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It’s Not the Ethics Laws, It’s the Commission

By Bill Britt
Alabama Political Reporter

The judge, jury and prosecution in the State v. Michael G. Hubbard trial proved that Alabama’s Ethics Laws have teeth. In a State where systemic corruption has grown exponentially under the reign of Mike Hubbard, these tough measures are not only needed, but also need to be more vigorously enforced by the Ethics Commission.

Unfortunately, instead of making sure that everyone follows the rules, the Commission has looked for every way it could twist the solid black letter of the law, into a pale, gray taffy.

It is time for serious lawmakers to insist the Ethics Commission do its job, or abolish it altogether; which seems to be the best choice, given its history.

They continue to issue secret opinions, like the one given Hubbard for his contract with Southeast Alabama Gas District (SEAGD). These informal opinions were not designed to serve as “get out of jail free” cards, but attorneys with Maynard, Cooper and Gale seem to think it helped Hubbard. Their analysis states, “Speaker Hubbard was acquitted on several counts for activity about which he had specifically met with the Ethics Commission’s staff and had received a letter indicating he was permitted to undertake. In contrast, the Speaker was convicted for conducting very similar activity for other entities in situations that he did not have written preclearance. It appears that the different verdicts on these similar counts may have been based the existence of the letter authorizing the Speaker’s employment and activities.”

But, these informal opinions were never designed to aid someone who sought to skirt the law, as Hubbard did.

The firm’s lawyers advised, “businesses interacting with public officials and public employees should seek advice of counsel and guidance from the Ethics Commission before proceeding on a possible course of action.” They further said, a “formal Opinion from the Commission is the safest course…In certain circumstances, the Commission’s staff may be able to provide more informal advice, which may not provide absolute immunity but may still provide the individual or business with an effective defense in the event of a criminal investigation.”

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How can the public trust a system that allows for secret opinions that may serve as reasonable doubt in a criminal trial?

These opinions are not posted online, so as to be available for pubic scrutiny, and they certainly break the spirit of the law.

The names listed with the analysis were, Ted Hosp, Jay Mitchell, Peck Fox and Edward O’Neal, who seem to argue 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 interpreting the phrase, “thing of value” and expanded a conflict of interest beyond what they believe was the legislative definition. The authors of the piece also stated, “Though a ‘friendship’ exception exists in the Act, the jury did not always accept the defense’s arguments based on it.”

Having been in the courtroom during the proceedings, the only thing that seemed overly broad was how Hubbard, former Gov. Bob Riley, BCA Chair Billy Canary and others, stretched the facts to present a uniform narrative to cause reasonable doubt. Hubbard was not convicted on counts where there was substantial conflicting testimony. This was not because of the law, but because of the inconsistent testimony dripping from the mouths of Hubbard’s lackeys.

Hosp, who is a lobbyist and lawyer, shepherded State Rep. Patricia Todd (D-Birmingham) through a formal ethics opinion, in which the Commission decided that Todd legislative advocacy (lobby), on behalf of her employer’s agenda, did not violate existing ethics laws, such as conflict of interest or personal gain. It also found little to restrict her from raising money for the 501(c)(4) non-profit, as long as there wasn’t an implied cohesion or promise.”

Does that sound familiar to anyone?

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In Hosp’s presentation to the Commission he wrote, “She anticipates seeking the votes of other members of the House and Senate in support of such legislation. She also expects to speak in favor of this legislation publicly, in committees and on the floor of the House of Representatives. Further, Representative Todd anticipates working against legislation that she views as harmful to the LGBT community, and expects to undertake all of the above activity (seeking votes, speaking out and voting) with regard to such legislation.”

Can you say American Pharmacy Cooperative Inc.?

That opinion did not stand a challenge from the Attorney General’s Office, and the State’s District Attorneys. Mere weeks after the opinion, the State’s Attorney General was joined by all of the State’s District Attorneys, calling for the withdrawal of the opinion that gave Todd the right to lobby the legislature on behalf of her employer.

The letter from the the Attorney General’s Office and the DAs said, the opinion threatened the rule of law and would have a nullifying effect upon the Alabama Ethics Code: “Our concern is not with the substance of any position taken by the HRC or Rep. Todd, but is with the larger ramifications of this opinion upon the rule of law, and its nullifying effect upon the Alabama Ethics Code.”

This opinion is believed to have been coordinated in some fashion with Hubbard. His attorneys would have loved presenting this to Hubbard’s jury.

The Commission eventually issued another opinion which said Todd could not do the things it had approved earlier. Even with that opinion in hand Todd continues to hold her House seat and serve as the Alabama Director of a group that seeks to influence legislation.

The second opinion issued about Todd’s position as advocate for her employer while being paid a salary, seems to conclude she cannot do both jobs. No matter how much anyone may care about Todd and her employers cause, this is not a reason to ignore the Ethics Laws. Todd is not the only lawmaker who was given an opinion that has some loose interpretation of the law.

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The Ethics Commission is broken.

Its Director, Tom Albritton, has close, personal ties to Hubbard, who is believed, at least in part, to have been responsible for his appointment. The opinions given under his leadership are some of the most egregious.

If lawmakers are truly serious about Alabama’s Ethics Laws, then they must place them into the hands of those who will enforce them.

As has been suggested before, the best solution is to give the Commission’s responsibility to the Attorney General’s Office, by transferring the power and money to the Special Prosecution Division.

The judge, jury and prosecution have spoken. Where are the lawmakers who care about the law?

The Ethic’s Laws are not the problem, it’s the Commission.

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Written By

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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