Two bills designed to dramatically alter current ethics laws were approved by the House Ethics Committee last week. As introduced in the House, HB387, sponsored by Republican lawmaker Rep. Rich Wingo, would among other things allow public officials to hide potentially illegal acts under a new notifications rule. Wingo’s bill is companion legislation to SB221, sponsored by Republican Sen. Trip Pittman.
Another stab at rewriting current ethics laws is found in HB432, sponsored by Republican Rep. Alan Baker, which will greatly expand the powers and purview of the executive director of the Ethics Commission.
Earlier this month in a press conference, Republican lawmakers Senate President Pro Tem Del Marsh, Attorney General Steve Marshall, Ethics Commission Executive Director Tom Albritton, Speaker of the House Mac McCutcheon, Sen. Arthur Orr and Rep. Mike Jones seemed to signal a halt to any new ethics legislation during the current legislative session.
In announcing a newly formed commission to study and make recommendations as proposed by SB343, these powerful Republican legislators said the issue of ethics reform was better left until the 2019 legislative session.
However, last week, without the simplest acknowledgment of irony, HB387 and HB432 were championed by House Ethics Committee Chair Rep. Mike Ball, R-Madison. Ball, an intemperate critic of the laws that convicted his friend, former Speaker of the House Mike Hubbard, hustled the bills out of his committee despite leadership’s suggestion just days earlier.
Ball not only defended Hubbard after his conviction on felony offenses, he has also repeatedly accused the state prosecution team members of criminal acts during Hubbard’s trial. Despite Ball’s unfounded claims and outspoken desire to kill ethics laws that convicted Hubbard, he remains head of the House Ethics Committee.
HB387 and HB432: Potential for Mischief
A detailed analysis of the two bills’ potential damage to state ethics laws is perhaps too exhaustive to enumerate without it becoming a somnolent potion, however, even a top-level reading of the bills casts light on just how dangerous these laws could be in the wrong hands.
Pittman-Wingo deals a blow to transparency
On its face, the Pittman-Wingo bills do little more than create a meaningless “notification” requirement. But a deeper dive shows that under this new notification provision, a lawmaker may take a job or a consulting contract with a principal – forbidden under current law, or any business without seeking an ethics advisory opinion.
Under this statute, the Ethics Commission is neither authorized or required to do anything at all with the notification, and while the lawmaker’s employment would be public record, someone would need to know about the filing to ever know to look for it.
These bills, as written, make no distinction between consulting contracts from principals or other businesses that do not hire lobbyists.
As APR has pointed out on numerous occasions, all revisions, additions or alterations to the present Ethics Act must be viewed in light of the Hubbard prosecution and conviction.
Under the Pittman-Wingo scheme, with a simple notification to the ethics commission, legislators may enter into a consulting contract or job without needing a review.
Imagine the fun Hubbard’s lawyer would have had with this statute.
“Thank God, for these notifications. Poor Mike filed his paperwork with the commission, and now the attorney general from Timbuktu is trying to throw this good-Christian-family-man in prison for just working to put food on his family.”
These are just a few examples of latent possibilities for misconduct under the Pittman-Wingo scheme.
Expanding powers of the executive director
HB432, carried in the House by Rep. Baker, with its companion legislation, sponsored by Sen. Cam Ward – both Republicans – would significantly expand the sphere of influence of the Ethics Commission’s executive director.
Any examination of laws governing the state ethics commission should begin with questioning the effectiveness of the commission as it presently functions.
Comprised of political appointees who, at times, appear to rule with the caprice of a Marseilles madame, the commission on occasion has created laws while stretching the existing ones beyond any reasonable facsimile of their intended meanings.
The commission’s executive director is hired by the commission and is likewise subject to its whims or will be fired.
A summary of the bill’s intentions, as APR discussed with Ward and Ethics Director Tom Albritton, would permit more flexibility for minor ethics violations and allow the director to “self-generate[d]” a complaint. It would also empower the director and his staff to go beyond the “four corners” of a complaint. If passed in its current form, these companion bills would authorize the director to bypass the state’s attorney general or district attorneys in favor of the U.S. attorney in public corruption cases.
Some of these provisions run counter to current law and give unelected bureaucrats more power and influence than they already command.
