2021, and March 31, 2021. Applications for loan guarantees are accepted year-round.

Brandon Moseley

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(STOCK PHOTO)

United States Department of Agriculture Deputy Under Secretary for Rural Development Bette Brand on Wednesday invited applications for loan guarantees and grants for renewable energy systems, and to make energy efficiency improvements, conduct energy audits and provide development assistance.

The funding is being provided through the USDA’s Rural Energy for America Program, which was created under the 2008 Farm Bill and reauthorized under the 2018 Farm Bill. This notice seeks applications for Fiscal Year 2021 funding.

The deadlines to apply for grants is Feb. 1, 2021, and March 31, 2021. Applications for loan guarantees are accepted year-round.

REAP helps agricultural producers and rural small businesses reduce energy costs and consumption by purchasing and installing renewable energy systems and making energy efficiency improvements in their operations.

Eligible systems may derive energy from wind, solar, hydroelectric, ocean, hydrogen, geothermal or renewable biomass (including anaerobic digesters).

USDA encourages applications that will support recommendations made in the Report to the President of the United States from the Task Force on Agriculture and Rural Prosperity to help improve life in rural America.

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Applicants are encouraged to consider projects that provide measurable results in helping rural communities build robust and sustainable economies through strategic investments.

Key strategies include achieving e-Connectivity for rural America, developing the rural economy, harnessing technological innovation, supporting a rural workforce and improving quality of life. For additional information, see the notice in the Federal Register.

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Trump says that coronavirus vaccine deliveries will begin within two weeks

Trump said that front-line workers, medical personnel and senior citizens would be the vaccine’s first recipients.

Brandon Moseley

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(STOCK PHOTO)

President Donald Trump said Thursday that coronavirus vaccine deliveries will begin as early as next week.

“The whole world is suffering, and we are rounding the curve,” Trump said. “And the vaccines are being delivered next week or the week after.”

Trump made the announcement during a special Thanksgiving holiday message to U.S. troops overseas via teleconference. Trump said that front-line workers, medical personnel and senior citizens would be the vaccine’s first recipients. He also argued that his election opponent, President-elect Joe Biden, should not be given credit for the vaccines, which were developed during the Trump administration.

Trump referred to the vaccines, which were developed and tested in less than ten months as a “medical miracle.”

Regulators at the FDA will review Pfizer’s request for an emergency use authorization for its vaccine developed with BioNTech during a meeting on Dec. 10. The director of the FDA’s Center for Biologics Evaluation and Research says a decision is expected within weeks, possibly days after that key meeting.

The latest trial data for Pfizer and BioNTech’s vaccine showed that it was 90 percent effective.

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The CDC plans to vote next week on where the distribution of approved vaccines will begin and who will be allowed to get the first vaccines when they become available.

Dr. Celene Gounder, a member of Biden’s COVID Advisory Board, warned against rushing a vaccine to market.

“The single biggest risk of rushing an approval would be Americans’ distrust the vaccine,” Grounder said. “It’s essential people feel confident this is a safe and effective vaccine.”

Moderna said that its vaccine is 94.5 percent effective in preventing COVID-19.

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AstraZeneca says its preliminary results showed its vaccine ranged from 62 percent to 90 percent effective depending on the dosage amount given to participants. AstraZeneca is having to launch a second round of global trials to clear up the discrepancies.

Many Americans appear to have ignored CDC warnings to scale back Thanksgiving holiday plans. More than six million Americans flew over the holiday week, raising fears by public health officials that the surge in coronavirus cases we are experiencing now will be followed by a bigger surge in the next three weeks.

As of press time, there have been 62 million diagnosed cases of coronavirus cases in the world, including nearly 13.5 million in the United States, but many cases are mild and go undiagnosed.

A CDC researcher estimates that the real number of infections in the U.S. has topped 53 million since February. More than 1.4 million people have died around the world since the virus first appeared in China late last year. The death toll includes 271,029 Americans and 3,572 Alabamians.

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The Iron Bowl is today

Alabama will have to play without head football coach Nick Saban who has tested positive for the coronavirus.

Brandon Moseley

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The 2019 Iron Bowl (VIA ALABAMA FOOTBALL/UNIV. OF ALABAMA ATHLETICS)

The Auburn University college football team will play the University of Alabama at Bryant-Denny Stadium in Tuscaloosa on Saturday with the game kicking off at 2:30 p.m. Attendance is strictly limited because of COVID-19 restrictions. The game will be televised on CBS stations.

