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Prosecutors ask for rehearing on overturned Hubbard count; Hubbard continues appeal

Chip Brownlee | The Trace

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The Attorney General’s Special Prosecutions Division is seeking a rehearing on the only overturned count of former Alabama House Speaker Mike Hubbard’s 2016 felony ethics conviction.

At the same time, Hubbard’s defense team is seeking a rehearing, too, asking the court to reconsider its entire opinion upholding all but one of the 12 guilty verdicts in his case.

Both teams filed their applications for rehearing on Monday, two weeks after the court released the long-awaited 160-page decision that delivered yet another blow for Hubbard and his legal challenges.

Under Alabama law and appellate rules, a person must seek a rehearing before appealing their case on to the Alabama Supreme Court, which would provide a final ruling in the case, should they choose to hear it.

The Court of Criminal Appeals, the five-judge panel that hears all criminal appeals in the state, issued their ruling on Aug. 28. The court ruled there was sufficient evidence to convict the former Auburn Republican on 11 of 12 charges against him that he used his office for personal gain.

Among those were charges that he received asked for and received improper investments for his Auburn printing business and work opportunities from lobbyists and principals (those that hire or employ lobbyists).

Though he was sentenced to four years in state prison, Hubbard remains free on bond until his appeal is complete. If the Supreme Court takes his case, it could be two more years before he serves jail time, at which point it would have been four years and he could have completed his sentence.

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Hubbard’s appeal argued that prosecutors used an overly broad definition of the state’s ethics laws, engaged in prosecutorial misconduct and misused former Ethics Commission Executive Director Jim Sumner’s testimony to get the speaker convicted.

While the court largely upheld the state ethics laws Hubbard was convicted of violating, the jurists also criticized the state Legislature for what they said were ambiguities in the law, calling on them to make urgent clarifications.

The only count overturned was Count 5, and the state is seeking to rehear that decision.

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The court overturned the part of the verdict that found Hubbard guilty of voting on a piece of legislation — the 2014 state General Fund Budget — with which he had a conflict of interest.

That count related to Hubbard’s contract with the trade organization American Pharmacy Cooperative Inc. He was found guilty of voting in 2013 on the general fund despite language in the bill that would have benefited APCI all while he was receiving a $5,000 monthly retainer through his Auburn-based business Auburn Network Inc. for consulting.

The court found the state didn’t prove that Hubbard had a true conflict of interest as defined by law because they said he did not meet the definition of an employee, choosing to overturn that count on the basis of state law’s definition of a “public employee” because no definition of “employee” was readily available.

That budget included a provision that would have effectively given APCI a monopoly over the State’s Medicaid prescription contracts. The provision would have set APCI up to be the only entity in the State that would have met the requirements to be Medicaid’s pharmacy benefits manager, which would have handled all buying and selling of drugs for the State’s beneficiaries.

After initially opposing the adoption of a PBM to manage the state’s buying and selling of drugs for the state’s beneficiaries, APCI crafted language that would have required whatever PBM that was chosen to represent 30 percent of the retail pharmacies in the state.

APCI was the only organization that could have met that requirement.

The state, in their application for a rehearing, points to Hubbard’s relationship with Auburn Network and Auburn Network’s broader connection with APCI. Auburn Network and Hubbard both had a substantial financial interest in APCI because the organization was providing $60,000 per year in wages and fees.

State prosecutors, led by Deputy Attorney General James Houts and Matt Hart, argue the court overlooked “the leverage possessed by APCI due to its ability to terminate the contract ‘at any time.”

Moreover, prosecutors said the court erred in constructing an impromptu definition of an “employee” by reworking the given definition of “public employee.” The court found that state law requires a state employee to receive more than 50 percent of their income from the state to be considered a public employee.

When that definition was co-opted for a definition of “employee,” Hubbard didn’t qualify as an employee of APCI because he didn’t receive 50 percent of his income from the organization.

Prosecutors wrote said the court’s decision there was “demonstrably wrong and conflicts directly with Alabama Supreme Court precedent,” adding that just because a term doesn’t have a given definition, doesn’t mean it isn’t applicable, pointing to Supreme Court precedent that states that the “natural, plain, ordinary, and commonly understood meaning” of a word should be used unless a more specific definition is provided.

