Alabama House Representative Matt Simpson (R-Baldwin) plans to introduce a bill next week which would reduce the Alabama Ethics Commission to little more than a civil regulatory agency.

The Alabama Ethics Commission is the state’s only independent, nonpartisan agency responsible for holding lawmakers and public officials accountable, but a draft proposal recently courted throughout Montgomery removes its ability to investigate criminal ethics violations and give those public servants the ability to remove the AEC director and its commissioners.

When speaking to The Times by phone Saturday, Feb. 17, Simpson, who heads the House Ethics and Campaign Finance Committee, said that leaving the AEC’s ability to issue civil penalties and handing any cases where criminal activity is suspected to the Attorney General’s Office or to a local district attorney, would create a form of checks and balances to protect against a “rogue” commission. A fear of which he said was based on “horror stories” he had heard about the commission’s activities.

“I’m not saying any of this stuff is true, but if it was, there’s nothing we could do. Some of the horror stories you hear are people that could be charged with crimes being told that if they paid a fine and a fee they could do an administrative resolution on the matter and not have to being prosecuted or go to jail. That’s troublesome to me,” Simpson said.

“This bill would remove all criminal penalties from the ethics code and would authorize the commission to impose private censures, public reprimands, civil penalties and restitution,” the draft says.

In a response to the bill dated Feb. 14, the AEC argued that a method of checks and balances was already built into the existing statute. The current law allows for the AEC to recommend cases to the Attorney General or district attorneys, if an investigation uncovers a criminal violation, but does not allow the commission to carry out that prosecution. Conversely, prosecutors are granted the authority to conduct their own concurrent, independent investigations to bring about criminal ethics charges without a recommendation from the AEC.

The AEC response also said it was impractical to separate civil and criminal cases because civil violations can often carry potential criminal implications.

“The district attorneys and the Attorney General already have the ability to investigate and prosecute violations independent of any involvement by the AEC under the current Act. In practice, this separation provides no benefit to anyone and only hinders public servants from receiving accurate, consistent and helpful guidance,” the response said. “This shifts the burden of conducting complex, and often politically charged investigations to local district attorneys’ offices who may lack the staff and resources to complete such an investigation.”

Out of the nearly 400 complaints submitted to the AEC last year: 268 were closed after a preliminary inquiry, 18 were closed due to a lack of probable cause, 60 were presented to the commissioners and only 10 were referred for prosecution.

Because Simpson’s proposal would eliminate the AEC’s five team special investigator unit and its ability to determine a lack of probable cause, according to the AEC response, the investigations to narrow down that caseload would fall on the shoulders of local officials.

Simpson said one of the issues he has found with the current Ethics Law is that it can often times be confusing and even he, with 20 years experience as a prosecuting attorney, will need to reach out to the AEC “quite often” to ask what is and isn’t allowable under the law. He said after accounting for the family members of public servants, nearly 1 million people are covered under laws that might make otherwise legal activity illegal.

“We can’t just continue to duck our head in the sand and there’s a problem, but nobody wants to address it because they may get a bad headline written about them. You read opinions from the Board of Criminal Appeals for the Supreme Court of Alabama and they talk about how vague our Ethics Laws are,” Simpson said.

According to the draft bill, the most effective way to make these laws easier to understand is by drastically reducing the number of people governed by them and removing many of the current laws’ safeguards against corrupt activity.

Under Simpson’s proposal the value of what is considered a “gift” would be increased from $25 to $100 and public servants would be allowed to solicit them from the people and businesses they regulate. The bill also fails to define who is considered a “friend” of a public official making it easier for them to accept gifts from lobbyists, unless it can be proven that the gift wasn’t given because of the recipient’s position. This is a reversal of the current law which requires public officials to prove they were not being corruptly influenced.

“This essentially creates a requirement that there be a contract to corruptly influence for a ‘public servant’ to be guilty,” the AEC response said.

The definition of “family member” would be reduced to only include the spouse of a public servant which would allow public contracts be awarded to an official’s parents, siblings, in-laws, adult children or anyone else living in their home who hasn’t been claimed as a dependent. These individuals would also be free to accept gifts from lobbyists without limitations.

