By Bill Britt
Alabama Political Reporter
Even before former Speaker Mike Hubbard’s conviction on 12 counts of public corruption, due to criminal ethics violations, his minions were spinning a narrative that the laws, under which he was indicted, were hastily prepared and passed without question (merely a deceptive plan to cast doubt on his indictment).
To say that the 2010 ethics laws passed rapidly and without the body’s full understanding may be right, but to believe they were not conceived without purpose and understanding by those wrote them, is a lie.
In 2009, gubernatorial candidate, Bradley Byrne, released a 10-point ethics reform plan which he said would be passed at Special Session. Byrne lost but the 10-point plan and more was implemented during a 2010 Special Session, presided over by former Gov. Bob Riley and his handyman, Hubbard.
Is there a need to take a deeper look at our State Ethics laws? Yes, but not to weaken them, as some would have it, but to strengthen their enforcement and clarify their application.
Stringent codes of conduct in the public sector are necessary. Even when people know what they have a right to do, they don’t always do what is right, to paraphrase Associate Supreme Court Justice, Potter Stewart.
One of those who would be happy to neuter the current ethics laws is, ironically, the Chairman of the House Ethics Committee, Rep. Mike Ball. Now, as before Hubbard’s conviction, Ball is calling for ethics reform that would make it harder, if not impossible, to convict criminals like his friend and boss, Mike Hubbard. Ball’s call is as shallow and ill-informed as his testimony on prosecutorial misconduct during Hubbard’s pretrial hearings.
Even if we set aside Ball’s attempts to undermine Hubbard’s prosecution, his inability to acknowledge his complicity in the Hubbard affair renders him a feckless and unacceptable choice to be chairman, and overseer of a committee tasked to reform our existing ethics laws.
Ball is one of a handful of lawmakers, lawyers, lobbyists and trade associates spreading the false narrative that the ethics laws passed in 2010 lacked proper vetting. Here, borrowing a quote from a convicted felon seems fitting: “Those ethics laws. What were we thinking.”
Any effort to change the current ethics codes must fall under the Aegis of the Office of Attorney General, Luther Strange. If there is a commission to study the State’s ethics laws, its findings should be subject to a thorough examination by the AG.
The Attorney General’s Special Prosecution Divison, under the leadership of Chief Matt Hart, continues to meet resistance from within and without the system, concerning the enforcement of the existing statutes.
AG Strange and staff regularly sit front and center at Ethics Commission meetings, perhaps to remind the commissioners of their duty, or to hear first-hand, the pretzel logic used in various opinions before the panel. Whichever the case, there are plenty who wish for a softer version of the 2010 laws that were tested and found solid in the Hubbard case.
A September 12, 2016 memo from Maynard, Cooper Gayle’s Ted Hosp, to the Business Council of Alabama (BCA) regarding recent opinions by the Ethics Commission on who is “a principal” and what is “a thing of value” reads in part: “Modification of the opinions by the Ethics Commission may be the only opportunity to change the law’s interpretation in the near future. Given the recent back and forth between legislators and the Attorney General, changes to the law do not appear likely prior to the 2018 elections.”
Here Hosp’s memo informs the State’s most influential lobbying group that hope for reform favorable to it may depend on the outcome of the 2018 elections. There also appears to be an apprehensive prayer of “some chance that the Hubbard appeal will result in changes to the current interpretations of the law, what the appellate courts will do—and when they will issue any decision—is uncertain,” wrote Hosp.
This memo emailed to BCA members is perhaps further evidence of the gathering forces, in-league to undercut laws now on the books.
The Attorney General’s Special Prosecution Divison is the only arm of government which has dared enforce State ethics laws without political consideration.
Trusting lawmakers to write or reform the State’s ethic laws is a belief undermined by their gutless handling of the Hubbard affair.
For now, the Attorney General’s office is the only government agency to display the moral aptitude to oversee reform.
Who else can we trust?
Opinion | Deception, subtlety and the wholesale destruction of current ethics laws mark proposed rewrite
Legislation proposed by Rep. Mike Ball, R-Madison, would radically alter the existing State Ethics Act rendering it useless as an effective tool to regulate the behavior of public officials, much less prosecute a rouge lawmaker.
Testifying at a pre-trial hearing in the criminal case against then-Speaker of the House Mike Hubbard in April 2015, Ball said the ethics laws needed amending to avoid prosecutions like Hubbard’s in the future.
If HB179 becomes law, Ball will have fulfilled the words he spoke at the Lee County Court House, where Hubbard was tried and convicted.
As House Ethics Committee Chair, Ball has sought to change the State’s Act since Hubbard was indicted.
Ball’s bill is subtly written from an enforcement and trial perspective to neuter the law.
Words are added, deleted, and meanings changed in ways that might look harmless but actually open the door for the kind of corruption Republicans vowed to change in 2010, when they passed the toughness in the nation’s ethics laws.
Beyond changes that would allow for general corruption to go unpunished, Ball’s legislation would strip the Attorney General and district attorneys of their power to prosecute anyone who violates the ethics laws without first securing approval from the State Ethics Commission.
All prosecution of any public official would first have to be approved by the Ethics Commission, a group that has repeatedly shown that it bends its decisions according to the prevailing political winds.
HB179 reads in part, “This bill would prohibit the Attorney General or a district attorney from presenting a suspected ethics violation by an individual subject to the code of ethics, other than a member or employee of the commission, to a grand jury without a referral by the commission.”
In other words, Ball would have a politically-appointed commission decide if law-enforcement agencies can seek indictments against wrongdoers.
Neither the Attorney General or a county district attorney can even impanel a grand jury in an ethics probe without the commission first finding probable cause.
Some of Ball’s alterations come in the form of removing whole sections of the law under the guise of redefining words, like “a thing of value” or “widely attended event.”
An example of how Ball’s legislation plays with the law is under the section of code, which defines a family member of a public official. Currently, a family member is “[t]he spouse, a dependent, an adult child and his or her spouse, a parent, a spouse’s parents, a sibling and his or her spouse, of the public official.” Ball changes it so it only includes a spouse and a dependent. That means that a public official may act to enrich his adult children, a parent, an in-law a brother, or a sister. These small but destructive alterations to the law are at the heart of Ball’s legislation.
Some loopholes are so extensive that a sitting legislator could be paid by a city or county governmental economic development entity and still seat in the Legislature voting on bills that might directly affect his consulting client.
Out-of-state junkets make a comeback as do several other goodies lawmakers have been desiring.
It seems Republicans want to cash in on the rewards of office like Democrats did once upon a time.
One thing is clear, Ball didn’t write the bill, but whoever did knew precisely what they were doing and were probably paid handsomely for their efforts.
There are so many cunningly deceptive changes to the ethics laws in Ball’s bill as to make it impossible to catch them all without days of intense study—and perhaps a team of lawyers.
Ball, one of Hubbard’s most an ardent defenders has said Hubbard’s indictment and conviction was a political witch hunt. He has said he wants to rewrite the ethics laws to save future Hubbards; it now looks as if he has.
Opinion | PCI’s billion dollar plan raises questions
Over the last few months, the Poarch Band of Creek Indians has flooded the state with an advertising campaign touting a billion-dollar package labeled “Winning for Alabama.”
How the plan benefits Alabama is a fuzzy moving target, but there are many advantages for the tribe.
Beyond giving PCI a monopoly over Las Vegas-style gaming, it also cements PCI’s tribal status.
Since 2009, PCI and other tribes federally recognized after 1934, have lobbied Congress for a “Carcieri fix,” to guarantee they are safe from losing federal recognition and with it the right to operate tribal gaming.
In Carcieri v. Salazar, 555 U.S. 379 (2009), the Supreme Court of the United States ruled that the phrase of tribes “now under Federal jurisdiction” in the Indian Reorganization Act of 1934, referred only to those tribes that were federally recognized when the act was passed. PCI wasn’t recognized until 1984.
A compact with the state would end the threat that hangs over PCI and its billion-dollar casino empire in Alabama.
Over the past several years, U.S. Congressman Bradley Byrne—who is now running for Senate—has pushed legislation in the U.S. House of Representatives to protect the tribe from any challenges under the Carcieri ruling. Byrne’s efforts have been unsuccessful due to resistance from Alabama’s senior U.S. Senator Richard Shelby.
Byrne saw his 2018 legislation falter when Shelby made it known the bill would not get a hearing in the Senate.
At the time, APR contacted Shelby’s office for comment, “Senator Shelby does not support the bill and has no plans to do so in the future,” wrote Shelby’s communications director, Blair Taylor. Likewise, APR reached out to Gov. Kay Ivey’s office where then-spokesperson, Daniel Sparkman, told APR, “Governor Ivey has no plans to write such a letter,” encouraging Senator Shelby to support a Land Reaffirmation Act.
A compact with the state would likely end any further concerns over a Carcieri fix.
