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Ethics Commission asked to rehear questionable opinion

Bill Britt

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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.

Ethics Commission gives itself more power to reduce penalties for campaign law violators

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.

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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.

Merrill and Marshall letters. 

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State files lawsuit against Birmingham for removing Confederate monument

Chip Brownlee

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Alabama Attorney General Steve Marshall filed a new lawsuit against the city of Birmingham Tuesday for removing a Confederate monument in Linn Park.

Local officials in Alabama’s largest city, which has a majority black population, removed a 115-year-old Confederate Soldiers and Sailors monument in the city’s Linn Park after protestors and demonstrators vandalized it Sunday.

Birmingham Mayor Randall Woodfin ordered the monument removed during the waning hours of Jefferson Davis day Monday, a state holiday honoring the Confederate leader.

“This action is a very, very powerful symbol of our city’s desire to move beyond the pain of the past and uniting into the future,” Woodfin said Tuesday, adding that the city would not disclose the monument’s new location due to security concerns and to protect it from further vandalism.

The city paid $1 to remove the monument, Woodfin said, adding that the city council would need to vote on whether to accept public donations to pay off any fines imposed by the state for removing the monument.

The monument has been at the center of a years-long legal battle between Alabama’s majority-white, GOP-led Legislature and predominately black local officials in Birmingham. Marshall filing the lawsuit seeking the $25,000 fine, if imposed, would be the end of the legal showdown over the monument.

Marshall filed the lawsuit against Birmingham for violating the state’s Memorial Preservation Act, which prohibits the removal of historic monuments including Confederate monuments.

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This is the second lawsuit filed by the Alabama attorney general against the city of Birmingham over the Linn Park monument.

The lawsuit seeks additional penalties after the city lost a similar lawsuit filed by the state in 2017.

The Memorial Preservation Act was passed in 2017 by the Alabama Legislature to protect architecturally significant buildings, memorial buildings, memorial streets and monuments located on public property for 40 or more years.

The law effectively prohibited municipalities from removing Confederate monuments.

“The State of Alabama first filed suit against the City of Birmingham in 2017 after the City erected barriers around the monument in Linn Park. In November 2019, the Alabama Supreme Court sided with the State and determined that the City of Birmingham had violated the law and was subject to the Act’s penalties. However, the Court held that any violation of the Act was punishable only by a one-time fine of $25,000 per violation,” Marshall said in a statement.

Woodfin, amid nationwide protests, demonstrations and unrest over the killing of George Floyd by a Minneapolis police officer, said he was willing to pay the fine to remove the monument, directing city workers to remove it Monday evening.

Legislation was filed in the 2020 session that would have amended the penalties provision of the act in response to the court’s ruling, but that legislation failed to become law.

“On Monday, I advised Mayor Woodfin that the removal of the 115-year-old Confederate Soldiers and Sailors monument in Birmingham’s Linn Park would violate the law and that I would fulfill my duty to enforce it,” Marshall said.

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Health

Third patient at state’s Mary Starke Harper Geriatric Psychiatric Center dies from COVID-19

Eddie Burkhalter

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A third patient at the state’s Mary Starke Harper Geriatric Psychiatric Center has died from COVID-19, the Alabama Department of Mental Health confirmed to APR on Tuesday. 

There remained 16 active coronavirus cases among patients at the state-run facility, said ADMH spokeswoman Malissa Valdes-Hubert in a message Tuesday.

Those patients are in various states of recovery, she said. 

Valdes-Hubert also confirmed that the members of the Alabama National Guard are to clean the facility on Thursday. 

Under the direction of Gov. Kay Ivey, the Alabama Department of Public Health and the Alabama Emergency Management Agency, members of the Alabama National Guard have since early April decontaminated and sanitized state nursing homes. Guard members also cleaned the Bill Nichols State Veterans Home, which had a serious outbreak of coronavirus, killing more than 20 residents and infecting more than 100. 

Valdes-Hubert said the department is in the process of planning for recovering patients and will release more information when available. 

There were no confirmed cases at ADMH’s two other facilities in Tuscaloosa, Bryce Hospital and the Taylor Hardin Secure Medical Facility as of Tuesday, Valdes-Hubert said.

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National

Sewell implores Alabamians “to speak out and demand change without violence”

Brandon Moseley

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Alabama U.S. Rep.Terri Sewell said that her heart aches for George Floyd and that anger should be directed not to violence but to action.

“The heroes of the Civil Rights Movement showed us it is possible to change history without damaging property and torching businesses that our community members depend on, so I implore all Alabamians to speak out and demand change without violence,” Sewell said. “We cannot let violence distract from the legitimate anger and frustration that we must channel toward action. I pray for both peace and justice.”

Sewell posted a video message Monday in response to protests across the country, which have at some points, turned violent and chaotic. On Sunday, several reporters were attacked in Birmingham, and some businesses were vandalized.

The representative’s video message comes after Birmingham Mayor Randall Woodfin and Montgomery Mayor Steven Reed also called peaceful demonstration. Birmingham implemented a curfew in response to the riotous demonstrations Sunday evening, but the city also removed a Confederate monument from Linn Park.

“To all those who feel marginalized because of the color of your skin: I see you and I hear you,” Sewell said. “Your pain and hopelessness is legitimate — since the founding of our nation, our criminal justice system has failed our black and brown communities. My heart aches for George Floyd, Ahmaud Arbery, Breonna Taylor and the countless others whose senseless deaths have not made the national news cycle.”

Sewell represents Alabama’s 7th Congressional District and is the only black member of Alabama’s congressional delegation.

“As a daughter of Selma, I myself have struggled to reconcile with the moment in which we continue to find ourselves, over and over,” Sewell said in the video statement. “The Foot Soldiers who came before us fought to create a better future, but every day we are reminded that that fight is far from over. They sacrificed their lives in pursuit of an America that lives up to its ideals – an America that we have not yet reached more than 55 years later.”

Sewell said the racism that causes pain can be seen plainly in police brutality and in the staggering health disparities black communities have endured before and during the COVID-19 pandemic.

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“It can be seen in thinly-veiled attempts to put African Americans in our place, holding on to and idolizing a time when our bodies were not our own,” she said. “And it can be seen in the state-sanctioned holidays and monuments that honor the leaders of the Confederacy, including today, ‘Jefferson Davis Day.’”

Sewell said she also knows that the vast majority of Americans across the country and in Birmingham are peacefully protesting for social justice.

“I wish I had all the answers and I could give us all the solutions we need,” Sewell concluded. “For now, I promise that I will work tirelessly to do absolutely everything within my power to bring peace and justice to our communities.”

“My Administration is fully committed that for George and his family, justice will be served,” President Donald Trump said on Monday. “He will not have died in vain. But we cannot allow the righteous cries of peaceful protesters to be drowned out by an angry mob.”

Floyd was killed while being arrested by the Minneapolis Police Department on suspicion of counterfeiting. The police officer who killed Floyd has been arrested and charged with third-degree murder and manslaughter. Activists say more widespread reform of policing and the criminal justice system needs to happen, and the other officers involved in Floyd’s homicide should also be charged.

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ACLU of Alabama backs right to protest

Eddie Burkhalter

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The ACLU of Alabama in a statement Tuesday expressed support for the Constitutionally protected right to protest and called for an end to racist policing. 

“We support protesters in Alabama and across the nation who are expressing their grief at the senseless deaths of George Floyd, Breonna Taylor, and all of the many Black men, women, and children who have been killed at the hands of police,” the statement reads. “We stand with those who are demanding justice from a system that has both historically abused and too often abuses Black communities to this day. Black people should not live in fear of being shot and killed by the police.

The ACLU said these times of unrest compel us to examine what will make our communities safer and more equitable.

“Police, sheriffs, and other government officials have discretion in how they use their time and resources,” the organization said in their statement. “Now is the time to question how they use that discretion around the role that law enforcement possesses in our communities, especially given the disproportionate harm inflicted upon communities of color, particularly Black communities, caused by enhanced militarization of law enforcement in this country. We cannot effectively address police violence without completely reimagining the role of police.  We must significantly reduce the responsibilities and presence of police in the everyday lives of people in heavily policed communities. We will not rest until there is an end to racist policing.”

“The ACLU’s commitment to ending racist and violent policing goes back decades, from confronting the police violence that fueled protests in Los Angeles, Detroit, and Newark in the 1960s, through Ferguson. Sadly, those efforts  have not worked. We must do more.

“Rather than spend taxpayer dollars on enforcing restrictions on the constitutionally protected right to protests, police and government officials should focus on seeking justice and holding themselves accountable to the people they are supposed to protect and serve.”

Birmingham Mayor Randall Woodfin on Monday declared a state of emergency and enacted a city-wide curfew after a peaceful protest Sunday turned violent early Monday morning. 

Protests across Alabama on Monday were peaceful, with few arrests reported, according to news accounts.

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