But How Does It Work on the Street?

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This morning former Speaker of the Alabama House of Representatives, Mike Hubbard, was sentenced to serve four (4) years in prison and 16 years supervised probation as well as fines of $210,000. The restitution sought be the State was not imposed by Judge Walker after his conviction last month on 12 of 23 Counts of an ethics law indictment returned by a Lee County Grand Jury. Judge Jacob Walker pronounced the sentence in his Courtroom and Hubbard was released immediately following his sentence on an appeal bond. Hubbard’s attorneys have indicated that they will be filing an appeal of the convictions.

Hubbard’s convictions were based, in large part, on revisions to the Alabama Ethics laws passed by the newly elected, Republican controlled, Legislature in a very unusual Special Session of the Alabama Legislature in December 2010. Outgoing Governor Bob Riley called the Legislature into Special Session specifically to deal with tougher ethics laws before the newly elected Legislature had even had its constitutionally mandated Organizational Session. With great fanfare, and speed, the Republican super-majority controlled Legislature pushed through a package of legislation designed to make the legislative process more transparent and, at least theoretically, “ethical”. With this Special Session in mind we are reminded of three idioms we have heard for years:

  1. The Road to Hell is paved with good intentions;
  2. If you do not have time to do it right the first time will you have time to do it over; and
  3. It may look good on paper but how does it work on the street?

There is likely no one who would doubt that the original stated intent of the newly elected Legislature and Governor Riley was that they, collectively, wanted to “clean” things up in Montgomery. There has been a perception (and in the political world perception becomes reality) that there was widespread corruption in Montgomery. As former Speaker Hubbard has been quoted as saying when referring to the reassignment of some Legislative staff “There is a new Sheriff in town and we are going to make some changes”. My how things can turn on a dime when a process is hurried and not well vetted. In one of the emails used as an exhibit in the Hubbard trial Hubbard was quoted as writing to then former Governor Riley when referring to the ethics laws they passed “What were we thinking”? The intent was to improve the situation but what has happed? One Representative was indicted, pled guilty, resigned from office and has rarely been heard from since. Another Representative was indicted, tried and ultimately acquitted. Former Speaker Hubbard has been indicted, tried, convicted and now sentenced to four (4) years in prison and 16 years of supervised probation. In addition Hubbard will have to pay fines of $210,000. We suspect that all three of these men would agree, as will others that are rumored to be the target of the Lee County Grand Jury, that though in 2010 they may have had good intentions, the proverbial Road to Hell is definitely paved with those Good Intentions.

In the haste of that 2010 Special Session a number of Bills were passed dealing with what lobbyists and Principals may do when interacting with Public Officials or Public Employees. Tougher restrictions on campaign finance were enacted. There was one Bill that sought to prohibit transfers from PAC to PAC, a common practice prior to the enactment of the 2010 reforms. In a last minute amendment on the Floor of the Senate the last night of that Special Session Senator Hank Sanders (D-Selma) offered an amendment to the PAC to PAC transfer legislation. In the years preceding the 2010 election the caucuses of both the Republican and Democrat House and Senate Members had created “Caucus Foundations” that could receive contributions that would not have to be disclosed in campaign finance reports. Sanders amendment was intended to prohibit these Foundations from making the same type of transfer. A good intention. In reality, based on the language that was adopted, this legislation prohibited ANY foundation from contributing to another foundation. As adopted, in theory the Alabama Power Foundation would not be permitted to make a contribution to the Alabama Children First Foundation. The Blount Foundation could not make a contribution to the Central Alabama Community Foundation. The unintended consequences of legislation that was the result of a good intention but hurried through because they did not have time to fully vet the language limited for a while the good works of these charitable Foundations. In the 2012 Regular Session the Legislature had to come back and amend the 2010 legislation to make it clear that what was originally intended was “Political Foundations”.

