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.
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?
Opinion | Marsh hurls accusations at Gov. Ivey. Is he barking mad?
Appearing on the latest edition of Alabama Public Television’s “Capitol Journal,” Sen. President Pro Tem Del Marsh, R-Anniston, blamed Gov. Kay Ivey for the loss of some 450,000 jobs in Alabama.
It’s an absurd accusation that any thinking Alabamian knows is a lie. But Marsh wants to hurt Ivey because she exposed him as little more than a petty, greedy-gut politico.
Still stinging from the public humiliation he suffered after Ivey revealed his “wish list” — which included taking $200 million in COVID-19 relief money to build a new State House — Marsh is leveling a cascade of recriminations against the popular governor.
However, what is astonishing is that he would spew brazen lies about Ivey during raging loss and uncertainty caused by a worldwide pandemic. This latest fiction about Ivey creating widespread economic calamity is the unseemly work of a hollow man without empathy, wisdom or decency.
This insane assertion that Ivey is somehow responsible for thousands suffering is as cravenly evil as it is politically stupid.
“The policies that have been put in place by the [Ivey] administration have 450,000 people out of work,” Marsh told show host Don Daily.
Only a fool, a nutjob or a politician would blame Ivey for losing some 450,000 jobs, but there was Marsh, on public television, showing he is perhaps all three.
In the middle of his barking-mad comments, Marsh somehow forgot to mention that he was a member of Ivey’s Executive Committee on the COVID-19 task force and helped make the very policies he now claims led to joblessness and financial ruin for many Alabamians.
Marsh is merely making it up as he goes because his fragile ego, pompous character and rank inhumanity suddenly became fully displayed for every Alabamian to see when he doubled down on building a new State House.
And so, like a guy caught with his pants down, Marsh is pointing his finger at Ivey to distract from his naked indifference toward the struggles of his fellow Alabamians.
Marsh’s plan to spend the CARES Act funds on a State House and other pet projects ignored the sufferings of hundreds of thousands of the state’s most vulnerable citizens and businesses.
Ivey wanted the nearly $1.9 billion in CARES funds to go to help those individuals, businesses and institutions affected by COVID-19. Marsh wanted it as a Senate piggybank, so, he lashes out at her rather than reflect on how he and the State Senate could do better in the future.
Anyone who blames others for their failings is a weakling, not a leader.
Marsh came to power under a scheme hatched around 2008, by then-Gov. Bob Riley. The plan was to make Mike Hubbard the speaker of the House, Marsh as pro tem and Bradley Byrne as governor. Riley would act as the shadow puppet master pulling the strings of power from behind a thin curtain of secrecy, allowing him to make untold riches without public accountability.
Byrne losing the governor’s race to the hapless State Rep. Dr. Doctor Robert Bentley was the first glitch in the plan (yes, during the 2010 campaign for governor, Bentley changed his name to Doctor Robert Julian Bentley so the title Doctor would appear next to his name on the primary ballot).
The second problem for the venture was Hubbard’s avarice, which landed him on the wrong side of the ethics laws he, Riley, Byrne and Marsh championed. Of course, the ethics laws were never meant to apply to them. They were designed to trap Democrats.
Marsh has floundered since Hubbard’s grand departure and with Riley sinking further into the background, it is now apparent that Riley was the brains, Hubbard the muscle and Marsh the errand boy, picking up bags of cash to finance the operation.
Gofers rarely rise to power without the public noticing they’re not quite up for the job, and so it is with Marsh that his office has shown the limits of his abilities.
Marsh wanted to control the COVID-19 relief money to spend on pork projects as he’d done in the past, but Ivey didn’t allow it. To be outsmarted is one thing, but to be beaten by a woman is too much for a guy like Marsh.
Ivey burned Marsh like a girl scout roasting marshmallows over a campfire.
Senator Marshmallow, anyone?
Poor Marsh, with his political career in turmoil, picked the wrong target in Ivey.
Some look at Ivey and see a kind, grandmotherly figure. Ivey is as tough as a junkyard dog, and now Marsh knows what her bite feels like.
Ivey didn’t cause massive job losses. COVID-19 did that. But Marsh got his feelings hurt, bless his heart, so he wants to take Ivey down.
Just like his scheme to commandeer the COVID-19 funds from the people didn’t work, his attack on Ivey won’t either.
People see Marsh for what he is, and it’s neither strong nor competent; it’s weak and ineffectual.
Marsh stood behind Ivey when she announced the state’s health orders wearing an American flag style mask.
He voted for her executive amendment.
And now he lies.
