By Bill Britt
Alabama Political Reporter
“Somebody should do something.”
After nearly five years of being rebuffed for his common-sense stance on the Ethics Commission, Dr. Stewart Hill Tankersley is doing something significant: Exposing institutional corruption and the particular failings of the Commission, sworn to hold every public official to the letter of the law.
Tankersley’s interview with APR confirms what close observers of the Commission have seen over the years. By peeling back the ugly mechanisms of an almost lawless Commission, Tankersley has exposed members who routinely entertain ex parte meetings with those seeking favorable outcomes on advisory opinions. Will it stop? Will these revelations curtail the practice of granting sweetheart rulings for lawyers, lobbyists and their well-heeled clients? Will the Legislature step in and follow through on the ethics reform package prepared by the Attorney General’s Office for last session?
Tankersley’s candid insight reveals a Commission that operates without oversight, where fixed rules and procedures are few and exceptions are many.
After publishing Parts One and Two of APR’s Exit Interview with Tankersley, he has found that effecting change has its cost, as some of the State’s powerful elites have pushed back against him. For now, they’re content to nitpick around the edges of his disclosures while privately seething at Tankersley’s bold revelations.
For instance: Birmingham-based attorney, J. Mark White, sent a letter to the Commission, complaining about Tankersley’s observation that Commission Chair Jerry Fielding had called on him during a suspect Ethics hearing, even though White was not registered to speak at the meeting. White responded by saying his partner was signed in to speak and did. Obtuse whining by thin-skinned attorneys apparently is the norm for a Commission that appears to favor the well-connected.
Tankersley has little to fear from such piffling retorts as his integrity and years of medical, military and public service shielded him from such silliness. Undeterred, Tankersley says he will continue his crusade to restore trust in the State’s institutions without fear or hesitation.
With less than a month remaining on his appointment as a member of the Ethics Commission, Tankersley will likely vote on two significant advisory opinions that could upend the meaning of Ethics laws as they are presently understood.
While he would not comment on these opinions in APR’s interview, his public comments are enough to show the weight he puts into deciding these impending decisions.
One request for an opinion pertains to the revolving door statute and the other to conflicts of interests when working in economic development.
The first issue before the Commission is whether, under current law, former Acting Finance Director, Bill Newton, can open a consulting firm, despite a ban on public officials being allowed to “lobby,” within two years of leaving government service.
Newton is being represented by the same law firm that unsuccessfully represented disgraced former Speaker of the House Mike Hubbard during his criminal trial.
Tankersley at a recent Commission hearing said, “The purpose of the two-year revolving door statute is to keep somebody from rigging the system to set themselves up to walk out the door the next day and use the system they had created to benefit themselves.”
Newton, who was pushed out as Acting Finance Director, signed hundreds of millions of dollars in contracts for State goods and services over his years in government. He is now asking, according to his attorney Joel Dillard, “Would I [Newton] violate Code Section 36-25-13(f) if, under my plan, and within the two-year period after termination from office or employment, I provided the professional services of advice and consultation to my clients in connection with a non-judicial matter?”
Subsection (f) was revised to become subsection (g) and is part of the greater language that prohibits public officials or public employees from representing clients, including his or her employer before a board, agency, commission, department or legislative body, within two years after departure from government service.
Newton, a lawyer himself, wants the Commission to approve his consulting business because he says he will be providing “professional services of advice and consultation to my clients in connection with a non-judicial matter.” The odd phrasing here “my clients in connection with a non-judicial matter (singular)?” is because of the construct of Subsection (g). In this section, Newton sees an opening to circumvent the revolving door statute based on a wishful interpretation of one sentence in the code.
Subsection (g) reads in part, “No former public official or public employee of the State may, within two years after termination of office or employment, act as attorney for any person other than himself or herself or the State, or aid, counsel, advise, consult or assist in representing any other person, in connection with any judicial proceeding or other matter.”
In this sentence, the word judicial is being used as an adjective to modify the proceeding word. If the code stops there or isn’t followed by, or other matter, then it would be talking about one thing.