While granting the executive director more flexibility on minor offenses, it would seem wholly imprudent to undermine the attorney general’s role as a constitutional officer and top law enforcement official in the state. With this in mind, should the law allow political appointees to usurp power granted to the attorney general?
If enacted, these bills would massively expand the investigative authority of the commission. Current Director Albritton has argued publicly that the commission already has power to self-generate a complaint, and that is true, but only by degrees. There is a process whereby the commission can initiate an investigation without receiving a formal complaint from outside sources. A procedural process is currently in place that somewhat safeguards against an unscrupulous use of an ethics investigation. Director Albritton may never abuse his power, but that doesn’t mean the next director will not.
There are other questions unanswered by these bills that should be thoroughly vetted before passage.
President Pro Tem Marsh said of sweeping ethics reforms, “It deserves all the questions to be asked to make sure we are covering everything.”
A piecemeal approach has been rejected by most in Republican leadership. Perhaps it’s time for Ball and others to follow suit.
Opinion | Hubbard did the crime; he should do the time
Hubbard may not be a violent offender but his actions are a danger to society and a threat to the public.
Attorneys for convicted felon, former Speaker of the House Mike Hubbard, believe he has suffered enough, and his sentence should be reduced because six of the charges against him were overturned on appeal.
The remaining six counts against Hubbard call for a prison term of four years, 16 years probation, and substantial fines independent of the charges the upper courts set aside. Therefore, there exist no reasonable grounds under which trial Judge Jacob Walker III should lessen Hubbard’s sentence.
This action on Hubbard’s behalf is simply another attempt to subvert justice.
A Lee County jury found Hubbard guilty of twelve counts of public corruption, most notably using his office for personal gain and using state resources and personnel to enrich himself—and those counts still stand.
The Court of Criminal Appeals rejected Count 5, and the Alabama Supreme Court struck down another five, which primarily dealt with the charges surrounding “principals.”
The upper-court’s finding appears more political than judicial, but most people in the state are used to jurists who bend the law for the rich and politically connected.
Of the remaining charges against Hubbard, five carry a ten-year spit sentence of two years in prison and eight years probation, and one count has a six-year split sentence with 18 months in jail with the remainder served on probation.
Why would Judge Walker reverse his judgment since the appeals process left in place the charges that carry the very sentence he imposed?
Does Judge Walker think he erred in his sentencing? Does he now, in retrospect, believe he was unfair as Hubbard’s lawyers contend?
Hubbard’s appeal is merely more subterfuge and trickery disguised as a legal argument.
Astonishingly, in their latest filing, lawyers, David McKnight and Joel Dillard, assert that Hubbard is not “a danger to society, nor a threat to the public” as a reason to let him out of prison.
Hubbard may not be a violent offender but his actions are a danger to society and a threat to the public.
Prison is not only for brutal inmates it is also for those who break a certain class of laws. Because a felon wears a thousand dollar suit doesn’t mean they deserve less jail time.
Hubbard’s crimes are some of the most heinous perpetrated against civil society.
Public corruption undermines the rule of law and the principles of good government and is an offense more potent than property theft, drug use, or other nonviolent crimes because it rips apart the very fabric of society and its trust in the foundations of the republic.
A corrupt politician’s actions subvert the very meaning of representative government.
Hubbard is not now a danger to society, or a threat to the public because he is behind bars. But make no mistake he is a menace to public good. Even before his indictment, Hubbard used every scheme at his disposal to thwart justice, entice lying and manipulate public trust. And now he wants one more shot at corrupting the system.
There are only two occasions when every individual should expect equal treatment: when they stand before a court of law and when they stand before their maker. Yes, a wealthy defendant like Hubbard can afford better legal representation, but it doesn’t mean he can purchase special justice.
Hubbard has been given preferential treatment by lawmakers, the media, and even some on the courts. All along the way, Hubbard was handled with kid gloves and given unwarranted privilege.
McKnight and Dillard argue with a straight face that letting Hubbard out of prison early will, “Preserve scarce prison bed-space for habitual offenders and others from whom society needs protection… [and] more likely result in the defendant’s rehabilitation than incarceration.”
The word rehabilitation is used several times in Hubbard’s most recent court filings as if somehow allowing him to avoid prison time will serve to rehabilitate him. To this day, Hubbard doesn’t believe he’s committed a crime, so how is rehabilitation possible?
