Alabama issue has legal implications beyond state law

The disagreement between Alabama Attorney General Luther Strange and the state Ethics Commission isn't about an actual case, but it could have profound significance for a very prominent one. In fact, the issue has important implications for government ethics law in general.

Last month, state Rep. Patricia Todd, D-Birmingham, Alabama's only openly gay lawmaker, requested an advisory opinion from the ethics panel. Todd is employed as director of HRC (Human Rights Campaign) Alabama, an advocacy organization involved with, among other matters that its name connotes, gay and lesbian issues. Todd asked whether she could advocate for, and vote on, bills supported by HRC Alabama as long as there was no financial interest.

Ethics commissioners opined 4-1 that Todd could indeed "sponsor and vote on legislation affecting the LGBT community as her advocacy actions will be issue-based and will not provide any personal benefit to herself or her employer."

The attorney general and Scott Anderson, president of the Alabama District Attorneys Association, sent a letter asking the commission to reconsider the advisory because it blurs the distinction between "advocacy" and lobbying.

That's an important distinction; right now in Alabama, it is a critical one in the prosecution of House Speaker Mike Hubbard, R-Auburn, due to stand trial early next year on 23 felony ethics charges. Most of those charges involve allegations of using his legislative vote, and the power and influence of his office, to benefit his clients and his own businesses by lobbying other state officials.

Strange's and Anderson's letter said the Todd opinion was "fatally flawed" because it "practically permits an interest group to pay a legislator to lobby the legislature and state and local governments." Strange made a point of noting that his concern is about "larger ramifications" and not about gay and lesbian matters per se.

We'll take him at his word. In any case, the concerns he and Anderson raise are valid.

HRC Alabama is not just an advocacy organization whose causes Todd champions; it is also her employer. As such, the question of whether there is a "financial interest" becomes considerably more complicated.

Strictly as a lawmaker, Todd could advocate for, and vote on, any issue, including matters supported by HRC Alabama and those that might have direct personal impact, such as bills affecting the LGBT community, without any real conflict of interest. But with her employment by Human Rights Campaign this year, advocacy for -- and voting on -- that organization's political agenda gets very close to, and is perhaps indistinguishable from, lobbying.

Ethics Commission Director Tom Albritton said the agency will consider the AG's request: "We are always concerned," he said, "about getting the answer right." There is a lot riding on this one.

This story was originally published September 26, 2015 at 12:00 AM with the headline "Alabama issue has legal implications beyond state law."