Legislation to change Alabama ethics law dies in committee

A push to change Alabama’s ethics laws for elected officials died in a Senate committee on Wednesday, with supporters saying they would try to bring legislation back next year.

Sen. Will Barfoot, R-Pike Road, the chair of the  Senate Judiciary Committee, said during the committee meeting Wednesday morning that HB 227, sponsored by Rep. Matt Simpson, R-Daphne, would be carried over. With just two days left in the 2024 regular session, there is not enough time to get the bill out for a vote.

“I have been a practicing attorney for almost 20 years, a prosecutor for almost 12,” Simpson told the committee after learning the bill had been carried over. “I still, to this day, have to keep the Ethics Commission on call, to call them to find out if I can do something or if I can’t do it. That is not right.”

The bill was the latest attempt to address a series of changes made to the state’s ethics laws in 2010. The changes, pushed through by what were then new Republican majorities in the House and Senate, were touted at the time as the strongest ethics laws in the nation.

But lawmakers and interested groups began to reassess the laws after former House Speaker Mike Hubbard, R-Auburn, was convicted of felony ethics violations under the law in 2016. A commission formed in 2018 to study the issue focused on the definition of “principal,” or a person who hires a lobbyist, which was a key point in the Hubbard trial. One charge the speaker faced involved a person who sat on the Business Council of Alabama’s board of directors but had no day-to-day interactions with the organization.

Increasing some penalties, reducing others

Simpson’s proposal went through multiple iterations, increasing penalties for some offenses while reducing them for others.

In a proposed substitute developed for the Senate committee Wednesday, the punishment for bribing a public official would rise from a Class C felony, punishable by up to 10 years in prison, to a Class B felony, punishable by up to 20 years in prison if the value of the bribe is at least than $10,000.

The bill was modified multiple times as it was making its way through the House, the chamber where it first began.

Public officials may also be punished for accepting benefits based on the value of what they receive. A violation of less than $1,500 could be referred to the Alabama Ethics Commission to determine if a violation of the state’s ethics rules took place.

For items worth up to $2,500, the violation would be a Class A misdemeanor, punishable by up to a year in jail and a $6,000 fine. For items worth between $2,500 and $5,000, the violation would be a Class D felony, punishable by up to five years in prison; for items worth between $5,000 and $10,000, a Class C felony and a Class B felony for items worth more than $10,000.

The bill also changes appointments to the Alabama Ethics Commission. Under current law, the governor, lieutenant governor and speaker of the Alabama House appoint members.

Simpson’s bill would have removed the lieutenant governor’s appointment and added the Senate president pro tem, the Alabama secretary of state and, on an alternating basis, the minority party leaders in the House or Senate.

The bill would have also required the commission to have at least one prosecutor, one judge, and one criminal defense attorney, all of whom have served in those roles at least 10 years.

Commissioners with the Ethics Commission would retain the authority to “impose civil penalties and restitution,” along with issuing private warnings, public admonishments as well as consent decrees, according to language in the bill. But the attorney general’s office would have to approve any penalties imposed by the commission.

The commission would have retain powers to train officials on ethics laws and issue opinions to clarify questions about the law. It would also conduct investigations and host hearings into alleged violations of the state’s ethics laws and the Fair Campaigns Practice Act.

The bill would also lower existing penalties for public officials voting on or sponsoring legislation on matters where they have a conflict of interest; for steering contracts or grants to organizations that may benefit them or their families, and for accepting gifts values at more than $100 for a single item or a total of $500 in 12 month. All three are currently Class B felonies.

Simpson’s bill would have changed the punishments for conflict of interest and contracts and grants to civil penalties up to three times the amount of the benefit received.

For accepting gifts, a first violation would be a civil penalty up to twice of the benefit received; a second would result in a penalty up to three times the value of what was received, and a third and subsequent one would be five times the value.

Lowering the penalties has led to criticism from Alabama Attorney General Steve Marshall. Marshall wrote in an editorial that the bill  increased the amount of money officials could receive without violating the ethics rules and that it turned many current criminal offenses into civil ones.

“Current law already provides for the non-criminal resolution of minor ethics violations,” Marshall wrote. “This bill assigns civil penalties (referred to by some as “speeding tickets”) to an array of serious and substantial violations of the public trust, regardless of the amount of money involved.”

Simpson, however, said that the bill expanded “the scope of what can be defined as criminal.”

Simpson said the bill increases the instances of what can be counted as bribery and pecuniary benefit and addresses intent. If there is intent involved when violating the ethics code, Simpson said, it would be a felony. If that intent is generally absent, it would be a misdemeanor, he said.

Session-long controversy

Simpson has argued that as constituted, the state’s ethics laws make it difficult for public officials to understand what comprises an ethics violation and what doesn’t.

“That it weakens the law in Alabama, that is the biggest misconception,” Simpson said in an interview after the committee meeting. “The laws are not being prosecuted as they are. They are not being prosecuted for a $35 lunch.”

He added that if that law is not going to be truly enforced, then it needs to be made a civil matter so that it can be handled within that area.

“Don’t have it to where you can have a threat of putting someone away for 20 years on a Class B felony if you felt like prosecuting it,” Simpson said. “I am a career prosecutor. The last thing I want is prosecutorial discretion because it becomes a situation if someone is mad at me, if the ethics commission is mad at me, they can come after me, find some gap, and come after me.”

But the proposed changes drew opposition from Marshall and Alabama Ethics Commission Director Tom Albritton, who said the proposal would weaken ethics laws.

“The independence of the Ethics Commission is a fundamental principle, it is a national principle, and it is to be guarded for the goodwill of public servants primarily,” Albritton said on Tuesday.

Sen. Arthur Orr, R-Decatur, told his colleagues Tuesday that he had “serious concerns” about the legislation, citing the work of the 2018 commission.

“This bill seems to go far beyond those recommendations,” he said.

The legislation died quickly on Wednesday.

“It should be clear, even if you have to repeat it in the legislation,” Sen. Vivian Davis Figures, D-Mobile told Simpson. “It should not be left open to various interpretations. I just wanted to let you know I appreciate your work in this, and that I agree with you, it needs to be worked out. And it needs to be restored clear.”

Simpson said he is currently deciding whether he will attempt to revamp the ethics bill next year.

“We will see,” he said. “I am not saying no. I am not saying I am running away from the fight. I am saying we have to figure out where we are, what is going to change between now and next year.”