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Birmingham Airport, state water boards push for clear application of ethics law

More filings rolled in on Wednesday in the quest to determine which employees are considered “public” for purposes of Alabama’s ethics law.

The Birmingham Airport Authority (BAA) and the Alabama Water and Wastewater Institute (AWWI) filed briefs urging Montgomery Circuit Judge Brooke Reid to deny a motion by the Alabama Ethics Commission to revise an order she issued in June.

Reid had ruled that BAA employees were not public employees because the funds used to pay them is generated from private sources, such as user and landing fees paid by airlines and rental and concession fees at the airport. Alabama’s ethics law outlines that an entity’s employees are subject to the ethics laws if the funds used to pay their salaries come from “state, county or municipal funds.”

The issuance of Reid’s order brought about a clarity welcomed by BAA and nearly 40 utility boards from across the state that supported BAA’s position.

“This was going to create a mess for thousands and thousands of people working for these entities,” Mark White, an attorney representing BAA, told Yellowhammer News last month. “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 previously 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 what motivated BAA to pursue its clarification of the law.

In asking Reid to revise her order, the Ethics Commission proposed a new standard for determining if someone is not a public employee.

Rather than looking to whether someone is paid through taxpayer contributions, the commission asserted the standard should be whether their salaries were paid out of revenue from negotiated “commercial arms-length” transactions.

This new proposed standard left White questioning the commission’s approach.

“Unfortunately, and for reasons unknown, the Ethics Commission is trying to change the facts and the law that resulted in Judge Reid’s order by simply ignoring both,” he said.

AWWI pointed out in its recently filed brief that the proposed standard would leave its members having to untie a tangled knot of revenue.

The association, which represents 19 water and sewer suppliers in Alabama, noted that while some services are negotiated, those are the exception in the water and sewer business. The industry standard is payment by customers according to set rates. Trying to determine which employees were paid out of which funds would be a significant burden, according to AWWI.

AWWI joined BAA in its belief that the Ethics Act should apply to those employees whose salaries are actually paid out of taxpayer dollars.

Under this strict interpretation of the law, directors for each board are still considered public officials and required to comply with provisions of the Ethics Act. In addition, board members and employees remain subject to other parts of the Ethics Act, as well as the criminal code.

Read BAA’s entire response below:

Airport Authority Response to Motion to Modify by Yellowhammer News on Scribd

Tim Howe is an owner of Yellowhammer Multimedia

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