In times of real crisis, true leaders emerge while others of lesser abilities whine. Marsh is complaining. Ivey is leading.
And so the public watches as The Masked Marshmallow takes on Iron-jawed Ivey. It’s not tricky to see how this cage match turns out.
Marshmallow, down in three.
Opinion | Ivey brings the heat
The Alabama Legislature on Monday approved Gov. Kay Ivey’s plan to spend $1.8 billion in federal CARES Act relief funds responsibly and transparently, and it is a victory for the people of Alabama.
Passage of Ivey’s executive amendment was, however, a blow to the fragile egos and grand money grab orchestrated by Senate President Pro Tem Del Marsh, R-Anniston, and his cronies.
Marsh and his allies had hoped to highjack the money designated to fight and repair the ravages of COVID-19 on the state and use it for pet projects like a robotics park, an additional forensic lab and a new State House to name a few.
Marsh and his cohorts kicked and screamed, some Senate leaders took to favorable talk radio and blogs to disparage Ivey, but it didn’t work.
Even at the eleventh hour, Marsh tried to back out of the deal, but cooler heads prevailed.
Ivey won the battle the moment she revealed the contents of Marsh’s so-called “wish list,” because Marsh wasn’t politically sophisticated enough to back down and regroup when he had a chance.
Instead, he and a few diehards doubled down on their intent to use the CARES Act funds for their self-serving projects. They even paid for a poll showing the people back them, not Ivey. But it didn’t work because their conniving was as inept as it was shameful.
Ivey is a straight shooter; Marsh is a double-dealer with a history of betraying friend and foe, not a good habit for anyone who wants a long career in politics.
Taking a page from President Ronald Reagan’s playbook, Ivey brought righteous indignation to the underhand game being played by some in the Senate.
Reagan said, “When you can’t make them see the light, make them feel the heat.”
Finally, she made a deal with Speaker Mac McCutcheon and the House budget chair, Rep. Steve Clouse, to bring about a plan to shield the CARES funds and make sure it went to help Alabamians instead of legislative cronies. McCutcheon and Clouse aren’t crooks.
Anyone who has been around the State House for a few years knows how Marsh, along with then-Speaker of the House Mike Hubbard (now a convicted felon awaiting prison), used almost $1 billion from the BP settlement to fund Medicaid and pay off state debt.
They also remember how then-Gov. Robert Bentley used $1.8 million in BP settlement money to renovate the governor’s dilapidated beach mansion, which became known as the “Lov Govs’ Love Shack.”
The BP settlement money was meant to help those devastated by the Deep Water Horizon oil spill, but Marsh and Hubbard used it as a personal piggy bank, not for its intended use.
Under Marsh and Hubbard, perhaps billions were squandered, and the BP funds are just one example.
Ivey reminded the public of Hubbard and Marsh’s hijinks, and people took notice.
But even after Ivey’s amendment passed, Marsh and Senate Majority Leader Greg Reed, R-Jasper, released a statement so utterly dishonest that it’s astounding that Reed — generally a decent human — signed on to it.
The statement reads in part, “This is by no means a perfect compromise; however, we are pleased that the Governor has acknowledged that the Legislature has control of funding as per the Constitution.”
Ivey always acknowledged the Legislature’s constitutional authority. She never questioned it. So for Marsh and Reed to couch their loss as a win in such a disingenuous statement is remarkably arrogant.
“Ultimately, we gave our support to the Governor’s Executive Amendment as it is the best deal for the people of Alabama,” Marsh and Reed said in their joint statement.
They supported Ivey’s amendment because their incompetence beat them.
Supposedly, Marsh is to step down as pro tem before the 2021 session and surrender the post to Reed. No one knows if Marsh will keep the agreement he’s made or not. He’s not known for keeping his word.
As for Reed, he could be a decent pro tem, but the joint statement calls into question his political wisdom and, indeed, his humility.
Marsh and his folks played a poor game of checkers; heaven forbid they ever have to play chess with anyone with a pulse.
The purpose of Ivey’s battle was to ensure that the nearly $1.8 billion given under the CARES Act went to help the state.
Ivey and her team won, not for themselves, but the people. That’s good government.
Perhaps now the Senate should sing a few verses from the Hank Williams song, “I Saw the Light.”
Or, more appropriately, the Jerry Lee Lewis tune, “Great Balls of Fire,” because they felt the heat.
Opinion | Government being weighed in the balance
President Donald Trump, on March 27, 2020, signed into law the U.S. government’s Phase 3 aid package known as the CARES Act to provide relief for states and individual local governments to combat the crisis caused by the COVID-19 pandemic.
