2010 Special Session Update -- Final Report 12/27/10
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The special legislative session called to address “ethics reform” in Alabama concluded in the wee hours of the morning of Dec. 16, 2010. Since the close of the session, Gov. Bob Riley has signed seven bills into law.
The rare “post-election session” required the newly-elected House and Senate members to come straight to Montgomery from their legislative orientation session at the University of Alabama. The House and Senate began the session by electing new leaders and adopting a set of ad-hoc rules that governed the activities during the seven meeting days of the session.
Before concluding the session, the new Legislature passed – in one form or another – all seven of the bills included in the “call” for the special session. A number of the laws will require interpretation from the Alabama Ethics Commission in the coming weeks. In addition, the staff of the Ethics Commission has a major challenge to meet a number of deadlines established in the new laws.
The Association was successful in ensuring that the five points of the newly-adopted ACCA policy statement regarding Ethics Reform were included in the final version of the bills. In addition, amendments were added to ensure that Association staff can continue its current relationship with participating county members (who are, of course, public officials and employees).
Appreciation is expressed to the new leadership in the House and Senate for its consideration of the Association’s unique relationship with its members. Special appreciation is expressed to Senate President Pro Tem Del Marsh, Sens. Bryan Taylor and Scott Beason; as well as House Speaker Mike Hubbard and Reps. Paul DeMarco, Jim McClendon, Mac McCutcheon and Steve Clouse for their specific assistance on ACCA amendments.
Below is an overview of each of the new laws and their impact on county governments. County officials are encouraged to read the new laws carefully and to consult with the Association or their county attorney before embarking on activities which may be covered by the new laws.
HB 11 Rep. DeMarco
Act No. 2010-762
Aimed at ensuring that all public officials are exposed to ethics training, this new law requires the participation in training by those public officials in office today as well as those that take office in the future. The law also requires online training for those public employees who yearly complete the Statement of Economic Interests required by the Alabama Ethics Law.
The Association was successful in securing an amendment allowing the ethics training provided by the Alabama Local Government Training Institute to be substituted for the training provided by the Alabama Ethics Commission. A majority of those county commissioners who were in office prior to the 2010 general election have completed the ethics training provided by the ALGTI. The Association will contact county commissioners in the coming weeks to provide a listing of those who have completed the ALGTI training and, therefore, are not required to participate in the new training provided by the Alabama Ethics Commission.
Those newly-elected commissioners who complete the ethics program through ALGTI are also exempted. Auburn University, which administers the training program, is responsible for providing the Alabama Ethics Commission with a listing of those who have completed the training.
The online training required for employees must be completed within 120 days for those employed on or before Dec. 31, 2010. Employees hired on or after Jan. 1, 2011 will have 90 days to complete the training, which will be established by the Alabama Ethics Commission in the coming weeks.
This new law is effective Jan. 1, 2011.
Revisions to the Operation of the Alabama Ethics Commission
SB 1 Sen. Ward
Act No. 2010-763
This new law makes massive changes in the organization and operation of the Alabama Ethics Commission including granting the commission subpoena power under certain circumstances and establishing a timetable for completing investigations.
The new law contains language intended to keep portions of the investigation sealed until considered by the Ethics Commission and prescribes penalties for the release of information. Language was also retained from the current law that prohibits the investigation of an “anonymous” complaint and allows for the Ethics Commission to initiate its own complaint only upon the approval of four of the five commission members.
Subpoena power is granted to the commission, but only after the subpoena has been requested by the director of the Ethics Commission and approved by four of the five commission members. Those under subpoena have 10 days to file objections with the court.
New language establishes a timeline for the completion of investigations by the Ethics Commission. Any complaint “shall be deemed dismissed and cannot be reinstated based on the same facts” if the Commission has not disposed of it within 180 days. There is a provision for a one-time extension of 180 days “upon majority vote of the commission.” Once the Ethics Commission forwards a complaint to the Attorney General or local district attorney, the new investigation has another 180 days to be completed.
This new law is effective Jan. 1, 2011.
Expenditures to Influence Public Officials
SB 14 Sen. Taylor
Act No. 2010-764
Approved shortly before 3 a.m. on the last night of the session, this new law includes a confusing set of definitions and new prohibitions that will require substantial explanation and interpretation from the Alabama Ethics Commission. The ACCA staff will be in contact with the executive director of the Commission to discuss some of the issues highlighted below.
The new law includes massive changes to the definitions used in the Alabama Ethics Law. Most of the media coverage has focused on the definition of “thing of value” and a long list of items exempted from that definition. This term, “thing of value,” was utilized extensively in the old law, but is not as prevalent in the new statute passed in this special session.