Alabama will have to play without head football coach Nick Saban who has tested positive for the coronavirus and is experiencing mild symptoms. Offensive coordinator Steve Sarkisian will coach the Crimson Tide in Saban’s absence. He has a 46-35 record as a head coach at USC and Washington.

Auburn will be coached by Gus Malzahn, who has a 67-33 record as a head coach. He is the fifth winningest coach in Auburn history, trailing only Shug Jordan, Mike Donahue, Pat Dye and now-Senator-elect Tommy Tuberville.

Alabama has a 7-0 record and is currently the No. 1 team in the country in the college football rankings. Auburn is 5-2 but with a win could still win the SEC West with wins in its remaining two games, and if Alabama were to lose another game down the stretch. Alabama is just one game ahead of Texas A&M for first place in the SEC West, but the Tide has the tiebreaker by virtue of having defeated the Aggies in head-to-head competition.

In addition to team honors, there is a lot riding for individual players in today’s game. Alabama redshirt junior quarterback Mac Jones has thrown for 2,426 yards and 18 touchdowns in Alabama’s first seven games. Jones’s strong performance has made him a Heisman contender and has earned him consideration as a possible first-round or high second-round draft pick by the NFL if he were to leave Alabama early.

Auburn quarterback Bo Nix has thrown for 1,627 yards and ten touchdowns over seven games.

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Alabama and Auburn played their first football game against each other in Lakeview Park in Birmingham on Feb. 22, 1893. The game is called the Iron Bowl because historically the game was played on a neutral site: Birmingham’s historic Legion Field. Birmingham at the time was best known for the iron that was mined there and then made into steel and other metal products.

The game is now played as a home and home series, but the Iron Bowl name has stuck with the rivalry.

Alabama leads the series with 46 wins to Auburn’s 37. There has been one tie. Auburn defeated Alabama 48 to 45 in last year’s high scoring contest.

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Health

Vaccines should protect against mutated strains of coronavirus

Public health experts say it will be some time before vaccines are available to the wider public.

Eddie Burkhalter

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(STOCK PHOTO)

Multiple vaccines for COVID-19 are in clinical trials, and one has already applied for emergency use authorization, but how good will those vaccines be against a mutating coronavirus? A UAB doctor says they’ll do just fine. 

Dr. Rachael Lee, UAB’s hospital epidemiologist, told reporters earlier this week that there have been small genetic mutations in COVID-19. What researchers are seeing in the virus here is slightly different than what’s seen in the virus in China, she said. 

“But luckily the way that these vaccines have been created, specifically the mRNA vaccines, is an area that is the same for all of these viruses,” Lee said, referring to the new type of vaccine known as mRNA, which uses genetic material, rather than a weakened or inactive germ, to trigger an immune response. 

The U.S. Food And Drug Administration is to review the drug company Pfizer’s vaccine on Dec. 10. Pfizer’s vaccine is an mRNA vaccine, as is a vaccine produced by the drug maker Moderna, which is expected to also soon apply for emergency use approval. 

“I think that is incredibly good news, that even though we may see some slight mutations,  we should have a vaccine that should cover all of those different mutations,” Lee said. 

Researchers at the University of North Carolina at Chapel Hill and the University of Wisconsin-Madison found in a recent study, published in the journal Science, that COVID-19 has mutated in ways that make it spread much more easily, but the mutation may also make it more susceptible to vaccines. 

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In a separate study, researchers with the Commonwealth Scientific and Industrial Research Organisation found that while most vaccines were modeled after an earlier strain of COVID-19, they found no evidence that the vaccines wouldn’t provide the same immunity response for the new, more dominant strain. 

“This brings the world one step closer to a safe and effective vaccine to protect people and save lives,” said CSIRO chief executive Dr. Larry Marshall, according to Science Daily

While it may not be long before vaccines begin to be shipped to states, public health experts warn it will be some time before vaccines are available to the wider public. Scarce supplies at first will be allocated for those at greatest risk, including health care workers who are regularly exposed to coronavirus patients, and the elderly and ill. 

Alabama State Health Officer Dr. Scott Harris, speaking to APR last week, urged the public to continue wearing masks and practicing social distancing for many more months, as the department works to make the vaccines more widely available.

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“Just because the first shots are rolling out doesn’t mean it’s time to stop doing everything we’ve been trying to get people to do for months. It’s not going to be widely available for a little while,” Harris said.

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