A series of failed private negotiations between members of the executive and legislative branches of state government spilled out into the open over how best to spend the nearly $1.8 billion in aid relief responsibly.
This latest round of conflict shows that the real measure of a leader is revealed in times of crisis and Alabama’s legislative leadership is failing as shown by the power play instituted by certain members of the House and Senate over the spending of the CARES money.
The matter was never over the Legislature’s appropriations authority under the 1901 Constitution but how to most effectively administer the money wisely with oversight and transparency.
Neither was it the exposure of a so-called “wish list” that brought the private discussions to a boiling point. The fight occurred because of the unwillingness of some in the legislative leadership—especially Senate President Pro Tem Del Marsh, R-Anniston—to work with Gov. Kay Ivey to ensure that the funds served the broad interest of the people of Alabama affected by the COVID-19 crisis instead of the narrow ones championed by a handful of lawmakers.
Marsh, on Saturday, took ownership of the so-called “wish list” after days of denial by various members of the Legislature. However, to mitigate the disastrous revelation that he had seriously wanted to spend $200 million on a new State House while people were suffering by the hundreds of thousands, Marsh tried to claim he was just doing what Ivey had asked him to do.
While Marsh has been flexing his political muscle and trying to worm out of a media crossfire, literally thousands of Alabamians are going without food due to job losses caused by the COVID-19 outbreak.
What the “wish list” does illustrate is the callow, careless and callous thinking of those who would control money meant to heal the wounds and restore the institution ravaged by the novel coronavirus.
But Marsh and his cronies have never shown a sense of caring or shame only the arrogant entitlement that is so pellucid in times of want and need.
Marsh appearing Saturday on APT’s Capitol Journal tried to make the case that the legislative process was far more transparent than anything that would happen in the Governor’s office.
“We’re always transparent,” Marsh told APT’s Don Daily. “We pride ourselves on that. I think, unfortunately, the Governor has taken issue with the legislature becoming involved in this process. But, nothing can be more transparent than the legislative process. I can promise you — you give these dollars to a governor to spend, you have no process.”
Perhaps Marsh’s not wearing a face mask at the State House has left his mind cloudy so that he doesn’t remember how he handled the BP settlement— a fact Ivey brought up at a recent press conference.
Not too many years ago, Marsh, along with then-Speaker of the House Mike Hubbard (now a convicted felon awaiting prison), used almost $1 billion from the BP settlement to fund Medicaid and pay off state debt, according to a 2016 report by Market Place.
Also then-Gov. Robert Bentley used $1.8 million in settlement money to renovate the dilapidated Governor’s beach mansion, which became known as the “Lov Govs’ love shack.”
The squandered BP funds are an example of how under Marsh and Hubbard’s leadership, the BP money was diverted from its intended use.
What the Ivey administration is trying to avoid is another repeat of the dubious spending spree Marsh and Hubbard oversaw with the 2010 Gulf oil spill settlement.
For now, the CARES money is parked in the Legislature and State Representative Steve Clouse, R-Ozark, who chairs the House Ways and Means General Fund Committee has said it would take a special session to resolve how the money will be spent.
Ivey said she would not call a special session unless there was assurance on how the money would be allocated.
All the CARES fund must be spent by December 31 and will require special expertise to use it all without running afoul of federal regulations or law-enforcement.
During the failed negotiations that led to the public feud that is now engulfing state government, Ivey suggested a six-person committee comprised of the two minority leaders and the four budget chairmen to decide how the funds would be spent. Marsh rejected Ivey’s proposal. But now it is time to revisit those negotiations before the divide between the executive and legislative branches become too wide to cross.
Over the weekend, not only did Marsh amp up the rhetoric blaming Ivey, so did other lawmakers. One even said Ivey could find herself “on an island” like Bentley in his final days in office.
Any legislator who believes their threats or insults will cow Ivey is as ignorant as they are delusional.
Ivey is widely seen as a strong, competent leader, while the legislative leadership with only a few exceptions is viewed as a bunch of greed gut opportunists, willing to rob from those in need to feed themselves.
It is time to put the grandstanding public bickering aside and come together to save the state, which means spending the CARES funds to help repair the damage, prepare for the next wave and mend those lives and institutions that are broken.
If not now, then the government itself will be weighed in the balance; let it not be found wanting.
Opinion | Legislature commits highway robbery with CARES funds
Money appropriated by the U.S. Congress under the CARES Act and signed into law by President Donald Trump to aid the State of Alabama due to the financial crisis caused by the COVID-19 pandemic was highjacked by the Alabama House and Senate this week.
