Earlier this month the Alabama Ethics Commission issued an opinion approving of a potential employment arrangement between Republican State Rep. Randy Davis of Daphne and Arc Terminals, an oil storage and transportation company that does business on the Gulf Coast and lobbies both local and state officials. The opinion, which took the commission months to reach, is one of many they have written in an effort to clarify the Alabama Ethics Law, a statute passed to prevent lawmakers from acting in conflicts of interest, but of which involved parties have much different interpretations.
Arc Terminals owns several petroleum product storage facilities in the Mobile area and has drawn regular opposition at Mobile City Council meetings. It was this type of issue that Arc Terminals said it was looking to address when it was considering Davis for a position as a public relations specialist.
“In 2015 while searching for a spokesperson, Mr. Davis was repeatedly recommended based on his past experience as the chief spokesperson for the local county school system,” Arc wrote in a statement. “Before exploring any specific opportunities, both Arc and Mr. Davis followed both the spirit and letter of the law by requesting a formal opinion from the Ethics Commission.”
The Ethics Commission’s unanimous opinion on the matter approved of a potential work arrangement as long as Davis would be employed “for reasons unrelated to the … public service of a public official; he may not, however, use his position as a member of the Legislature to benefit himself or his employer.”
In other words, Davis — and any lawmaker — cannot be employed by a so-called “principal,” or company that retains a lobbyist, simply because he or she holds public office. So, in this case, presumably based on the statements of Davis and Arc Terminals to that effect, the Ethics Commission determined “assuming the offer of employment is unrelated to his official position, which it appears to be, Representative Davis may accept employment with Arc Terminals.”
Situations similar to the one between Davis and Arc have ended up not just in Ethics Commission opinions, but in headlines and courtrooms across the state in past years, and questions have come up about different standards for different people.
Last year, the Ethics Commission released an opinion approving of State Rep. Patricia Todd’s (D-Birmingham) work for the Human Rights Campaign — a progressive activist organization — that started a firestorm in Yellowhammer politics. Attorney General Luther Strange and all of Alabama’s district attorneys signed a letter to the commission requesting a revision to the opinion on Todd’s employment, which Strange and the DAs said “practically permits an interest group [HRC Alabama] to pay a legislator [Rep. Patricia Todd] to lobby the Legislature and state and local governments.” The letter continued “we find the Ethics Commission’s legal analysis to be fatally flawed.”
In a memo obtained by Lagniappe, the Attorney General’s office disputed the Ethics Commission’s argument that Todd’s case and those like it fell under an exception to the ethics statute, writing the “proposed arrangement [between Human Rights Campaign and Rep. Todd] does not fall under any exception to the law. The closest exception to the prohibition at issue is for ‘[c]ompensation and other benefits earned from a non-government employer, vendor, client, prospective employer, or other business relationship in the ordinary course of employment which make it clear that the thing is provided for reasons unrelated to the recipient’s public service as a public official or employee.’ Ala. Code § 36-25-1(34)(b)(10). This exception does not apply for at least three reasons.’”
The AG memo then lists as one of those reasons, “By accepting paychecks from HRC Alabama, a principal, Rep. Todd would be violating the plain language of Ala. Code § 36-25-5.1(a).”
Based on that letter and reasoning, the Ethics Commission reversed its ruling, later issuing an opinion saying Todd’s employment by HRC would constitute a conflict of interest and was not permitted under the Alabama Ethics Law.
Ironically, though, Rep. Davis’ situation seems to be the same. Under the arrangement with Arc, Davis, clearly a public official, would be regularly receiving a paycheck from a principal. (Arc retains the lobbying services of Windom, Galliher and Associates of Montgomery, headed by former Alabama Lt. Gov. Steve Windom).
Despite this seeming contradiction, it now seems the potential confusion as to what the Ethics Law actually requires will go unaddressed for now. The Attorney General’s office did not weigh in on the Davis opinion, and Arc recently released a statement saying that because of the length of time it took the Ethics Commission to address the inquiry, the company found another public relations specialist — Mobile-based Strategy Public Relations.
“Randy Davis is not currently employed by Arc Terminals,” the statement says, “nor has he been at any time in the past. Our joint insistence on pre-clearing this matter before the Ethics Commission was intended to insure transparency and promote integrity.”