The term “thing of value” does not include any of the following items specifically set out in the new law:
- Contributions to an inaugural or transition committee;
- Gifts given by family members or by friends who have relationships existing outside the public officials’ position;
- Greeting cards or other similar items;
- Loans from banks or other financial institutions on “terms generally available to the public;”
- Other discounts on purchases or lodging available to the general public or public employees;
- Prizes won by competitors in contests or events open to the general public;
- Items paid for by the governmental entity the official serves;
- Compensation earned from a non-governmental employer;
- Assistance provided during safety or health emergencies;
- Expenses when the official speaks or participates on a panel for conference or educational event, economic development function or civic clubs, charitable organizations or professional associations;
- Meals and beverages not to exceed $25 per meal and $150 per year from a particular lobbyist or not to exceed $50 per meal or $250 from a “principal” (i.e. a lobbyist’s employer);
- Expenses, meals and similar items provided by the ACCA and other similar organizations to public officials and employees who are participating in the Association because the governmental entity is a member.
A new code section provided in the statute prohibits “lobbyists” and those persons or companies employing lobbyists (defined as “principals”) from offering or providing a “thing of value” to a public official or the official’s family members. The list of exemptions above represents those items which are NOT considered a “thing of value” and, therefore, can be accepted by public officials or employees from a lobbyist or a principal, according to this new section.
However, amendments to section 36-25-7 do not utilize the term “thing of value” when outlining what can be accepted by a public official or employee and his or her family. The amendments to this section prohibit any person from offering and also prohibit any public official or employee (or his or her family member) from accepting “ anything” which is given “for the purpose of influencing official action”.
The Ethics Commission will almost certainly be asked to offer an official opinion on the implementation of this prohibition, especially in light of the confusing definitions and apparent conflict between the new code section addressing the acceptance of a “thing of value” and the amendments to 36-25-7 that prohibit the acceptance of “anything.”
To further complicate the issue for county officials and employees, the definition of “lobbyist” includes an exemption for “a person who appears before a legislative body, a regulatory board, or an executive agency to either sell or purchase goods or services.” Again, it will be important for county officials and employees to know whether those who are marketing (or selling) products and services are considered “lobbyists” in the eyes of the new law.
The Association will communicate with county officials and employees regarding the interpretations given by the Ethics Commission as soon as the information is available.
This new act is effective March 16, 2011.
Contributions by Political Action Committees
HB 9 Rep. McCutcheon
Act No. 2010-765
This new law is aimed at eliminating the transfer of money between political action committees, a practice that has become commonplace in Alabama elections. This practice has been utilized not only by lobbyists or others wishing to influence action of elected officials, but also by candidates who were proficient at raising campaign funds and often made contributions to other candidates.
Provisions of the law prohibit the transfer of money from one political action committee to another, except under specific circumstances. Once money is deposited into a political action committee, contributions can only be made to candidates. Candidates who received contributions can only expend that money on election expenses and the following enumerated activities:
- Qualifying fees for seeking political office;
- Tickets to political party dinners or functions
- State or local political party dues.
Prior to receiving political contributions, county officials are encouraged to review this new law very closely. The law became effective on Dec. 20, 2010.
Legislative Double Dipping
SB 3 Sen. Waggoner
Act No. 2010-760
Although this new law applies only to members of the Alabama Legislature, it is important that counties be aware of the prohibitions that now exist for legislators. The new law prohibits a member of the House or Senate from being employed by “any other branch of state government, any department, agency, board, or commission of the state, or any public educational institution.”
The new law provides for exceptions that will allow current teachers and education employees to complete this legislative term and also allows for some part-time and military employment. Legislators who violate this new law are required to repay the state any employment compensation received in violation of this new law.
This new law is effective Jan. 17, 2011.
Dues Check Off
SB 2 Sen. Marsh
Act No. 2010-761
The most controversial element of the package, this new law prohibits the state, counties, cities and “any other governmental agency” from withholding compensation from the paychecks of employees in order to pay the dues for organizations that use “any portion” of such dues “for political activity.” Deductions can be made for organizations which certify that “none of the dues will be used for political activity,” which is broadly defined in the act.
The ACCA worked with other governmental associations to secure amendments that make it clear this new law applies only to dues for individual employees. This change ensures that counties may continue to pay dues to the ACCA as well as its affiliate organizations without violating this statute.
Counties are encouraged to very closely review the provisions of this law to ensure that they receive the proper certification from organizations seeking dues check offs. Further, counties and other governmental organizations should monitor the payment of dues to organizations in which the “person,” rather than the county, holds a membership.
This new law is effective on March 20, 2011.
HB 10 Rep. Ball
Act No. 2010-759
Legislation very similar to this new law has passed the House during the last several regular sessions, but was always stalled in the Senate. This new law prohibits recipients of state funds from expending state money on specific projects at the direction of legislators. Counties are clearly subject to this new law.
The law prohibits legislators from directing agency heads (including county employees and officials) to fund projects with state revenue. The law also establishes an “affirmative duty” for agency heads (including counties) to report a legislative request to their supervisor or to the Alabama Ethics Commission.
Language in the new law allows legislators to lobby to “protect and promote” activities in their districts, but does not allow the lawmakers to provide specific directives for funding to be allocated to specific projects.
This new law became effective on Dec. 20, 2010.