Birmingham Airport Authority wins appeal of major ethics ruling

The Birmingham Airport Authority (BAA) has won its appeal of a ruling by the Alabama Ethics Commission determining that BAA’s employees are considered public employees under Alabama’s ethics law.

As part of its appeal of the Ethics Commission’s 2019 ruling, BAA contended that because the salaries of its employees come from user and landing fees paid by airlines, as well as rental and concession fees at the airport, they do not fall within certain provisions of the Ethics Act.

Montgomery County Circuit Judge Brooke Reid agreed and outlined in her order granting summary judgment for BAA that “the funds used to pay [BAA] employees are self-generated revenues that are not derived from or linked to actual taxpayer contributions, and therefore those funds do not constitute ‘state, county or municipal funds’ as that phrase is used in the Ethics Act.”

Based upon that determination, Reid held that BAA employees are not “public employees” under the Ethics Act.

Mark White, an attorney representing BAA, asserts that the Ethics Commission’s interpretation of the law could have affected people working for many other utility boards and airport authorities around Alabama.

“This was going to create a mess for thousands and thousands of people working for these entities,” White told Yellowhammer News. “This was really an invasion of the private sector.”

Numerous requirements and restrictions accompany the designation as “public employees” for purposes of the ethics law, including the filing of annual statements of economic interest with the Ethics Commission.

White cited the fact that an employee who simply worked the jetway or on the tarmac at the airport would unknowingly be subject to Ethics Commission filing requirements as an example of why the ruling by the regulatory body was problematic.

“Nobody is in favor unethical conduct,” he stated. “However, the average person should be able to know and tell if they are breaking the law. This is not possible if the Ethics Commission is arbitrary in its interpretation of the law.”

Reid’s interpretation of the law follows the precedent set by previous cases, according to White.

“These provisions are not new,” he stated. “It has always been interpreted this way.”

And he believes the Ethics Commission’s ruling from last year stood on “a novel argument.”

“It is difficult to know why that interpretation changed,” White remarked.

Several other airport authorities and utility boards from across the state filed briefs in support of BAA’s position, an act White called “very meaningful and helpful.” He said nearly 40 utility boards were represented by the supporting briefs.

Directors for each board are still considered public officials and required to comply with provisions of the Ethics Act. In addition, White is quick to point out that board members and employees remain subject to other parts of the Ethics Act, as well as the criminal code.

Tom Albritton, executive director of the Alabama Ethics Commission, said the agency has yet to determine its next course of action.

“We’re reviewing the order and have not yet decided whether we’ll appeal,” he stated to Yellowhammer News.

Tim Howe is an owner of Yellowhammer Multimedia