A meeting expected to provide clarity on some pressing issues for the Birmingham Airport Authority produced lengthy debate between members of the Alabama Ethics Commission and its staff over their responsibilities in interpreting the ethics laws.
The point of contention at this week’s meeting was a belief by the commission’s legal staff that the body should seek guidance from the attorney general’s office on the definition of certain terms contained within the ethics law.
Tom Albritton, executive director of the Alabama Ethics Commission, told Yellowhammer News that the commission has not sought an attorney general’s opinion at any point since he began working there. Albritton has served as executive director since March 2015.
While acknowledging the rarity of the proposal, the commission’s general counsel, Cynthia Raulston, spoke before the commission and asserted that this situation was different.
“One of the other topics that has come up is the long-standing history between the AG and the ethics commission that the AG not answer ethics questions that are contained within our act,” she said. “We believe this very specifically is outside of our act.”
She argued that outside guidance was needed because it was unclear what constitutes “state, county or municipal funds” as the terms are used within the ethics act.
At least one member of the commission, and the attorney representing the Birmingham Airport Authority, expressed their belief that Alabama law accords the commission, not the attorney general, with the responsibility for interpreting issues and terms contained with the ethics act.
To bolster his own contention, attorney Mark White, who represents the Birmingham Airport Authority, cited a provision within the ethics act about funding.
“That is ethics act provision,” he stated. “That is not outside the ethics act.”
White attempted to sharpen his argument that the commission issue his client an advisory opinion by pointing out that the commission is required by law to issue opinions upon request.
“We are absolutely opposed to postponing this,” he said of the staff’s desire to delay issuing an opinion until August. “We think this commission not only has the ability but is mandated to give an opinion on this particular issue because that’s what the statute says. If it’s an ethics act interpretation, you give that.”
Ralston countered that she had already communicated with the attorney general’s office.
“We had talked to the attorney general, and they had said that it is appropriate to answer because it is outside of our act and that it is an appropriate question for them to answer,” Raulston said.
Commissioner Charles Price pressed Raulston on whether this case really required the shifting of duties between the agencies.
“If we are charged with making the decision according to the ethics act, whatever that decision may be, why don’t we make it?” he queried Raulston. “And then if Mr. White wants to go into Circuit Court or get an attorney general’s opinion and let a judge decide whether that’s controlling, that’ll be his business. We’re called upon to make a decision, whatever that decision might be. Then Mr. White can do for his client whatever he wants to do.”
Price continued, “I don’t know why the ethics commission first has to go to the attorney general’s office to get an opinion on the interpretation of the ethics law when that’s what we’re charged to do.”
Albritton spoke up in response to Price and disputed that notion.
“Let’s be clear, we’re not asking them to interpret our act,” said Albritton.
Price also indicated concern over the timeliness of the commission’s action.
“This has been around for quite a while,” he concluded. “We have to resolve this issue.”
The Birmingham Airport Authority submitted its request for an advisory opinion to the commission in January. Someone familiar with the issuing process for attorney general’s opinions explained to Yellowhammer News that it is a deliberative process, in its own right, given the weight and importance of the opinions.
At the commission’s April meeting, White outlined that he had sought a formal ethics opinion for his client based on the commission’s own recommendation.
“In fact, part of the reason we are asking this is when the commission staff did the training for the Birmingham Airport Authority in December, they were told – three brand new board members, by the way – they were told the only way you could really be sure about something was to get a formal opinion,” White told the commission. “Frankly, I think that’s good advice.”
He reaffirmed this on Wednesday and also recounted that the attorney general’s office said much the same during its argument before the Alabama Supreme Court in the case of former Speaker of the House of Representatives Mike Hubbard.
“The attorney general, the solicitor general, if he said it once, he said it multiple times, that the safe harbor for someone – in this case the airport authority – is an opinion from this body,” White detailed.
At the conclusion of the back and forth, Commissioner Beverlye Brady made a motion to seek guidance from the attorney general. However, that motion died for a lack of a second.
Albritton indicated that the next step for the commission is to issue an advisory opinion on the questions presented.
“Our Commissioners concluded that the questions fall within the purview of the Commission to answer, and I understand and appreciate their decision.” he told Yellowhammer News. “Therefore, we will do as we’ve been instructed by them and answer the question.”
Read the Birmingham Airport Authority’s request for an advisory opinion:
Birmingham Airport Authority by Yellowhammer News on Scribd
Tim Howe is an owner and editor of Yellowhammer News