Ignoring the objections of the Secretary of State’s Office on Oct. 3, the Alabama Ethics Commission issued Advisory Opinion No. 2018-11, which gives the Commission power to reduce violations of the State’s Fair Campaign Practices Act by a mere vote of the Commission.
According to Secretary of State John Merrill’s Office, “The issue involved in this opinion is whether or not the terms offense/violation and penalty are interchangeable terms and whether when the Commission ‘set(s) aside or reduce(s) a civil penalty’ it may also reduce the number of the offense/violation.”
In other words, the Commission can now reduce not only fines but also collapse many violations into one or a few. Under current law, a civil FCPA violation can become criminal after four offenses. With Advisory Opinion No. 2018-11, the Commission claims the authority to roll several offenses together which would allow the perpetrator to avoid criminal charges.
Secretary Merrill in an October 24 letter to the Commission argues, “It is our position that the Commission may only ‘set aside or reduce’ the civil penalty imposed but may not reduce the number of offenses/violations.”
During the Oct. 3 hearing, Ethics Chair Judge Jerry Fielding said that since no-one from the Attorney General’s Office or District Attorney’s Association were present, he took it as a sign that they weren’t concerned with the change to existing law.
However, Fielding’s assertion that no-one from the Attorney General’s Office was present is not correct. There were several representatives of the Attorney General’s Office in attendance; they just didn’t speak to the matter, which has raised a number of serious questions.
When Luther Strange served as the State’s Attorney General, members of the Special Prosecutions Division headed by Matt Hart were a constant presence at Ethics Commission meetings to ensure that the Commission did not dilute the Alabama Ethics Act. While SPD has continued to attend Ethics hearings, its mandate under appointed Attorney General Steve Marshall has been less rigorous.
Marshall, appointed by disgraced Gov. Robert Bentley, is facing charges before the Commission that he violated FPCA law when he accepted $735,000 in questionable contributions from the Republican Attorney’s General Association during his primary campaign.
Even though the complaint against Marshall was filed over three months ago, the Commission has failed to rule on the matter.
Marshall received five separate donations from RAGA plus a nearly $19,000 in-kind contribution, which he has yet to report on his FCPA reports as required by law.
After Advisory Opinion No. 2018-11 was approved, the Attorney General’s Office finally weighed in on the matter, asking the Commission to rehear the issue. In the Oct. 11 letter, Marshall asks that the Ethics Commission withdraw and reconsider Advisory Opinion.
He states, “I believe the opinion’s conclusion that it may ‘reduce the number of civil offenses attributed to a political action committee’ should be withdrawn or modified for two reasons: (1) it is legally erroneous and (2) likely to cause confusion about the possibility of criminal prosecution among the public and regulated community.”
Individuals outside of the Attorney General’s Office believe Marshall purposely held his team on a leash to keep them from objecting to the Commission’s opinion during the Oct. 3 hearing.
Why Marshall would choose to wait until after the Commission’s ruling to wade into the battle is a mystery, but two well-placed individuals speaking on background believe it has more to do with politics than policy.
Secretary Merrill has joined Marshall in his request for a rehearing on Advisory Opinion No. 2018-11. The Commission has not said if it would grant the request.