His attorneys lastly make the most laughable argument possible by indicating Hubbard has suffered enough.
“[The] Court should consider the punishment that Hubbard has already suffered. The convictions in this case alone have resulted in a wide range of punishments which include his removal from office, the loss of his right to vote, the divestment of his business interests, and his current incarceration.”
When lawmakers break ethics laws, it upends society because it shatters trust while nullifying the social contract that binds us together in peace and safety.
State ethics laws are an attempt to force the government to rule themselves honestly.
Hubbard ignored the very ethics laws he championed and would do it all again.
He deserves punishment for his unlawful acts, and his prison sentence should stand as a reminder to others that justice doesn’t play favorites.
Hubbard did the crime, and he should serve the time.
Perspective | Can the Legislature write a stronger, clearer and enforceable ethics code? There’s a way
When the cell door closed behind former Alabama Speaker of the House Mike Hubbard at 5:05 p.m. on Friday, Sept 11, 2020, there was a momentary sign of victory, but also a chill braced the state’s political landscape.
What happens next will be most consequential as the Alabama Supreme Court, and to a lesser degree the Court of Criminal Appeals, set in motion a need to rewrite certain aspects of the Alabama Ethics Act.
Due to the court’s tortured opinion, the Legislature will be forced to revise portions of the ethics statute to correct the so-called flaws the court found.
The question is, will they refine and reinforce the statute or dilute and weaken it?
Given the recent legislative history, the chances are likely that they will opt for the latter unless the press and public pay scrupulous attention to any changes to the present legislation.
Fortunately, there already exists a framework from which the 2010 Ethics Act can be rewritten to make current law better.
And there are some faint but encouraging signs that not all lawmakers and public officials will work to undermine the law. But in Alabama politics, there is often a vast sea of gray between what politicians say and what they do.
In April, when the ALSC tossed six of Hubbard’s convictions, current Speaker of the House Mac McCutcheon said, “The Supreme Court’s ruling has made it clear that our ethics law has flaws that must be addressed. Our task now is to fix those flaws without weakening any of the provisions that make our ethics law among the toughest in the country.”
After the court’s ruling, Gov. Kay Ivey released a statement saying, “I support seeking clarity on our state’s ethics laws to ensure those who want to abide by them may not be unfairly targeted,” Ivey said. “However, let me be abundantly clear, I do not support weakening a system that is meant to hold our elected officials accountable. The rule of law must be upheld.”
Attorney General Steve Marshall’s comments on the courts finding were on target, “While I am pleased that the Supreme Court agreed that former Speaker Hubbard broke the law and will be held accountable for his abuse of power, I am also disappointed in the court’s interpretation of Alabama’s ethics law concerning the definition of a principal,” Marshall said. “While I can live with the court’s insistence on a clearer definition of principal, going forward, that definition must also be strong.”
The court’s ruling on principals smells more political than judicial. The current definition is not necessarily murky but has jeopardized some of the state’s political and business elites.
Ethics reform legislation that strengthened and clarified the Alabama Ethics Act of 2010, was approved by Republican House and Senate leadership in 2017, but quietly died because of politics as usual.
The legislation was written under the guidance of then-Attorney General Luther Strange with Matt Hart and Mike Duffy of the Special Prosecution Division taking the lead.
Lawmakers, ethics experts, and stakeholders were consulted throughout the process and eventually agreed that the bill would fix major concerns found in the 2010 Ethics Act.
An annotated version of the bill is still available on the attorney general’s website, where it could be quickly taken out of mothballs and prepared for passage.
This existing bill would substantially improve, the Alabama Ethics Act. It also codifies current law and can easily be updated to include the decisions of the Alabama Supreme Court and the Alabama Court of Criminal Appeals and various advisory opinions from the Alabama Ethics Commission.
The proposed legislation from 2017 achieves three important goals: (1) encouraging honest people to serve in government by clearly defining the line between legal and illegal activity; (2) creates a clear and definite process through which people serving in government can obtain guidance regarding where a particular situation falls on that line; and (3) ensuring that those persons who violate the public’s trust are held accountable.
Specifically, the Act has been revised as follows: Improves the definition of “principal” to make clear that any person in a business that directs the activities of a lobbyist is a principal, while others in the business or on boards are not necessarily principals. This bill also gives the Ethics Commission more flexibility in identifying principals in disclosure forms.
