Attorneys brief legislators on ethics laws
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
Voters can erase racist wording in Alabama Constitution
The Alabama Constitution, approved in 1901 to entrench white supremacy, still has language regarding segregated schools, poll taxes, and bans on interracial marriage. But a seismic change could be in store. Alabama voters on November 8 will decide whether to ratify a new constitution that strips out the Jim Crow-era language. It would also reorganize the unwieldy governing document, which has been amended 978 times and tops over 400,000 words. The Public Affairs Research Council of Alabama says the size makes it the longest such document in the world. Voters in 2020 authorized state officials and lawmakers to cut the racist language that lingers from the era of racial segregation. That work, finally completed, now goes back before voters to ratify the Alabama Constitution of 2022. Proponents say the changes that will demonstrate Alabama is a different place today — and streamline the sprawling constitution to be more user-friendly. “This is an effort to show, not only the rest of the country but the world who we are today,” said state Rep. Merika Coleman, one of the lawmakers who led the bipartisan effort. However, it does not make the policy changes that some reformers have sought — such as giving counties more home rule and removing tax earmarks, which dedicate taxes to a specific program or purpose. To approve the measure, voters must vote ‘Yes’ on the question asking whether to ratify the “Constitution of Alabama of 2022. ” The ratification question will appear on the ballot after the list of candidates for office. There is also a separate amendment, Amendment 10, to authorize the code commissioner to renumber and nest the newest amendments within the Constitution. The framers of the 1901 constitution were direct about their goal to maintain a government controlled by whites. “The new constitution eliminates the ignorant negro vote and places the control of our government where God Almighty intended it should be -– with the Anglo-Saxon race,” John Knox, president of the constitutional convention, said in a speech urging voters to ratify the document. The Alabama Constitution has language allowing parents to opt for students to “attend schools provided for their own race” and sections about poll taxes, bans on interracial marriage, and a convict labor system in which Black Alabamians, often arbitrarily arrested, were forced to work in mines and labor camps. The provisions were long ago invalidated by court rulings or later amendments, but the language remains in the state’s government document. Alabama has seen efforts previously to invalidate racist language, but this goes further, said Othni Lathram, the director of the Legislative Services Agency. For example, voters in 2000 approved an amendment repealing an unenforceable interracial marriage ban — although 40% of voters voted against the repeal — but the language about the ban remains in the Constitution, and “you have to make it to the Amendment 667 to know that it’s been repealed,” he said. “With the recompilation, it completely goes away,” he said. The reorganization effort is designed to make the document more user-friendly, Lathram said. Repealed provisions will be removed and the nearly 1,000 amendments will be incorporated into the document. Amendments related to local areas will be organized by county so they can be more easily found. Tom Spencer, a senior research associate at the Public Affairs Research Council of Alabama, said the proposal will strip remaining racist language. However, it will continue the current structure that centralizes power in the Legislature, and will not change the state’s tax structure. The Alabama Constitution of 1901 is currently 420,000 words. The new Constitution would shrink slightly to 373,274 words, but that is three times more words than the next-longest state constitution – Texas, according to an analysis from the PARCA. “Power will still be concentrated in the Legislature, and local matters, like whether counties can regulate golf carts on public roads, will continue to clutter the state constitution … And it will still be the world’s longest constitution. Even with the organizational fixes, the document is a confusing mess,” Spencer wrote. The state committee that worked on the recompilation and the lawmakers who approved it only had a narrow charge to delete racist or repeated language and to reorganize, according to Coleman. However, she is hopeful the ratification will be approved. Republished with the permission of The Associated Press.
Jim Zeigler ready to champion updates to public record laws after continued ALDOT inaction
It’s a very familiar story on Alabama Today — another week has passed and still, the Alabama State Auditor has yet to receive a response from the Alabama Department of Transportation (ALDOT) Transportation Director John Cooper and ALDOT Chief Counsel William Patty regarding further information about an $87 million state-funded bridge project in Baldwin County. Now, State Auditor Jim Zeigler has grown impatient with the lack of answers and tells Alabama Today he is ready to champion updating the state’s public record laws, which have left him at a loss for how to proceed. ALDOT’s history of inaction It all began in April, when Zeigler made a request for public documents. At the time, he requested the following documents from the ALDOT: Copies of any and all studies that demonstrated a need for a bridge over the Intercoastal waterway Any and all documents that show a change in the need for the Intercoastal bridge since the determination in 2016 that the bridge was unnecessary Any and all analyses to support spending $30-$87 million in state funds in light of the pressing infrastructure needs throughout the state Any and all documents that resulted in the range of costs projected ($30 to $87 million) Documents that show cost overruns on current and recent ALDOT projects According to the court filing from the bridge company, they agreed to widen their bridge at no additional cost to Please provide any and all documents that address why the option of widening the original bridge is not being utilized. But after three months, the State Auditor, who filed the request as an everyday Alabama citizen, had not received any update from the ALDOT, so he filed a second follow-up request July 12, 2018 giving ALDOT’s Cooper and Patty a deadline to respond: August 17. Now, nearly a full month past the deadline, Zeigler facing a dilemma many Alabamians truth-seekers face: what’s he supposed to do next? With no clear answers written in law, Zeigler’s taken the next logical step on his fact-finding mission: write a letter to the Legislative Services Agency at the Alabama State House in hopes that they will provide him with the necessary information of what the legal next step he can take is. “In looking over the applicable law, I could not find any legal deadline for compliance by an agency of official. Also, I am uncertain about the remedy a citizen would have for non-compliance,” Zeigler wrote in his letter addressed specifically to Othni Lathram, the director of the Legislative Services Agency. An unworkable law Frustrated by the entire situation, Zeigler is ready to champion updating the state’s public record laws, which he calls “unworkable”. “This has been frustrating. To have a public records law that lacks any deadline is unworkable and unacceptable,” Zeigler told Alabama Today. “I am considering taking the lead for a bill in the March 2019 regular legislative session that would add a deadline for providing public records and specific remedies when agencies do not comply.” “If I as an elected state official cannot obtain public records, imagine the normal citizen,” Zeigler added. Zeigler asked Lathram two questions: What is the legal deadline for compliance with a proper request for public documents? What are the remedies available to the requester in the event of failure to provide? Zeigler’s not alone Zeigler’s not alone in running into issues trying to get public information from state officials. In May, AL.com‘s Kyle Whitmire ran into problems when requesting information from Attorney General Steve Marshall‘s office. He was told his request was not public information. Alabama Today has repeatedly faced similar issues when reaching out to ALDOT ourselves. We first reached out to Tony Harris, spokesman for ALDOT, on May 18 with our own questions about the bridge project. He called back that afternoon and promised a response the following week. Flash-forward to May 25 then again June 12, more empty promises of information that never came. Finally on Aug. 24, after previously asking Alabama Today to avoid submitting an official public records request, he tells us that is what we have to do if we want the information. That there are issues being held up in the courts (by the way, they’ve all been resolved) and he’s unable to answer otherwise. Read Zeigler’s full letter to Lathram below:
