On Wednesday, members of the Alabama Legislature attended orientation training at the Alabama Statehouse. Among the many topics covered in the two-day seminar was ethics training. The presentation was led by Legislative Services Agency (LSA) General Counsel Jimmy Entrekin. The presenters were Greg Butrus, a Partner at Balch & Bingham, and Raymond Bell, a shareholder at Maynard, Cooper & Gale.
“This presentation does not replace the official training on January 11 from Alabama Ethics Commission Director Tom Albritton,” Entrekin told the legislators – most of them new legislators. “Tom Albritton has a great session that he provides. We will have mandatory ethics training during the organizational session.”
“We give advice on this (ethics and campaign finance) all the time,” Bell said. “We want you all to be able to come down here and serve your constituents and not have any problems with any legal issues.”
“FCPA applies to your campaign political and electioneering activities,” Entrekin cautioned. “You are now more regulated than a coal mine in California.”
“Ethics applies to all areas of your life that connect to your public service,” Bell said. “Be aware of lobbyist/principal restrictions. Know the rules or employ someone who does. Check first act later.”
“Keep good records,” Bell advised. “A lot of what we come across is people forgetting to file something.”
Bell explained that one major topic they address frequently is that campaign account funds can be used for expenses in furtherance of official duties. Still, campaign accounts cannot be used for personal expenses. The second major topic is conflicts of interest in the dual role of citizen legislators.
Greg Butrus explained that campaign funds can be used to purchase things like office furniture/equipment used in constituent services. It can also be used for travel activities/mileage and meal reimbursements, inaugural expenses, computers, cell phones, vehicle-related purchases, and legal expenses. Prohibited uses include personal living expenses.
“You want to be very careful,” Butrus said. “Common scenarios that bump into that gray area include cable tv. Is that for personal enjoyment or for news gathering? Cable TV in the office or on a device is an approved use of campaign dollars if used for information gathering, but what about sports channels?”
“Purchasing a coffee maker for your office while the legislature is in session is an appropriate use, but can you take that coffee maker home with you at the end of the session? That is where you get into trouble,” Butrus warned.
“With a coffee machine, you are not going to get into scrutiny, but if you are buying a $1000 cappuccino machine, that is another story,” Butrus said.
One legislator asked if their personal phone records could be requested under the Freedom of Information Act.
“I hate this answer, but it depends on a case-by-case basis,” Entrekin said. “We are trying to protect you.”
Entrekin said that phone and email records of legislators are more protected than would be the records of someone in an executive branch position. “There is a good bit of stuff that is protected.”
“In our world, we think of open records as separate from ethics,” Butrus said. “Legislative privilege is found to be pretty robust.”
“My advice to folks is to be very conservative on the legislative side,” Bell said. “You have got to be very careful with something you bought with campaign money.”
“If the campaign fund is paying for travel, make sure that it is connected with the campaign,” Butrus said. “Make sure you don’t double reimburse. Many organizations will reimburse you for your travel expenses.”
Butrus explained that if a legislator travels to an event for campaign or office-related reasons, those travel expenses are a legitimate use of campaign dollars. However, if the group that you are speaking with reimburses the legislator for travel and that is not properly accounted for in the financial records, then that is illegally converting campaign funds for personal use.
“It can be tricky, but the key to that is to keep good records and include why you spent that money,” Bell said.
While staying in Montgomery for the session, Entrekin explained, “Campaign funds can be used for miles, lodging, or meals. Make sure you don’t double reimburse.”
Legislators get a $100 per diem from the state for travel to Montgomery during official business. The campaign can cover any costs above that, but using campaign fund dollars for the full costs and then cashing the per diem check would be a double reimbursement and, thus, an illegal transfer of campaign funds for personal use.
Butrus said legislators can use their campaign funds for legal expenses but warned, “That is very broad, but it is not unlimited. You can’t use it for your divorce or for child support, in criminal matters or something like that.”
Butrus said candidates can make political party contributions with their campaign funds but explained, “There is a statutorial limit to how much money you can spend. You are limited to $5000 in a two-year period.”
Butrus also warned about contributions that might be a felony violation of Alabama’s Pac to Pac law. He also cautioned about communications with a political action committee that might also be working on their behalf.
“Make sure you don’t coordinate with them,” Butrus said.
“Under the ethics law, if you have to stop and think about it, it is probably wrong,” Bell said, explaining the conflict of interest. “Remember with conflicts of interest. It is bigger than money.”
“You have to be very careful when you come here and advocate for something that benefits you or your employer,” Bell said. “You should not get a benefit for passing a bill.”
“This also applies to a family member,” Bell said. “You have to be careful that you are not passing a bill that benefits a family member.”
“Tom Albritton does a great job in explaining that you are not expected not to have a conflict of interest,” Entrekin said. “Avoid acting in furtherance of an impermissible conflict of interest. The main thing that you deal with ethics law is how you deal with them.”
One legislator asked about his daughter, who is a school teacher.
“If you voted to cut taxes, you yourself would get the tax cut, but since it helped all taxpayers as a group, it would not be a conflict of interest,” Bell explained.
“If it helped all Alabama teachers, you would not have a problem, but if it helps her or a small segment of people, you are going into conflict,” Bell said.
Butrus suggested that legislators consult with an ethics attorney before acting. “Make sure that you give your lawyer all of the information, or you might get a very different answer.”
“The only thing that gives you absolute protection is a formal ethics opinion, where they considered it in a formal hearing and voted on it,” said LSA Director Othni Lathram. “Anything you have short of that, including letters from the Director of the Ethics Commission, informal opinions of an (Ethics) commissioner, a commissioner giving a presentation somewhere is what I call jury protection, and if you are in front of a jury, you have already lost.”
“You, as a legislator, have to be very careful,” Bell said. “Don’t ask anyone for money other than your campaign. Do not let you or your office be used for a charitable board.”
“You don’t want to be in a position where you are calling people asking for money for a group during a period where you are not supposed to be,” Bell said, referring to the periods where legislators and other office holders and candidates are forbidden from raising money – the legislative session. “Or calling someone who has an interest before the legislature.”
Following the orientation, the legislators were guests of Alabama Governor Kay Ivey at the Governor’s Mansion.
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