Enforcement for minor violations is improved by giving the Ethics Commission and attorney general or appropriate district attorney more flexibility, subject to specified criteria, in resolving minor violations through administrative resolutions for public employees.
This bill also narrows the Act’s application to lower-level public employees to ease compliance and improve enforcement. To that end, it exempts grade school teachers, higher education athletic coaches, police officers, firefighters, and other first responders from the limitations on taking things of value from lobbyists and principals, filing statements of economic interest, and asking a lobbyist for something. Additional lower-level public employees are also exempt from filing statements of economic interests. The bill further provides discretion for the Ethics Commission and the Attorney General to exempt any class of public employee supervisors, subject to specific criteria.
The framework of the 2017 presented legislation offers many needed additions and restrictions.
The legislation offered in 2017, had a broad agreement, among lawmakers, business interests, lobbyists and others, and while massive, it was painstakingly reviewed and revised.
Hubbard’s imprisonment and the court’s ruling opens a door for the Legislature to create an even better ethics act, but it must be done with care and subject to rigorous oversight.
Justice prevailed in the Hubbard case even while it was assaulted at every turn.
Now it’s time for the Legislature to ensure that the ethics code is more robust, precise, and enforceable.
Opinion | Mike Hubbard: Prisoner No. 1
Former Alabama House Speaker Mike Hubbard is now the state’s most famous inmate, and as prisoner No. 1, he deserves no more and no less than to serve his time in a state correctional facility.
When former Republican Speaker of the House Mike Hubbard turns himself in to began his four-year sentence a few days from now, he will be the most high-profile inmate in Alabama’s state prison system.
Many suspect that Hubbard will be granted special considerations because of his connections and wealth, but that would be a travesty of justice.
Hubbard committed crimes against the people of Alabama and should serve out his sentence like any other criminal.
“Public corruption tears at the fabric of our communities and our national security,” according to the FBI. “Elected or appointed officials are entrusted and expected to protect the interests of the people with integrity. When that trust is betrayed, the security and stability of our government is put at risk.”
Among his many crimes, Hubbard used his elected office for personal gain, used public resources and personnel to illicit millions illegally to enrich himself.
During his time as speaker of the house, Hubbard presided of an orgy of greed and corruption; he swindled businesses and used his office’s power to destroy lives, all while building an empire on deception.
When he sold his office for ill-gotten profits, his family earned around $500,000 annually with a net worth in the neighborhood of $8 million. But Hubbard was not satisfied; he wanted more. To Hubbard, voters were fools, legislators pawns, and big-business patrons all there for his use.
Before his conviction and afterward, Hubbard used every avenue of the justice system, legal and extra-judicial.
To keep Hubbard from justice, lawmakers, lobbyists, financial backers and some of the most prominent names in the state worked to undermine the judicial process.
Even the Alabama Supreme Court twisted its final opinion on his guilt like a Cirque du Soleil contortionist reluctantly saying in essence, “We are sorry to send you to prison, Mike, but we have no other choice.”
It is up to the Department of Corrections to make sure that Hubbard does every day of his sentence behind bars in state prison.
There should be no more special treatment for Hubbard because he is wealthy or once held sway over Alabama politics.
Today, Hubbard is a criminal who stole when he didn’t need to, cheated when the rules were inconvenient and abused people and the political system because he could.
Hubbard must not be permitted to serve his time in county jail. He should not be set free because of the prison’s health hazards or overcrowding. Hubbard never lifted a finger for inmates’ health or prison conditions.
Hubbard disgraced himself but feels no remorse. He dishonored the state and must pay for his crimes.
Hubbard is now the state’s most famous inmate, and as prisoner No. 1, he deserves no more and no less than to serve his time in a state correctional facility.
Opinion | Our state needs a think tank devoted to Alabama solutions for Alabama problems
Public policy is a complex issue, and scholars disagree on how to express it best. Still, in general, it is a system of laws and regulations that translates political visions into government actions.
For over a century—especially in the United States—think tanks have contributed to government policymaking.
Alabama needs a think tank that is truly devoted to what Gov. Kay Ivey describes as “An Alabama Solution to an Alabama Problem.”