“The inclusion of a definition for ‘public employee’ implies the need for a definition beyond its plain, ordinary meaning, yet the exclusion of a definition for ’employee’ evidences the absence of such a need,” prosecutors wrote.

“In short, the legislature wanted to provide a definition for ‘public employee’  different than its plain, ordinary meaning,” they continued. “To judicially graft a version of this ‘public employee’ definition onto the common term ’employee’ is judicial legislation. Creating statutory definitions that differ from the plain and ordinary meaning of a word is a prerogative unique to the legislative branch.”

Hart and Houts’ defense of the ethics laws add to ongoing debates over how the state Legislature should move forward with a rewrite of the ethics laws. Since Hubbard was convicted of violating the ethics laws — the same laws he pushed through the House during his first special session as speaker in December 2010 — lawmakers have been calling for changes and clarifications.

The Legislature — the majority of which is occupied by many of Hubbard’s Republican contemporaries, colleagues whom he in many ways as ALGOP chair helped elected — is now considering a wide-ranging rewrite.

 

Chip Brownlee is a former political reporter, online content manager and webmaster at the Alabama Political Reporter. He is now a reporter at The Trace, a non-profit newsroom covering guns in America.

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Retired U.S. Marines general endorses Doug Jones

Krulak, a Republican, served as the 31st commandant of the U.S. Marine Corps and as a member of the Joint Chiefs of Staff.

Eddie Burkhalter

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Retired United States Marine Corps Gen. Charles Krulak has endorsed Sen. Doug Jones, D-Alabama.

Retired United States Marine Corps Gen. Charles Krulak has endorsed Sen. Doug Jones, D-Alabama, the incumbent senator’s campaign announced Tuesday. 

Krulak, a Republican, served as the 31st commandant of the U.S. Marine Corps and as a member of the Joint Chiefs of Staff. He’s also the former president of Birmingham-Southern College. 

“Although I am a life-long Republican, I’m urging you to vote for Doug Jones. His work on the Armed Services Committee supports our veterans and military families, and ensures that we have the best equipped military in the world,” Krulak said in a new ad from Jones’s campaign. “Senator Doug Jones’ strong record of getting things done for Alabama and our military has earned our vote.” 

Jones in 2018 filed an amendment to make U.S. Department of Veterans Affairs reports on VA-run nursing homes public, and in 2019, introduced legislation that eliminated the Military Widow’s Tax, which impacted an estimated 2,000 surviving military spouses in Alabama alone.

In September, Jones introduced a bipartisan bill to address veteran suicide.

Krulak commanded a platoon and two rifle companies during his two tours of duty in Vietnam, according to his U.S. Marine Corps University biography. He was assigned duty as the deputy director of the White House Military Office in September 1987.

Krulak was promoted to General on June 29, 1995, and became the 31st commandant of the Marine Corps on July 1, 1995. He retired from the Marine Corps in June 1999.

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Crime

Alabama inmate dies after inmate-on-inmate assault

Edwin Wells, 29, died on Oct. 10 from injuries during an apparent inmate-on-inmate assault at the Easterling Correctional Facility, the Alabama Department of Corrections confirmed on Tuesday. 

Eddie Burkhalter

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(STOCK PHOTO)

A Prattville man became at least the 19th Alabama inmate to have died this year in a state prison of circumstances that were avoidable. 

Edwin Wells, 29, died on Oct. 10 from injuries during an apparent inmate-on-inmate assault at the Easterling Correctional Facility, the Alabama Department of Corrections confirmed on Tuesday. 

Wells death makes at least the 19th inmate to have died from either suicide, drug overdoses or homicide, according to records kept by the ACLU of Alabama’s Campaign for Smart Justice. His death is at least the seventh suspected homicide in state prisons this year. 

ADOC doesn’t typically publish information on an inmate death unless a reporter discovers the death through other means and requests the information, with the expectation of deaths of inmates who tested positive for COVID-19, which the department does regularly release. 