While PCI is courting voters and lawmakers, ultimately, it is Gov. Ivey, who has the authority to negotiate a compact with the tribe. At this juncture, Ivey’s thinking isn’t known, but given her history, she will look hard and long at any gaming plan that requires her signature to enter into a compact with PCI.
PCI’s proposal raises several questions, not the least of which are “can the state give the tribe a monopoly over table gaming, and how much money will the state actually receive from PCI’s plan?”
The proposal is vague in specifics and the math is hazy at best, but according to PCI’s website and promotional materials, the plan includes: “$725 Million in combined license and compact fees from existing properties and two new locations, PLUS $350 Million in projected tax revenue and revenue share from gaming, including sportsbook and table games, PLUS.”
For the one-time payment and projected future tax revenue, PCI wants the state to enter into a compact with the tribe and also give them exclusive rights over table gaming throughout the state. That is giving a lot for little return when in fact a state lottery with all the bells and whistles could produce around $400 million in tax revenue for the state without giving anyone a monopoly.
All tribal gaming falls under the Indian Gaming Regulatory Act of 1988, which lists the different categories of gambling permitted by tribal entities.
Currently, PCI operates class II gaming in Alabama.
Class II gaming, according to IGRA, are:
“Bingo, pull-tabs and other similar games, including non-banking card games not prohibited by state law.”
IGRA states that PCI can only offer games that are “not prohibited by state law.”
The Alabama Supreme Court has ruled that electronic bingo machines are illegal. However, PCI offers electronic bingo at its facilities in Atmore, Montgomery and Wetumpka.
IGRA also states, “Expressly excluded from Class II gaming are banking card games, such as blackjack or slot machines of any kind.”
To offer blackjack, roulette, or other table games, PCI would need a compact with the state, which must be negotiated by the state’s governor, which presently is Ivey.
Class III games are according to IGRA: “All forms of gaming that are not included under Class I or Class II, such as blackjack and slot machines.”
Other provisions of Class III conclude that “the games are located in a state that permits gaming for any purpose by any person.”
This section of IGRA would seem to prevent the state from granting PCI exclusivity over Class III Las Vegas-style gaming, but this is a question that will be answered by attorneys.
PCI has done very well since it became a de facto gaming monopoly in the state as a result of then-Gov. Bob Riley’s bingo wars.
Year after year, PCI and its Republican allies in the state Legislature have killed any lottery or gaming plans that threatened the tribe’s monopoly.
The billion-dollar plan is seen as tempting to some lawmakers, but its success or failure rests with Gov. Ivey, who is responsible if a compact with the tribe is to be negotiated.
Many unanswered questions must be considered before the state should entertain PCI’s billion-dollar plan; perhaps most importantly, how does Carcieri v. Salazar affect the tribe’s federal standing and what are the benefits for the state?
Opinion | PCI supported President Trump’s rivals but want state Republican to do their bidding
In 2016, Alabamians overwhelmingly supported Donald J. Trump for president. The Poarch Band of Creek Indians, however, put the majority of their money behind his rival, Hillary Rodham Clinton.
PCI gave Clinton $150,000 in 2016, but only $25,000 to Trump. Likewise, in 2012, PCI contributed $135,000 to Barack Obama. In both elections, the Poarch Creeks sided with Trump’s nemeses.
Even after Clinton’s loss, PCI donated $203,400 to the DNC Services Corp./Dem. National Committee.
In fact, of the 13 most substantial contributions made by the tribe in federal elections over the last several years, eleven donations went to Democrat candidates or organizations while only two went to Republican causes.
If money is the mother’s milk of politics, then PCI’s top donations are nourishing Democrats nationally and starving Republicans.
In a pro-Trump state, the Poarch Creeks —who backed Hillary for president—are asking Republican lawmakers to give them a state-sanctioned monopoly over gaming.
Principled Republicans might see a problem with giving so much power to a group whose money goes to candidates with values so diametrically opposed to their own.
Currently, PCI gives generously to Alabama Republicans, but once those conservative lawmakers turn over gambling in the state to the tribe, is it not possible that they will then switch back to their political roots and support Clinton-type Democrats for state offices?
PCI stokes Alabama Republicans for now, but what happens when they no longer need them to do their bidding?
Just last year, PCI contributed to the Democratic Congressional Campaign Committee and the Democratic Senatorial Campaign Committee.
Money from PCI to the DSCC will go to giving Chuck Schumer control over the U.S. Senate while their support for DCCC will increase Democrats in the House.
“DCCC is the only political committee in the country whose principal mission is to support Democratic House candidates every step of the way,” according to the group’s website.
Do Alabama Republicans not realize that PCI is supporting the very group that elected candidates they claim to despise like AOC and the squad?