Under the act, approximately $1.8 billion of the funds sent to Alabama were to be directly controlled by Gov. Kay Ivey.
However, Senate President Pro Tem Del Marsh, R-Anniston, refused to work with the governor on how to distribute the funds to best help the people of the state.
Instead, Marsh launched a financial coup — with the backing of the Republican Supermajority in the Legislature — to wrestle the money away from the governor and place it in the hands of a few lawmakers, setting the stage for what is becoming an ugly showdown.
Marsh has plenty of experience in these types of slick maneuvers, having worked with then-Speaker of the House (now a convicted felon) Mike Hubbard to snatch away BP Oil spill funds for projects and businesses for which the money was never intended.
The billion-plus given to Ivey’s office under the CARES Act must be spent by Dec. 31, 2020, but the legislative power-grab may see the money wasted or returned to the federal government.
When Marsh first approached Ivey, he proposed that a committee comprised of the governor and the General Fund chairmen of the House and Senate determine how the money would be spent on a majority vote, according to sources who spoke to APR on conditions of anonymity because they are not authorized to speak on the matter publicly.
Ivey’s legal counsel pointed out that such a committee arrangement would be unconstitutional.
Secondly, Marsh proposed the same people for the committee but bargained for a unanimous vote, which was still unconstitutional because the Legislature doesn’t have the constitutional rights of the executive.
Third, Marsh offered to give the governor $100 million as an incentive to do a backroom deal.
Those with knowledge of the discussions say, Ivey, at every turn, expressed a desire to work with lawmakers on how the funds would be spent. “Y’all, I have always planned on working with y’all,” as one person remembers Ivey’s sentiment.
Ivey suggested a six-person committee of the two minority leaders and the four budget chairmen to decide how the funds would be allocated.
This was the first time during negotiations that the minority was included. But Marsh and his team weren’t having it, according to those with knowledge of how the events unfolded.
“They said we don’t want an advisory committee; this is our money,” to which Ivey replied, “Hell no, it’s not your money. It’s the people of Alabama’s money.”
On Wednesday, Marsh and his team offered $600 million to the governor with the remaining funds left to the discretion of the Legislature.
By the end of the day on Thursday, the House had left $200 million at Ivey’s disposal, taking control of the remaining $1.6 billion to be spent on a so-called “wish list” of projects wholly designed by House and Senate leadership as Marsh had intended all along.
On Thursday afternoon, Ivey issued a statement saying in part that she wanted to work with the Legislature, but the spending process should be honest and transparent.
“I made it clear to Chairman Clouse that this money belongs to the people of Alabama, not the Governor,” said Ivey. “And, in my opinion, not even the Legislature. It comes to us in an emergency appropriation from President Trump and Congress to support the ongoing crisis that has killed 349 Alabamians, as of this moment, and wreaked havoc on our state’s economy, ruining small businesses and costing more than 430,000 Alabamians a job they had just a few weeks ago.”
She continued by saying “I have never desired to control a single penny of this money and if the Legislature feels so strongly that they should have that authority, I yield to them both the money and the responsibility to make good decisions – in the light of day where the people of Alabama know what is happening.”
But the Legislature has not passed the budget in the light of day because citizens are barred from the State House, and press access is limited. The problem is compounded by the fact that the Legislature is doing the bidding of a handful of power-mongers — not the people.
Much of what has occurred during the budget debates has been under a cloak of secrecy with backroom deals and high-handed political operations executed to place money in the hands of a well-connected and powerful few, far from the purpose of the CARES Act.
The Legislature should never have gone back into session, but now that they are there, they should stay until May 18, and do the job properly rather than rush through a haphazard budget that steals money meant to restore order to the lives of hardworking Alabamians.
The taking of the CARES Act money may not even be legal, and House General Fund Chairman Steve Clouse, R-Ozark, has admitted that a special session would be needed to finalize the spending of the CARES funds.
But the clock is running and the money must be spent by the end of December.
Ivey made it clear to Clouse that she would not call a special session, which is her legal prerogative, but the Legislature, determined to have its way, has ignored her warning.
Marsh’s actions and those of his followers is the height of arrogance because they are not hurting the governor, they are hurting the people they were elected to serve.
There are bills that must be paid from the COVID-19 outbreak, and there is a good chance that the state will be hit by a second wave of sickness and death, which will require planning and money.
But somehow a handful of lawmakers elected by fewer than 35,000 citizens each believe they are the fountain from which political and fiscal wisdom flows.
What’s happened over the last few days is a shameful legacy of Marsh and his cohorts.
It’s not their money. It’s not the governor’s money. It’s the people’s.
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