By Bill Britt
Alabama Political Reporter
“Our State needs so much help. There is such a lack of confidence in our elected leaders. The Ethics Commission can help restore that lost confidence,” said Dr. Stewart Hill Tankersley in a recent interview with the Alabama Political Reporter.
While he sees the Ethics Commission’s Executive Director, Tom Albritton, as a champion for a more efficient organization, he worries that the Commission could undercut Albritton’s determination to run an honest shop.
“There are so many problems on the top end that I hope Tom is not undercut by Commissioners,” Tankersley said.
While acknowledging the Commission’s lack of mission-focus and its unwillingness to adopt rules governing its members, Tankersley remains hopeful and offered some suggestions on how the Commission should move forward.
“I don’t think like a lawyer,” Tankersley said. “As a Medical Corps Physician, we have a mission, which is ‘Preserve the fighting force.’”
He said it is important for every organization to have a “go-to phrase” or perspective, so people understand where they are coming from. In this case, he said, “the Ethics Commission’s assignment is to ‘protect you from you.’”
Tankersley, a history buff, found the phrase in a story from World War II about an American Sergeant’s conversation with a German prisoner of war: “The German officer asked the sergeant, ‘Why didn’t you join us? We could have taken over the world.’ The American sergeant replied, ‘You don’t understand, we are here to protect you from you.’”
He says the Commission is not in the “gotcha” business; rather, it is there to protect people from making the kinds of ethical mistakes that can harm them as well as the State.
“Christ continued taking to task the Scribes and the Pharisees who interpreted the laws to their benefit. He didn’t do it for his benefit but for theirs,” said Tankskersley, a devout Christian.
Tankersley has witnessed things over the last several years that have shocked and baffled him, but he believes that Albritton and his staff are on the right path.
“The Commission,” Tankersley said, ‘[must] act as a guardrail to keep public officials from going over the edge into a ravine. … As a commission, we can’t skirt around the issues.”
But, as he points out, “the Commission doesn’t even follow Robert’s Rules of Order, the most widely used manual of Parliamentary procedure in the United States. “This has allowed the chairman [Judge Jerry Fielding] to vote to create a tie,” Tankersley said with dismay.
He is also concerned that the Commission has no formal rules on recusal.
“Judges have a formal rule for recusal, but we don’t,” Tankersley said.
This was on full display during the Ethics hearing over allegations against former Gov. Robert Bentley, which ultimately led to his resigning from office. During the nine hour hearing in April, Commissioner Butch Ellis, a Bentley appointee, sat through the entire nine-hours, hearing and aggressively questioning witnesses in closed session, only to recuse before the Commission was about to vote on the Bentley matter.
Commissioner Judge Charles Price, another Bentley appointee, voted no on the issue of Bentley using his position for personal gain. Both men wanted the complaint against Bentley to be forwarded to the Montgomery District Attorney’s Office even though the State’s Attorney General had an open and active investigation.
Operating in an environment without a formal procedure, where the Commissioners are not bound by the Ethics Laws they are charged with enforcing, exacerbates Tankersley’s concerns, who hopes the Legislature will step-in to clarify these and other matters.
However, it is unlikely, given the current political climate where the State’s appointed Attorney General refused to bring a long-planned ethics bill to the State House.
Attorney General Steve Marshall, appointed by Bentley, failed to follow through on his office’s commitment to “strengthen and clarify” existing laws. There are high hopes that Gov. Kay Ivey, who recently banned lobbyists from serving on State Boards and Commissions, will sponsor the ethics legislation originally drafted by former Attorney General Chief Deputy Alice Martin, Matt Hart, and agreed upon by House Speaker Mac McCutcheon, Senate President Pro Tem Del Marsh, and other stakeholders.
The general belief is that Marshall, who is raising money from PACs opposed to ethics reforms, backed away from supporting the new ethics package for fear of alienating deep-pocketed donors.
The Commission lacks defined rules and has, on occasion, ignored the laws they swore to uphold. Perhaps the most egregious example involved a State Representative who accepted a job with a non-profit for which one of her major duties was to lobby fellow lawmakers.
The trouble began in April 2015, when State Representative Patricia Todd (D-Birmingham) was named State Director of the Human Rights Campaign (HRC). According to its website, The Human Rights Campaign is America’s largest organization working to achieve lesbian, gay, bisexual and transgender equality.
Todd, a lesbian, is the State’s lone, publicly “out” lawmaker.
She is highly regarded, not only for her stand on LGBT issues but for her willingness to work across the aisle to find bipartisan solutions to the State’s inequities. Todd, during this period, enjoyed a warm relationship with former Speaker of the House Mike Hubbard, who would later be convicted of 12 felony counts of public corruption.
Among Hubbard’s convictions was lobbying while holding elected office.
Before taking the job at HRC, Todd didn’t request a formal opinion from the State Ethics Commission, something she would later do with encouragement from Hubbard.
On August 5, 2015, the Ethics Commission issued Opinion No. 2015-14, which, according to Attorney General’s Office and the State’s DA, “practically permits an interest group (HRC Alabama) to pay a Legislator (Todd) to lobby the Legislature and State and Local governments, we find the Ethics Commission’s legal analysis to be fatally flawed.”
The opinion was shepherded through the process by Edward A. “Ted” Hosp, an attorney with Maynard Cooper Gayle and, at the time, a registered lobbyist for HRC Alabama. Hosp has regularly appeared before the Commission in opinions that could upend State Ethics Laws.
Tankersley recalls a few occasions where he and Hosp had some rough dealings but declined to comment publicly on what the issues were about.
In the Todd opinion, Tankersley was the single dissenting vote.
“I couldn’t understand how can a Legislator could be allowed to lobby?” said Tankersley. “When it came before the commission, I requested her job description from the group. … It clearly said she would be lobbying for the group.”
He said other commissioners argued to allow the exception because HRC was a non-profit. However, as Tankersley points out, the law doesn’t mention any exception for non-profit groups.
“I’d never seen anything like it,” Tankersley said. “Very unusual.”
Hubbard included the Todd Opinion in a pre-trial motion to support his argument that legislators should be allowed to serve as lobbyists.
The opinion was reversed due to pressure from the Attorney General’s Office and serves as a reminder that some commissioners stray broadly from the black letter of the law.
Despite having no real code of behavior, enforced rules of order or a willingness by commissioners to ignore the laws, Tankersley remains determined to see the Commission succeed by exposing its weaknesses.
Tankersley suggests the Commission adopt Robert’s Rules of Order, the Legislature add commissioners to those who fall under the Ethics Laws and the Commission live by the same Canons of Judicial Ethics as State Judges.
According to former Ethics Commission Executive Director Jim Sumner commissioners are held to the same laws as other public officials under Section 36-25-3 which states, “(e) All members, officers, agents, attorneys, and employees of the commission shall be subject to this chapter. The director, members of the commission, and all employees of the commission may not engage in partisan political activity, including the making of campaign contributions, on the state, county, and local levels. The prohibition shall in no way act to limit or restrict such persons’ ability to vote in any election.”
The next article will focus on opinions before the Commission that would once again try to undermine the Ethics Code as written.