As to the third point above my wife regularly quotes a former colleague as having asked the question “but how is it going to work on the street”. On the face of things many times a solution looks good on paper but when it comes time to put what is on paper into action on the street it is very difficult, if not impossible, to implement the proposal as originally envisioned. Such is the case with the ethics law revisions passed in that fateful 2010 Special Session. Consider for a moment:

  1. Stricter limits were put on entertainment of Legislators and Public Officials/Employees. Preclearance by the Ethics Commission of events became mandatory. The Ethics Commission now requires an “educational component” be a part of any social event held by a Principal that includes a Public Official. One such event in the recent past involved a longtime Agency Head who was retiring after more than 25 years leading his Agency. A professional organization wanted to honor this leader for his years of service. There have been reports that the organization had to revise its plans for the event several times before they were allowed to honor this individual.
  2. Longstanding entertainment/meals provided to Members of the Legislature became “banned” activities. It was no longer permissible for lobbyists to sign up and provide lunch during the Session for Legislators, staff and other lobbyists even though the cost per person was far less than the $25.00 per person limit imposed by the ethics law. In order to have a chance at being an approved event preclearance would have had to have been granted for each meal and there would have had to have been an educational component each and every day. What had been a tradition for years suddenly became prohibited. The fellowship of these lunches had long benefitted the relationships between Legislators, staff and lobbyists with no one being coopted as a result.
  3. As a result of the guilty verdict on one of the counts in Hubbard’s trial the Birmingham Law Firm, Maynard Cooper, in a bulletin shortly after the verdict was announced, pointed out that the definition of “Principal” was now subject to a much wider interpretation than originally thought. Based on the guilty verdict on the Count involving Will Brooke, providing a “thing of value” it is now conceivable that the Board Member of any organization that employs a lobbyist, even if that Board Member is a volunteer receiving absolutely no compensation or reimbursement from the organization, could be considered a Principal and subject to all of the restrictions that the organization itself is restricted to. It is hard to believe that this was the intention of the Members of the Legislature when they tightened the ethics laws. Imagine for a moment a banker, or realtor, or auto dealer or physician who serves on the Board of one of their respective professional organizations. All of the aforementioned groups hire lobbyists. To its fullest application it is not inconceivable that any of these folks serving on one of these Boards could be considered a Principal. Consider the banker, who serves on his organization’s Board, wants to take a local Legislator out for a round of golf. If he does, even in the regular course of business, he could conceivably be violating the strengthened ethics law and may have no idea that he is in violation.

All of this is to point out the three principles listed early in this Report:

  1. The Road to Hell is paved with good intentions;
  2. If you do not have time to do it right the first time will you have time to do it over; and
  3. It may look good on paper but how does it work on the street?

When the Legislature reconvenes in Regular Session in February 2017 there needs to be a thoughtful and deliberate effort to clarify the original intent of the reforms passed in 2010. Definitions need to be readdressed, limitations need to be reevaluated and clarity needs to be divined in an effort to eliminate any confusion or uncertainty as to what is meant and required. Without clarification of intent, without clarity of application and certainty about process all Alabamians are operating in limbo and that is not good for anyone.

These issues need to be addressed in the upcoming Regular Session after a thoughtful process of investigation and deliberation by a bi-partisan group of Legislators. Some may cry for these changes to be made in the expected, eminent Special Session. Talk in Montgomery is that the Special Session will start sometime around Monday, July 25, 2016. Talk about the rumored Special Session is that it will focus on Medicaid funding, and possibly on a lottery, distribution of the BP settlement funds and possibly a prison bond issue. If all of those are included in the Call it would be a very ambitious Call considering the first order of business in the House of Representatives will be the election of a new Speaker. A Special Session would not be the time or place to make hasty changes. The hasty changes made in that 2010 Special Session are part and parcel to many of the issues facing state government in Alabama today. It will not be an easy process but if it were easy anyone could do it. The people of Alabama have placed their trust and confidence in those we have elected to serve in the Alabama Legislature. These Legislators are fully capable of making the informed, wise, decisions as to how to improve the process but they need to do it in a well-considered manner – not immediately to “solve a problem”.

The Alabama House will reconvene in Regular Session at Noon on Tuesday, February 7, 2017
The Alabama Senate will reconvene in Regular Session at Noon on Tuesday, February 7, 2017

The views and opinions contained in this report do not necessarily reflect the views or opinions of the clients of Public Strategies, LLC.