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Alabama AG vs. Alabama Ethics Commission

Alabama AG Steve Marshall filed a lawsuit Monday against the Alabama Ethics Commission, seeking to have an opinion invalidated.

Alabama Attorney General Steve Marshall speaks during a press conference on COVID-19 with Gov. Kay Ivey in April 2020. GOVERNOR's OFFICE/HAL YEAGER
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Alabama Attorney General Steve Marshall, escalating a long-running feud, took the extraordinary step on Monday of filing a lawsuit against the Alabama Ethics Commission, seeking to have a court force the Commission to revoke a recent advisory opinion. 

The rare lawsuit in which one state agency sues another was filed Monday in Montgomery County Circuit Court and names Commissioners John Plunk, Stan McDonald, Lynn Stuart and Ed Crowell and executive director Tom Albritton as defendants, all in their official capacity. 

In the lawsuit, Marshall’s office contends that the Ethics Commission is in violation of the Alabama Administrative Procedures Act because it adopted an advisory opinion earlier this year stating that it had no responsibility to disclose to individuals under investigation any exculpatory information it might uncover during the course of the investigation. Essentially, the Ethics Commission is saying that if during the course of an investigation it finds evidence that would aid the person under investigation, or possibly end the investigation and clear that person’s name, the Commission has no responsibility to disclose that information. 

Marshall contends that failing to disclose it is a violation of the Brady rule, which requires such disclosures, and that it serves to undermine any cases the Commission might refer to the AG’s office. In fact, he states in the lawsuit, failing to make such disclosures undermines the entire purpose of the Ethics Commission, which is to refer potential criminal cases to district attorneys or the AG’s office, because those offices can no longer be sure that the referred cases have been properly handled. 

“(The advisory opinion) renders any future referrals and proposed administrative resolutions from the Ethics Commission useless to the (AG), as they would be tainted with due process concerns,” the lawsuit reads. 

Marshall also contends that the advisory opinion, which was self-generated by the Ethics Commission, that determined that the Commission had no duty to disclose exculpatory information, was generated improperly and isn’t legal. 

“(The AG’s Office) … reiterat[ed] previously-raised concerns about the Ethics Commission’s understanding of Brady and the Ethics Act and urg[ed] the Ethics Commission to simply return to its longstanding practice of providing respondents with exculpatory evidence,” the lawsuit states. 

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The lawsuit also claims that the Ethics Commission, in response to the AG’s office publicly questioning its policy, has started withholding cases that would normally be referred to the AG and has instead been imposing its own administrative fines. 

The lawsuit also notes that the issue over the Brady rule began more than a year ago, when Marshall rejected administrative fines recommended by the Ethics Commission in two cases due to concerns that exculpatory evidence wasn’t presented during the course of the investigation. According to sources familiar with the lawsuit, one of those cases involved former Montgomery Police Chief Earnest Finley, who had ethics charges dismissed. 

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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