Even if it read, “judicial proceeding ‘AND’ other matter” it would only be referring to judicial proceedings; but it doesn’t.
The code reads, “judicial proceeding or other matter.” The word other in this sentence is an adjective, which modifies matter. Therefore, a strict reading concludes that it is referring to groups other than lawyers. This may not be the intent of the draft, but that’s what it says.
Newton is hoping it will be interpreted, as if it only applies to lawyers in a judicial proceeding, giving him a way around the revolving door statute.
Lawyers, as Tankersley has pointed out, are often seen as looking for ways to navigate around State Ethics Laws for their clients and themselves. In his Exit Interview with APR, he spoke about a time when he found a provision in a piece of legislation, that would have excluded attorneys from the Ethics laws altogether.
“When tucking campaign finance under the Ethics Commission, someone slipped in a simple amendment that the Ethics laws did not pertain to lawyers,” Tankersley said. He says Ginger Avery, who represents the Trial Lawyers Association, was called to explain the exception but, “she said she was shocked it was in the Bill. After hearing Avery’s response Tankersley said, “good then we can remove it.”
Catching sneaky legislation and lawyerly attempts to circumvent the intent of the Ethics Code, places an extra burden on part time commissioners, Tankersley believes. “The one suggestion I have for an incoming commissioner is: be ready for a lot of work and read the statutes and know them.”
It’s not only lawyers but business interests that want exemptions from the Ethics rules, which leads to the other important vote Tankersley will most likely cast before his time on the Commission expires.
The Commission is being asked to allow those in economic development to be excluded from the Ethics laws. Currently, those who participate in economic development are required to register as lobbyists. Those who want to be exempt from economic development from lobbyist-type restrictions claim it places an undue burden on those working to bring business to the State.
Secretary of Commerce Greg Canfield is a supporter of lifting the lobbyist requirements.
While Tankersley withheld his opinion when speaking with APR, he has in the past said that if a legislator’s full-time job is economic development than it would be improper, because, in his opinion, that would be lobbying while serving as a lawmaker.
Emails uncovered in the Hubbard criminal trial showed that Hubbard wanted former Governor-turned-lobbyist Bob Riley to forgo his lobbyist registration and claim he was merely engaged in economic development. When crafting the current Ethics code, Riley saw that his young protege, then-Senator Bryan Taylor, wrote the right exceptions for the type of work Riley wanted to engage in, according to those who witnessed the process. During his tenure as Governor, Riley doled out millions in economic incentives to companies which he later would represent as a lobbyist. Hubbard thought there was a way around registering as a lobbyist, which would have given Riley greater latitude to grow his consulting business without the constraints of the Ethics Laws.
Flouting Ethics Laws is what landed Hubbard in trouble and led to his conviction on 12 felony counts of public corruption. He called it economic development, but the jury found it was a crime.
Now, it appears the Commission is being asked to codify Hubbard’s activities as just business as usual. It is important to note that Hubbard’s case is under appeal pending a ruling by the State’s Court of Criminal Appeals.
An exception for those who conduct economic development appears to be yet another rouse to thwart the spirit and intent of the laws.
Tankersley hopes to see the Legislature address the issues he has raised. He would also like to see changes to the statements of economic interest filings that would demand public officials to report any money they receive from gaming interests including any casino winnings. He would also like to see lawyers report individual clients on the SOEI forms like any other public person.
The State’s appointed Attorney General, Steve Marshall, has shied away from making waves on the Ethics front, as a host of special interests continue to push to further weaken Marshall, leaving the people with little reason for confidence in the system as it stands. However, there is a group of lawmakers intent on bringing Legislation to fix some if not all of the problems highlighted by Tankersley.
His service to the State is an example to all Commissioners who will follow him.
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.
Analysis | Sheriffs’ revolt part of political stagecraft
Several Alabama sheriffs with the support of some state legislators are refusing to enforce the state health order that restricts certain activities to stem the spread of COVID-19, which has infected more than 9,000 Alabamians and claimed the lives of at least 369 individuals.