“Think tanks play a critical role in analyzing, developing, and promoting policy solutions, particularly in times of extreme disruption and change,” according to a series held at The Wilson Center. “However, these organizations now operate in information-flooded societies where facts, evidence, and credible research are often ignored — and where ‘alternative facts’ and ‘fake news’ can gain a footing,” the symposium found. “To remain relevant and impactful, think tanks and policy institutes must simultaneously pursue rigor, innovation, accessibility, and accountability more than ever before.”
Distilled to its essence, a government’s policies, like politics, results in who gets what and how. Here in Alabama, far too often, systems are designed to benefit the few while ignoring the many. Even worse, laws and regulations have been used to control and, at times, abuse citizens for the benefit of those in power.
Even among Alabama lawmakers and policy groups, the tendency to embrace “alternative facts” and “fake news” is problematic. This fluid situation has made fact-based, evidence-driven policies more essential than ever as substandard or deliberately false information leads to harmful and sometimes fatal outcomes.
Therefore, it is time for an independent think tank that works to address the state’s unique needs with ideas that arise from the state’s distinctive character and abilities.
Policy groups come in all shapes, sizes, and political leaning. Most notable, The Heritage Foundation and Brookings Institution are broadly representative of the conservative and progressive wings of nationally recognized institutions.
The Heritage Foundation, founded in 1973, is an ideologically conservative institution that owes much of its rise to prominence for the role it played in shaping the conservative movement during the presidency of Ronald Reagan.
The Brookings Institution, established in 1916, is a progressive-leaning organization and has contributed to the creation of the United Nations, the Congressional Budget Office, the Marshall Plan, and various other institutional policies.
A more recent group is the Bipartisan Policy Center, founded in 2007, by former Senate Majority Leaders Howard Baker, Tom Daschle, Bob Dole, and George Mitchell. BPC says it actively works to address critical national issues while promoting bipartisanship.
There are nearly 2000 national and state policy institutes, but Heritage, Brookings and BPC represent an ideological mix.
In today’s world of both politics and policy, beyond the ideological spectrum is a one-size-fits-all groupthink that ignores the fact that while there are similarities between states, there are also many differences.
While Georgia, Florida, Mississippi, and Alabama may share some common political ideology, its needs, goals and individual priorities vary.
Can Alabama learn from other states? Indeed, but a wholesale adoption of one state’s solution to another state’s problems disregards the governments’ individual nature.
Alabama’s 1901 Constitution and its two separate budget tracks present extraordinary challenges when formulating paths for governing.
The Republic’s founders understood that each state is its own entity, which is why we have a representative government. This exceptional form of government acknowledges the Republic’s abundant diversity, giving each state its independence.
Our country has a long tradition of private rather than public funding for think tanks, which has contributed to a better understanding of public policy and a better market place for robust ideas.
Alabama is currently home to three different policy organizations with distinct objectives.
Mises Institute, located in Auburn, is a world-respected organization that “exists to promote teaching and research in the Austrian school of economics, and individual freedom, honest history, and international peace, in the tradition of Ludwig von Mises and Murray N. Rothbard.”
Birmingham-based Public Research Council of Alabama (PARCA) prides itself as Alabama’s first and only independent research center. Its mission is to inform and improve the decision making of state and local leaders in Alabama through objective research and analysis. PARCA’s studies center on “state and local finances and taxes, school performance, workforce development, and government operations.”
The Alabama Policy Institute, also located in Birmingham, says that it “is an independent, nonpartisan, nonprofit research and educational organization dedicated to strengthening free enterprise, defending limited government, and championing strong families.”
Of the three, API is the most political and is far-right leaning in its research and advocacy.
According to public IRS filings, operating expenses for the three groups range from around $800,000 annually for API and PARCA to over $4 million for Mises.
While these institutions play a role, lobbyists and special interests hold more significant sway over state policy, spending millions more than these think tanks could ever raise.
Public policy shouldn’t be determined entirely by private interests any more than the government should dictate every aspect of private enterprise.
Policymaking should be “a goal-driven decision-making process,” which reserves “a great deal of autonomy” in how an organization carries out its work,” according to Thei Geurts in his book Public Policy Making – the 21st Century Perspective.
Lastly, sound public policy should be stakeholder-driven— the people and not a tool to reward a few. It must be fair, honest and address the most pressing immediate needs, with an eye to the future.
In other words, Alabama solutions for Alabama problems.