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Pending Legislation Would Decriminalize Provisions of the Ethics Law

By: Steve Marshall

Today, the Alabama House of Representatives will debate the latest attempted rewrite of our current ethics laws. I am strongly opposed to this legislation. It is important to me that the members of the legislature and the general public understand why.

This bill decriminalizes an array of ethics offenses, rendering them subject to civil, not criminal, penalties imposed by the Ethics Commission. Current law already provides for the non-criminal resolution of minor ethics violations. 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.

For example, if a legislator knows that he or she has a conflict of interest while sponsoring or voting on a piece of legislation—even a conflict involving a substantial financial interest—that conduct would now be subject to a civil penalty. If a public official directs or steers a government contract or other financial business to benefit himself or a family member, that conduct would now be subject to a civil penalty. If a legislator lobbied his own legislative body on behalf of a client, that conduct would also now be subject to a civil penalty. Where the criminal penalties used to be, House Bill 227 instead stands up a new regime of public reprimands and civil penalties for conduct that simply cannot be excused as accidental or unintentional.

This legislation also dramatically expands what public officials can legally receive from lobbyists and other special interests. Lobbyists and other “prohibited sources” will now be able to spend up to $100 per occasion or $500 a year on gifts to public officials, even while expanding the list of items not subject to these limits. Food, hospitality, and travel expenses for educational and economic development functions are already permitted under current law, begging the question—what other spoils would a politician really need a lobbyist or principal to pay for?

Under this bill, a public official’s sibling or adult child is also able to receive gifts or other benefits, in any amount, even from a lobbyist or someone with business before the governmental body. To make matters worse, the first two violations of the “gift ban” would now be subject only to civil penalties—regardless of the amount given or received. In the spirit of compromise, my Office recommended a change to this legislation that would provide civil penalties for ethics offenses involving less than $1,500 in exchange for clarifying our continued ability to prosecute genuine corruption without additional impediments. That offer was rejected, leaving me to conclude that this rewrite isn’t just about the fear of inadvertent mistakes.

Though this debate too often centers around the myth of public officials going to jail over having a meal paid for, this distracts from the very serious questions presented by this bill—what standard does the public want us to hold ourselves to? The truth is, regular folks want honest government, disinterested decisionmakers, and if I had to guess, would rather elected officials just pay for their own meals.

The now-infamous Republican legislative agenda in 2010 promised to put an end to an “atmosphere that breeds corruption and encourages graft.” Though we have come a long way, there are plenty of reasons for me to simply say that we are not there yet.

            Steve Marshall is the 48th Attorney General of Alabama.