However, the sheriffs’ refusal to enforce has now become a subplot in the political stagecraft being written around alleged infringements of personal liberty.
The actual law is clear under Alabama Code section 22-2-14: a failure or refusal to obey or comply with any rule or regulation adopted and promulgated by the State Board of Health is a misdemeanor crime.
The statute reads, “Any person who knowingly violates or fails or refuses to obey or comply with any rule or regulation adopted and promulgated by the State Board of Health of this state shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $25.00 nor more than $500.00 and, if the violation or failure or refusal to obey or comply with such rule or regulation is a continuing one, each day’s violation, or failure or refusal shall constitute a separate offense and shall be punished accordingly.”
One of the major duties of a sheriff is “ferreting out crime,” according to the Alabama Sheriffs Association’s Executive Director Bobby Timmons.
Timmons, who has led the Association since 1975, says that sheriffs can’t pick and choose which laws they will enforce. But he also contends there has been some misunderstanding in the press as well as among sheriffs.
“The governor can not make a law,” said Timmons. “She can issue an order.” Likewise, “the department of public health can issue an order,” and it has the weight of law, “under Alabama Code session 22-2-14.”
Timmons says that Attorney General Steve Marshall “needs to issue a letter of instruction as to what needs to be done and how to carry it out.”
But Marshall is playing along with those who are making the safer-at-home order a political hot button.
In a statement to Al.com, Marshall’s office said, “The Attorney General agrees that enforcement of the order against churches would be ill-advised. He has been assured that the state health order will soon be amended to better accommodate the free exercise of religion.”
While sheriffs in Lamar, Marshall, Blount, Baldwin and Franklin Counties have stated varying degrees of resistance, lawmakers are taking advantage of the turmoil.
Republican state senators on Wednesday used the crisis as an opportunity to change the law that gives the Public Health Officer authority.
Senate Bill 334 would automatically end a state of emergency after just 14 days unless an extension was approved through a joint resolution from the Legislature.
Such power grabs are not unusual in times of intense political upheaval, but the bill will likely die with a whimper if it ever makes it to the House.
A small band of protesters marched around the State House and Capitol on Tuesday, demanding the Governor lift the latest restrictions.
Led by former State Sen. Paul Sanford, R-Huntsville, under the banner of a group called Alabama Small Business Coalition, the marchers called for Ivey to quickly reopen the state’s economy.
Sanford said the protest was “kind of an organic thing.”
“We just want the Governor to know that there is a lot of business owners that are hurting. They want to get back to work,” Sanford said. “The best thing you can do for small businesses is an opportunity to reopen. They are not asking for handouts. They are asking for the opportunity to do what they do best, and that is their own operations.”
Freshman State Rep. Will Dismukes, R-Prattville, took it a step further, saying, “I don’t know why we are continually being oppressed, and we have so much governmental overreach.”
Unconstitutional government overreach has become a battle cry for many conservatives not only in Alabama but around the nation.
The United States Supreme Court on Wednesday declined to lift a Pennsylvania order that shut down all of nonessential businesses due to the coronavirus pandemic.
The suit was brought by a group of Pennsylvania businesses asking for a stay to halt the enforcement of the state’s restrictions on businesses, arguing that they have done “substantial, unprecedented damage to the economy,” according to a report by U.S. News. “The high court denied the stay without any reports of dissent among the justices.”
The court’s action seems to indicate that nothing constitutionally evil is at hand, but that doesn’t stop the political gamesmanship, which is now part of the novel coronavirus landscape.
The sheriffs’ refusal to enforce the law is not strictly a political matter. Alabama Code session 22-2-14 is the law. Sheriffs and other elected officials in the state take an oath of office to support the state’s constitution and to faithfully and honestly discharge the duties of their office. Failing to do so is a breach of that oath and could lead to removal from office.
But this is politics, not a public health issue or a constitutional one, and so, the loudest voices will gather attention while the COVID-19 pandemic rages.
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