“The ADOC condemns all violence in its facilities, and the fatal actions taken against Wells by another inmate are being thoroughly investigated,” said ADOC spokeswoman Samantha Rose in a message to APR. “Wells’s exact cause of death is pending a full autopsy, and more information will be available upon the conclusion of the investigation into his death.”

A U.S. Department of Justice report in April 2019 found that Alabama’s overcrowded, understaffed prisons for men were likely in violation of the Constitution’s Eighth Amendment and its prohibition on cruel and unusual punishment, and that ADOC regularly failed to protect inmates from sexual and physical violence perpetrated by other inmates.

An expected followup report by the Department of Justice in July detailed why the federal government believes systemic use of excessive force within Alabama’s prisons for men violates the Eighth Amendment. 

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As of Tuesday, at least 29 state inmates and two prison workers have died after testing positive for COVID-19. There have been 453 confirmed coronavirus cases among inmates and 429 among prison staff as of Oct. 14, according to ADOC.

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Infrastructure

Alabama’s Black Belt lacks quality internet access, report finds

Twenty-two of 24 Black Belt counties are below the statewide average of 86 percent of the population who have access to high-speed internet, and two Black Belt Counties — Perry and Chocktaw — have no access at all. 

Eddie Burkhalter

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During an online video briefing Monday on a report about a lack of internet access in Alabama’s Black Belt, University of Alabama student Brad Glover warned reporters that he could get kicked off the briefing at any moment. 

That’s because he was talking during the video briefing by way of audio only, using his cell phone, as he does not have access to high-speed internet access at his Linden, Alabama, home in the Black Belt’s Marengo County. 

The COVID-19 pandemic that sent students home to study online left many in the Black Belt and other rural parts of Alabama in the lurch, without access to the high-speed internet enjoyed by so many other Americans, according to the latest report in the University of Alabama’s Education Policy Center’s Black Belt 2020 series. 

The latest report, titled “Internet Access Disparities in Alabama & the Black Belt,” found that 22 of 24 Black Belt counties, as defined by the Education Policy Center, are below the statewide average of 86 percent of the population who have access to high-speed internet, and two Black Belt Counties — Perry and Chocktaw — have no access at all. 

“It is still a terrible struggle for me to connect to get the things done that are required,” said Glover, who interned with the Education Policy Center. 

Stephen Katsinas, director of the Education Policy Center, said that in the 1930s, nine of ten rural homes lacked the electric service that urban American homes, by that point, had for 40 years. 

“The Rural Electrification Act was passed to address this abject market failure,” Katsinas said. “Today, as the COVID pandemic has shown, access to high-speed internet is as essential to rural Alabama as the REA was in the 1930s. Alabama must directly address the market failures that exist today to bring high-speech internet to every rural Alabamian, so that our rural workforce can access the lifelong learning skills they need, and our rural businesses can compete globally.” 

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The COVID-19 pandemic has also spotlighted the need to expand the growing area of telemedicine. 

Dr. Eric Wallace, medical director of Telehealth at UAB, told reporters during the briefing Monday that patients are largely doing telehealth from their homes, and explained that disparities in access to high-speed internet present a problem for them. 

“Since the COVID-19 pandemic began, UAB has done approximately 230,000 telehealth visits, and 60 percent of those were done by video,” Wallace said. 

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“Forty percent are audio only, and why is audio only? It’s because we do not have broadband,” Wallace said. “So it’s not just broadband. It’s broadband. It’s tech literacy. Socioeconomics, to have a device in your home. It’s all of that.”

Wallace said that the coronavirus crisis has made clear that telemedicine is a “100 percent necessity” and that patient satisfaction studies make clear it’s not going anywhere. 

The reasons for disparities in access to high-speed internet are myriad, explained Noel Keeney, one of the authors of the report and a graduate research assistant at the Education Policy Center. 

Keeney noted a study by BroadbandNow that estimates there are 154 internet providers in Alabama, but there are 226,000 Alabamians living in counties without a single provider, and 632,000 in counties with just a single provider. 

Even for those with access to internet providers, Keeney said that just approximately 44.4 percent of Alabamians have internet access at a cost of $60 monthly or below. 

“If we really care about our rural areas, we need to make an investment, and it needs to cut off that cost at a very low rate,” Wallace said. 

