Tuesday, December 7, 2010

Alabama Ethics: The Blue Harbor Decision

Jim Sumner,
 longtime director of the Alabama Ethics Commission

           Over the next week or so I plan to give some thoughts on Alabama's ethics laws and the Alabama Ethics Commission, which is charged with enforcing them. My opinion of the commission is low. However, I do support most of the changes proposed by Gov. Riley that will be addressed by the Legislature in the coming special session.
            During the special session, I think lawmakers must ask Commission Director Jim Sumner to explain the decisions he and his staff made in deciding not to pursue a complaint against northwest Alabama businessman Dennis "Blue" Harbor.
           Sumner, as director, is the highest ranking employee of the commission. He serves at the pleasure of the five-member commission, which is composed of political appointees.
            In my book, "The Governor of Goat Hill," I addressed the decision at length in a chapter about a complaint accusing Siegelman of using his office to funnel some $800,000 from the state to himself. That complaint, for which Siegelman was cleared by the commission, involved a convoluted and secret settlement by the state of a tobacco lawsuit brought by the University of South Alabama. (The legal fee deal was, as I argue in the book, the most serious and certainly the most lucrative criminal act by Siegelman during his tenure as governor.)
            In the excerpt, I am putting in bold points made and questions raised in the chapter that I believe should be asked of Sumner in the coming special session. There is also a link at the bottom to a recent news story that bolsters some of the points made in the excerpt.
            Here, from the chapter, "Ethics, Alabama Style":

            Any doubt that Siegelman would skate on the legal fees case was erased in April (2002), when the commission dropped its investigation of Dennis “Blue” Harbor, the Siegelman backer and friend and occasional business partner of Roger Bedford.
            I didn’t think my estimation of the commission – the competence and backbone of its investigative and executive staff and its politically appointed commission -- could sink any lower. The Blue Harbor case illustrated, not for the first or last time, that the commission, rather than policing corruption, enables it.
            It occasionally busts little fellas, but finds excuses to clear or avoid investigating powerful people. By doing so, it encourages rather than deters public corruption and should be abolished. (Note: I think the clerical staff should be retained to receive/organize records, such as the statements of economic interest that public officials are required to file.)
         Based on his public title – member of the Marion County Water Authority – Harbor would seem to be one of those little fellas. He was anything but. He’d made a splash the previous summer when Bedford was revealed as having tried to force the Marion County Commission to pay $3 million for land owned by
Harbor and valued at a fraction of that. He’d also donated $7,000 to Siegelman’s 1998 gubernatorial campaign.
            The ethics case against Harbor involved another matter, if most of the same players. As with almost every corrupt act exposed in Alabama, it was brought to the public’s attention by print reporters.
            (Birmingham News reporter Brett) Blackledge’s August 2001 story made a strong case for a violation of a crucial and seemingly straightforward portion of the ethics lawIt reads: “No member of any county or municipal agency, board, or commission shall vote or participate
in any matter in which the member or family member of the member has any
financial gain or interest.”
            In 1999, Harbor began pressing fellow members of the authority to fund a
$945,000 water line extension along Marion County 25 – a route whose residents
included Harbor. More importantly, the project would bring running water to his
