By Bill Britt
Alabama Political Reporter
MONTGOMERY—On October 7, in a unanimous vote, the Alabama Ethics Commission approved an opinion that would end the practice of Executive On Loan, sort of, because future arrangements would be evaluated on a “case-by-case” basis.
In an unusual move, the Commission unilaterally issued the opinion without having received a request for such an action. This is generally outside the scope of its normal operating procedure and was done without citing an authorizing rule or statute.
In its opinion, the Commission describes the activity as, “a recurring situation whereby a private-sector entity will loan to State government (at various levels and various branches), an employee to assist that State agency or department in performing the functions and responsibilities of State government while continuing to pay the loaned employee’s salary and benefits from sources outside State government. The individual functions as a public employee but is paid through some other source.”
An example of this was the appointment of former Speaker of the House Seth Hammett as Gov. Robert Bentley’s interim chief of staff, while being paid by his employer, Power South. Other than taking blame from Republican talking heads for Bentley’s move to raise taxes, his services is without controversy. Hammett recently ended his tenure with the Bentley administration.
In its opinion, the Commission points to the potential for a conflict of interest, and the underlying suspicion that could surround such appointments.
The Commission concludes, “an employee who is paid from a source other than public money but who performs all of the functions of a public sector employee cannot serve under that arrangement without violating the fundamental principles underlying the Ethics Act.”
However, in the next sentence the Commission leaves the door open for exceptions: “Recognizing that many arrangements under the Ethics Act revolve around complex sets of facts which might create exceptions to prohibitions under the Code, the Commission will consider approving such arrangements but only on a case-by-case basis through formal requests for an Advisory Opinion…,” reads the text.
Exceptions for lawmakers are a matter of routine with the Commission, who seem more eager to please than to uniformly enforce the ethics laws.
In 1987, and 1993, the Commission issued advisory opinions for an Executive On Loan, but in very limited situations. The Commission rightly points out State ethics laws have been strengthening over the last several years, narrowing the definition of conflict of interest.
The Commission recognizes not only the change in the laws but also the “shift in the manner in which private sector interests have sought to interact with government.”
While saying these appointments may appear to constitute a conflict of interest, the Commission makes it clear, that past arrangements were beyond consideration or prosecution.
The opinion doesn’t take affect until 60 days from the date of adoption.