In 2018, DCCC’s campaign contributions flipped the U.S. House of Representatives, giving control of the chamber to Nancy Pelosi. In return, Pelosi led House Democrats to impeach President Trump.
Isn’t it hypocritical to loathe Democrats on the one hand while accepting donations from their patrons with the other?
Of PCI’s largest contributions, only two went to Republicans, one was in 2014, to the Congressional Leadership Fund and the other was to John Boehner for Speaker in 2015.
State Republicans howl against Anti-Trump and Pro Socialist Democrats but line-up to support PCI which has given maximum donations to Nancy Pelosi.
Perhaps PCI gave Trump chump change because, as a businessman casino owner, he dared point out the unfair advantages tribal gaming has over private operators. But maybe they are afraid the Trump administration will enforce the law which says PCI can’t operate any games that are illegal in the state.
Obama didn’t enforce the law and Clinton surely would not have. Maybe Trump will.
PCI, for now, is cozy with state Republicans, but their national support for Democrats should serve as a warning that things can change.
Opinion | MLK Day: A time for change
Today, as the nation celebrates MLK Day, Alabama still tacks Robert E. Lee onto its observances. But it’s time to end that practice as a new generation deserves to see a better Alabama.
Alabama Code, Title 1. General Provisions § 1-3-8 enumerates the state’s legal public holidays, which lists the third Monday in January as an observance for Martin Luther King Jr., and also Robert E. Lee.
How long will our state’s leaders cling to the past? Isn’t it time to put away the false equivalency between King and Lee?
Both men were flawed, but while Lee’s reputation has diminished with time, King’s has grown.
Lee may have once represented a proud South, but today he is seen as a symbol of bloody slavery.
Over time, King’s legacy has flourished and now stands as a beacon of hope to millions, not just in the United States, but around the world.
In her 2019 Inaugural Address, Gov. Kay Ivey acknowledged, “Thankfully, the Alabama we live in today – the Alabama we love – has changed with the times and, in most instances, this change has been for the better.
But we would be less than honest with each other if we did not acknowledge that change has not always come easily. Standing here on Dexter Avenue, we are reminded of two different chapters in Alabama history: a time when the Civil War raged and 90 years later when the Civil Rights movement was inspired.
It is important for all of us to acknowledge our past; after all, it was at a pulpit just down the street that Doctor Martin Luther King Junior so powerfully taught us how to confront struggles with honesty, courage, and love.
Having learned from the past, let’s now turn our focus to the future, which is filled with so much hope and opportunity.”
Sadly, some in our state can’t admit Alabama’s past, much less let go of the legacies that still haunt the state.
That Lee shares the day with King is a relic from our not so honorable history.
Almost immediately after King’s assassination in 1968, there were calls for a holiday commemorating his January 15 birthday, a struggle that would be fraught with conflict for 15 years.
President Ronald Reagan signed the bill making MLK Day a national holiday on November 2, 1983, but even he wasn’t convinced that it was best for the nation as he said a King holiday was “based on an image, not reality,” according to a letter he wrote to former Gov. Meldrim Thomson Jr. of New Hampshire.
After Reagan’s remarks were made public, he called King’s widow, Coretta Scott King, to apologize for any misunderstanding about his comment, according to a 1983 report by the New York Times.
Up until the passage of MLK Day legislation, North Carolina U.S. Senator Jesse Helms railed against the measure, accusing King of being a Communist sympathizer. Helms threatened to filibuster, tried to open King’s sealed FBI files and estimated that the cost of a new national holiday would be $12 billion in lost productivity.
Still, today, even in the halls of the Alabama State House, Helms’ argument is still being made.
Efforts to erect a monument to King on Dexter avenue are fought with the same rhetoric and passion that fueled Helms, except today, they are mostly in whispers-tones and code-speaks.
George Washington, Thomas Jefferson, Alexander Hamilton and a host of the founding generation’s notables were slave owners and men with questionable private lives. Still, nevertheless, they are celebrated for their accomplishments, not chased for their failings.
Turbulent water running under the bridge that divides our nation along racial lines is stirred by those who would convince us that they are deep, but they are not deep only muddy making us fear to cross.
King’s legacy is the embodiment of nonviolent activism for civil rights, which has been replicated on nearly every continent around the globe.
After the King Holiday Bill was signed, Coretta Scott King said, “This is not a black holiday; it is a people’s holiday.”
It is time to change because MLK Day cannot be a people’s holiday in Alabama, as long as it’s a Lee holiday, too.
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