timber business and allow him to develop 200 lots on 255 acres he owned.
            The purpose of such projects is to provide water to rural, frequently poor areas
where residents get their water from wells and springs. Boards like the one on which
Harbor sat seek Community Development Block Grants (CDBG), which are federal
funds awarded through ADECA. CDBG grants are supposed to be competitive and
blind to politics, but in the Siegelman administration, were anything but.
            Until Harbor came along the Marion County 25 project was well on the
back-burner. Authority members were focusing on a project to extend service
along Alabama 19. Residents along the road had petitioned the board seeking
water services; it was a cheaper project; and satisfied the program criteria to a far
greater extent than the one pushed by Harbor.
            Harbor won the day because, as he told the other members, Bedford could
guarantee funding for Marion County 25, but no such assurances existed for the
other project.
            The smell factor was ratcheted up with the news that Bedford had sold Harbor
much of the land to be improved by the water line, and done so just months
before the funding went through.
            Harbor didn’t recuse himself from voting on the project and, amazingly, didn’t
tell authority members he stood to benefit from it.
            Blackledge's story presented all the key elements of a serious ethics violation. An 
official using his influence to promote the spending of public funds in a way that would benefit 
him; failing to disclose the conflict; and voting for the project.
            Huntsville lawyer Dean Johnson cited the story in filing an ethics complaint
against Harbor. The commission, as is its normal practice, assigned the matter to
one of its investigators.
            Complaints determined to have merit are presented to the five-member
commission. The commission’s lawyer, Hugh Evans, serves as prosecutor, which
must encourage defendants. Evans is one of those poor souls frequently seen not inside 
but outside office buildings, dragging for dear life on a cigarette. Nothing about him
suggests a prosecutor with fire in his belly.
            The commission’s chief investigator, Charles Aldridge, got his first job with
the state when then-attorney general Siegelman hired him in the late 1980s.
(Aldridge was in charge of the Siegelman legal fees case).
            It doesn’t help that the commission operates under a weak law. It doesn’t have
subpoena power and can’t compel witnesses to testify. Its hearings are held behind closed doors.
            As a result, there’s no way to gauge the eectiveness of the sta or
learn the first thing about evidence for and against a government official. (Note: For the reasons stated there, I believe that ethics commission "trials" should be open to the public.)
            Defendants are present and represented by lawyers who can call witnesses, argue their client’s case, and invariably dwarf Evans’ skills and vigor.
            After the hearing, the doors are opened. Commissioners cast their votes in
public, though without comment. They don’t determine guilt or innocence, but
rather a finding of probable cause – much the same as a grand jury. If the commission finds probable cause, the case is forwarded to a local district attorney or the Alabama attorney general’s oce for potential prosecution.
            Many commission cases aren’t pursued because prosecutors, especially those in
the attorney general’s oce, have such low regard for the legal and investigative
skills of the sta and the strength of the cases it does produce.
            Defense lawyers love to say of grand juries that they will “indict a ham
sandwich.” One could say of the Alabama Ethics Commission that it would indict
a ham sandwich, but not a steak.
            The process is a crooked politician’s dream, made all the more so by the sta’s
failures of talent and courage.