Katsnias said there’s a growing consensus on the part of Alabama’s political leaders that access to high-speed internet is an important issue, noting that Gov. Kay Ivey in March 2018, signed into law the Alabama Broadband Accessibility Act, which has given internet access to nearly 100,000 Alabama students. 

“In March, Gov. Ivey awarded $9.5 million in broadband expansion grants, with a significant amount going to Black Belt communities,” the report reads. “This was followed by $5.1 million in additional grants in May.” 

“The State of Alabama also allocated $100 million in federal CARES Act-related dollars for “equipment and service for broadband, wireless hot spots, satellite, fixed wireless, DSL, and cellular-on-wheels to increase access for K-12 students undergoing distance learning,” the report continues. 

An additional $100 million in CARES Act funds were made available to facilitate virtual learning across Alabama’s K-12 schools, researchers wrote in the report, and another $72 million in federal aid went to the state’s colleges and universities. 

Katsinas said however those federal funds are spent, the state still needs a long term plan for how to address the disparities in access to high-speed internet. 

“We need a long term plan and we need to do what we can do immediately,” Katsinas said

Read more of the Education Policy Center’s reports in the “Black Belt 2020” series here.

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Economy

Governor announces auto supplier IAC plans Alabama expansion

IAC is committing $34.3 million in new capital investment to expand its new manufacturing facility located in Tuscaloosa County.

Brandon Moseley

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(STOCK PHOTO)

Gov. Kay Ivey announced Monday that International Automotive Components Group North America Inc. plans to invest over $55.9 million in expansion projects that will create 182 jobs at two Alabama facilities.

“International Automotive Components is a leading global auto supplier, and I am pleased that this world-class company is growing significantly in Alabama and creating good jobs in Cottondale and Anniston,” Ivey said. “IAC’s growth plans show that Alabama’s dynamic auto industry continues to expand despite today’s challenging environment.”

Nick Skwiat is the executive vice president and president of IAC North America.

“Alabama was the logical choice due to its skilled workforce and proximity to the customer,” Skwiat said. “We are excited to see the continued growth of the automotive industry in Alabama and we plan to grow right along with it. We thank the Governor and Secretary Canfield for their leadership in this sector.”

IAC is committing $34.3 million in new capital investment to expand its new manufacturing facility located in Tuscaloosa County. This facility will produce door panels and overhead systems for original equipment manufacturers. That project will create 119 jobs at the production site in Cottondale.

IAC also plans to invest $21.6 million at its manufacturing facility located in the former Fort McClellan in Anniston. That East Alabama project will create another 63 jobs.

This project builds on a milestone 2014 expansion that doubled the size of the Calhoun County facility. There IAC manufactures automotive interior components and systems. Key components produced at the Anniston plant include door panels, trim systems and instrument panels for original equipment manufacturers.

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IAC Group is a leading global supplier of innovative and sustainable instrument panels, consoles, door panels, overhead systems, bumper fascias and exterior ornamentation for original equipment manufacturers.

IAC is headquartered in Luxembourg and has more than 18,000 employees at 67 locations in 17 countries. The company operates manufacturing facilities in eight U.S. states.

“With operations around the globe, IAC is the kind of high-performance company that we want in Alabama’s auto supply chain to help fuel sustainable growth,” said Alabama Commerce Secretary Greg Canfield. “We look forward to working with IAC and facilitating its future growth in this strategic industrial sector.”

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Danielle Winningham is the executive director of the Tuscaloosa County Industrial Development Authority.

“International Automotive Components is a valued part of Tuscaloosa County’s automotive sector,” Winningham said. “We are grateful for IAC’s investment in our community and the career opportunities available to our area workforce as a result of their investment.”

“The City of Anniston is excited that IAC has made the decision to expand here. I have enjoyed working with the leadership at IAC, the Calhoun County EDC, and the state of Alabama to get this project finalized,” said Anniston Mayor Jack Draper. “This is even further evidence that Anniston is indeed open for business.”

Only Michigan has more automobile manufacturing jobs than the state of Alabama. Honda, Mercedes, Hyundai, Polaris, Toyota and soon Mazda all have major automobile assembly plants in the state of Alabama.

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