Where public officials are currently prohibited from using their office for “personal” gain, the new proposal would require “financial” gain, meaning that public servants could exchange political favors to get out of traffic tickets or pressure media outlets for favorable coverage without committing any violation.

Public servants who are found to have used their office for personal gain would only be subject to civil penalties until their fourth offense and could only be charged with a Class A misdemeanor unless the financial gain was found to be more than $10,000. Former Hanceville Mayor Kenneth Nail, who was charged with 15 felony counts of using his office for personal gain in November 2023, was ordered to pay $4,000 in restitution as part of a plea agreement. Under Simpson’s proposal, Nail’s 15 felony charges combined would only be considered a misdemeanor charge.

The bill would also remove the AEC’s ability to issue private informal opinions to lawmakers and prosecutors which it said allows a more consistent interpretation of the law when applied to individual situations. Simpson argued that the opposite was true and felt as though those opinions should be made public.

“They’re doing just an incredible amount of informal opinions and there’s no publication behind them. There’s no rationale behind them. You can tell one person one thing in an informal opinion and tell another person another thing. They can be inconsistent rulings but no-one would know.”

Simpson said he requested one of these informal opinions — which was shared with The Times — at the end of last year’s legislative session. Simpson said he was enquiring if he would be in violation of the state’s “double dipping” — which prevents a member of the Legislature from being employed by any other branch of state government during their term — if he were to accept a part-time, contracted position with the Mobile County District Attorney’s Office.

Simpson was told he would not be in violation of the Ethics Act as long as he remained mindful of any potential conflicts. However the Legislative double dipping statute exists in a separate section of the Alabama Code, Section 29-1-26 and he was recommended to contact Attorney General Steve Marshall.

Simpson said Marshall cleared his employment based on a 1979 Attorney General opinion in May 2023 — the same month he was given the AEC opinion — and began prosecuting cases and working on the draft bill the following month.

Marshall has publicly criticized the AEC on numerous occasions since he was investigated in 2018 for receiving nearly three-quarters-of-a-million dollars in illegal PAC-TO-PAC contributions from the Republican Attorneys General Association.

The AEC fell just one vote shy of recommending criminal charges against Marshall for those contributions.

Last March, Marshall accused AEC Director Tom Albritton of “self-dealing” in a civil lawsuit over the operation of the Mabel Amos Memorial Trust. In January 2022, he cleared two Montgomery Police officials of any wrongdoing after the AEC found both had violated the Ethics Act, alleging the investigation was mishandled, and stripped the commission’s then-general counsel Cynthia Raulston of her title which allowed her to represent the state in legal matters.

In November 2022, Marshall filed a lawsuit against the AEC which resulted in an amendment to the Ethics Law which would require the commission disclose exculpatory evidence being approved last year.

Simpson said there had been no quid pro quo exchanges between Marshall and himself in regard to this bill or otherwise. He said he did receive a letter from Marshall in December 2023 offering his thoughts on the AEC, but noted that he was one of several officials, including Albritton, to offer input.

Simpson’s bill would create a mechanism for the Attorney General to remove any commissioner or the AEC Director with a two-thirds vote from the Governor, Lieutenant Governor and Speaker of the House.

He admitted that giving elected officials authority over the lone agency charged with overseeing them was a fair critique, but felt the oversight was ultimately needed.

“That is a very valid point, but what I would say is the people that are elected, have to answer to the people. Right now, the Ethics Director has no one to answer to,” Simpson said.

The AEC said that this provision goes against its most basic function which is to hold lawmakers accountable to the people they represent.

“This bill would, in effect, make the Ethics Commission answerable to the Legislature, constitutional officers and the Attorney General, because they would direct the employment of the Director as well as the retention of the Commissioners themselves,” the AEC response said.

During a House Committee hearing on Tuesday, Simpson said he plans to file the bill by Thursday, Feb. 22.

Messages left with the Cullman, Limestone and St. Clair Counties district attorneys’ offices were not responded to by press time.

Messages left with the communications department of Attorney General Steve Marshall’s Office were not responded to by press time.

Gov. Kay Ivey’s office declined to comment until the bill was officially filed.