State Sen. Roger Bedford,
Democrat from Russellville --
 friend and business partner of Dennis "Blue" Harbor

            On April 2, commission investigator David Green wrote Dean Johnson, the
complainant, to report that the Harbor case “has been closed after an initial inquiry.”
            Green informed Johnson that the commission sta found “no evidence that
Mr. Harbor benefited from the Highway 25 water project any more than any other
member of the class of property owners along the highway.”
            Nothing could have been further from the truth. No other property owners
along the road had holdings to compare to Harbor’s home, his timber business
and 200 undeveloped lots. To refresh, I re-read Brett’s first story. It bolstered my impression that the Harbor decision could gut the state’s ethics law. I made my case to (my editor) Paul Cloos that we do an in-depth piece analyzing the decision. He agreed and I went to work.
            I called some of the authority members and was surprised to learn that no one
with the ethics commission had contacted them. No wonder the commission hadn’t
found any evidence that Harbor benefited more than others – it hadn’t looked!
            The decision was so bad as to make me wonder if Melvin Cooper -- the
commission’s director from its inception in 1974 until his retirement in 1994 –
would comment. Cooper said, as we reported, that he’d made it his policy never
to criticize his successors in the various military and civilian positions he’d held.
But the Harbor decision threatened the ethics law and for that reason, he would
make an exception.
            He said the commission sta had disregarded “the clear wording of the ethics
law prohibiting public ocials and employees from voting on matters in which
they have a financial interest or they were not fully cognizant of the future eects
of such a poor decision.”
            We quoted other experts saying much the same thing.
            As its rationale for killing the case, the sta reached out to a 1985 state Supreme
Court ruling pertaining to the innumerable Alabama legislators who hold jobs in
public education. The court had been asked to decide if those lawmakers could
vote on raises for teachers and educators if such votes would increase their own
pay. It ruled that educator-legislators could cast such votes.
            The Supreme Court concluded that the prohibition against voting on matters
of “personal or private interest” was intended to prevent public ocials from
using their influence to help themselves either individually or “as a member of a
small group.”
            The ruling noted that courts in other states had decided that lawmakers could
vote on matters in which they might benefit as long as the class of those benefiting
was  substantial.  In the educator pay raise case, the size of the class that would
benefit from the lawmaker votes was in the tens of thousands.
            The story ended what had been a cordial relationship with Ethics Commission
Director Jim Sumner. Until then, it wasn’t unusual for him to see me in the
lobby reviewing ethics reports and invite me into his oce. But he was angry that
friendly Eddie would scrutinize the commission and livid to learn that Cooper
had commented on the case.
            The Harbor decision that Sumner signed off on put him in a corner and he
knew it. I simply wanted him to explain to our readers the potential impact of his
actions on the ethics law. His bristling tone suggested he’d rather do anything but.
            I asked him at what point a class became small enough so as to prohibit an
ocial belonging to it from taking actions that would benefit the group. Sumner
said there was no specific answer. It was possible, he said, that a class could contain very few people. “The more local the entity, the smaller those classes become,” he said. “But our general rule is if a matter affects you in a particular way, you shouldn’t vote on it.”
            In a state crawling with politicians blind to conflicts of interests, shouldn’t is
an invitation to steal.
           Alabama's ethics sheriff tried to dodge a central question that I basically insisted he answer: Must a public official with a financial interest in a matter recuse himself
or, failing that, inform his fellow board members of the potential conflict?
            Sumner said that while he recommended that public ocials refrain from
voting on projects that would benefit them financially, in many if not most cases,
it’s allowable for them to cast such votes.
            He further said that ocials don’t necessarily have to reveal that they could
benefit from a project, though out of caution and because it’s the right thing to
do, they should.
            If it wasn’t so pitiful it would’ve been funny.
            I didn’t believe for a moment that Green, the investigator, came up with the
“member of the class” excuse.
            I suspect that this novel pretext for giving Blue Harbor a pass came from
outside the commission sta, that pressure was exerted and that Sumner, possibly
out of fear of losing his job, caved in. But it matters not. Nothing can excuse the
Harbor decision or Sumner from signing o on it.
            The writing was on the wall. Siegelman had nothing to fear from this gang.

           End of Excerpt
       I think legislators should ask Sumner if any commissioners exerted pressure on him and the commission staff to kill the Harbor case; if his staff came up with the "class" defense, and if not, who did; and if he considers the decision to have weakened the ethics law.
           Does it, in other words, continue to represent the position of the commission and as such, can public officials act similarly as Harbor and not fear being found in violation of the state ethics law?
            If pressure was exerted from outside, did he and the staff act in accordance with the ethics statutes in caving into that pressure?
            If pressure came from outside (it should be obvious that I believe it did), and Sumner caved into the pressure, does he feel he is qualified to serve in a position that requires considerable will and courage?
            Did he place his desire to hold on to his job above the requirements of his job to enforce Alabama's ethics laws?
            If he caved in, does he feel he is fit to lead the commission? (I am, as is probably clear, of the opinion that he is not.)

             Here is a link to a story, published Dec. 2 in the Montgomery Advertiser, under the headline: "Autauga sheriff violated ethics law, Alabama Ethics Commission says."    Though the sheriff apparently won't receive harsh punishment, the fact that he even came before the commission -- whereas Harbor did not -- supports my argument that the Ethics Commission  would indict a ham sandwich, but not a steak; and I'm not sure what improvements to the law can change that.


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