Deep Breaths..., 0518 ALBJ, 79 The Alabama Lawyer 169 (2018)
| Author | By Edward A. Hosp |
| Position | Vol. 79 3 Pg. 169 |
HB317 Doesn't Actually Gut the Ethics Act
By Edward A. Hosp
The outrage sparked by House Bill 317, the self-titled "Alabama Jobs Enhancement Act," has been somewhat perplexing. For numerous weeks now, several Alabama media outlets, as well as some public officials and a prosecutor appointed as special prosecutor for the case against former Speaker Mike Hubbard, have warned that the bill would "gut" the Ethics Act, and lead to members of the legislature being hired by powerful interests as "economic developers." Additionally, we have been told that the bill would allow economic developers to spend unlimited amounts of money on public officials in an effort to obtain favorable deals for their employers-all without disclosure of those expenditures to the public.
The uproar is confusing because the plain language of the bill simply would not allow any of that.1 In fact, the only thing it seems that the bill would do with respect to the Ethics Act is clarify that economic developers who do not seek action through any legislation do not have to register with the Alabama Ethics Commission. This clarification was deemed essential by the community of economic developers because the projects on which they work are routinely required to be kept confidential during the selection process. Additionally, it is important to understand that this (non-registration, that is) has been the standard practice both before and after the 2010 changes to the Alabama Ethics Act.
A. How Did We Get Here?
For decades, lobbyists in Alabama have been required to register with the Alabama Ethics Commission and disclose the entities that they represented before legislative bodies. Prior to 2011, registration was required only for efforts to influence legislation or regulations at the state or local level, though. Specifically, Alabama Code Section 36-25-1(20) defined (and still defines) lobbying as: The practice of promoting, opposing, or in any manner influencing or attempting to influence the introduction, defeat, or enactment of legislation before an2 legislative body; opposing or in any manner influencing the executive approval, veto, or amendment of legislation; or the practice of promoting, opposing, or in any manner influencing or attempting to influence the enactment, promulgation, modification, or deletion of regulations before any regulatory body. The term does not include providing public testimony before a legislative body or regulatory body or any committee thereof.
Id. (emphasis added). Typically, those involved in economic development are not involved, at least in the early, confidential stages of a project, in efforts aimed at passing or altering legislation or regulations. As such, until 2011, economic developers did not register as lobbyists with the commission, and no one believed that they needed to.
In 2010, the legislature added a new provision to the Code, which provided an additional definition of lobbying. Section 36-25-1.1, which became effective in 2011, now provides that: Lobbying includes promoting or attempting to influence the awarding of a grant or contract with any department or agency of the executive, legislative, or judicial branch of state government.
No member of the Legislature, for a fee, reward, or other compensation, in addition to that received in his or her official capacity, shall represent any person, firm, corporation, or other business entity before an executive department or agency.
Although this new provision arguably encompasses some of what an economic developer does in the course of his or her early efforts on behalf of a project, generally speaking it was not read to include those individuals. Thus, economic developers continued to operate in Alabama without registering as lobbyists. There is a legitimate debate as to whether that was an appropriate interpretation based on the 2010 change in the law, but it cannot be debated that-in fact-the economic development community did not consider themselves to be lobbyists under the Ethics Act, and therefore did not register.
Then, at the Alabama Ethics Commission's August 16...
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