MEMORANDUM

We are gravely concerned that Opinion 2015-14 fails to uphold the

principles of impartiality and independence enshrined in the Ethics Act. See Ala.
Code 36-25-2. Key portions of the opinion also flatly contradict the plain
language of the law, such as the opinions bizarre conclusion that someone
styled a Director is not a director under the law. This memorandum explains
in detail our concerns with the opinion.
I. Rep. Todds salary is a thing of value from a principal.
One of the most important problems with Opinion 2015-14 is that it
ignores the prohibition against a legislator accepting a thing of value from a
principal. HRC Alabamas arrangement with Rep. Todd clearly violates Ala.
Code 36-25-5.1(a), which provides: No lobbyist, subordinate of a lobbyist, or
principal shall offer or provide a thing of value to a public employee or public
official . . . and no public employee or public official . . . shall solicit or receive
a thing of value from a lobbyist, subordinate of a lobbyist, or principal.
There is no dispute that HRC Alabama is a principal and that Rep. Todd
is a public official. A principal is a person or business which employs, hires,
or otherwise retains a lobbyist and is not allowed to give a thing of value.
Ala. Code 36-25-1(24). The Ethics Commissions registry of lobbyists reflects
that Edward A. Hosp is a registered lobbyist, and he represents HRC Alabama.
See Op. 3. A thing of value may include a paycheck or promise of future
paychecks. See Ala. Code 36-25-1(34)(a) (defining thing of value to include
promise of future employment); Ethics Commission Advisory Op. 2015-11
(The financial reward of a job would be personal gain.). By accepting
paychecks from HRC Alabama, a principal, Rep. Todd would be violating the
plain language of Ala. Code 36-25-5.1(a).
Rep. Todds proposed arrangement 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 recipients 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.
First, although HRC Alabama says that Rep. Todds job description does
not include her legislative duties, there is in fact substantial overlap between her
duties as a legislator and her proposed duties as a director. According to
Opinion 2015-14, Rep. Todd as a legislator plans to introduce legislation that is
supported and in many cases drafted and advocated for by HRC Alabama;
seek[] the votes of other members of the House and Senate in support of such

legislation; speak in favor of this legislation publicly, in committees and on

the floor of the House of Representatives; work[] against legislation that she
views as harmful to the LGBT community and undertake all of the above
activity (seeking votes, speaking out and voting) with regard to such
legislation. Op. 4. And as HRC Alabamas Director, she will manage and
supervise HRCs staff, which would presumably draft the legislation that she
may introduce or support as a legislator; engage in educational work about the
issues she will address as a legislator; seek contributions i.e. fundraise
from private parties in Alabama; serve as the spokesperson for the group on
issues affecting the LGBT community, such as the legislation she will introduce
and support; and seek local ordinances and resolutions that support and protect
the rights of members of the LGBT community from county and municipal
governments. Op. 45.
Second, HRC Alabama itself seems to believe that Rep. Todds role as a
legislator is connected to her role with HRC Alabama. The circumstances here
include HRC Alabama touting Rep. Todds position as both Representative and
Director on its website and blog. See The HRC Story, HRC Alabama State
Director Patricia Todd, available at http://www.hrc.org/staff/profile/patriciatodd (Patricia was elected to the Alabama Legislature as the State
Representative for House District 54 in November of 2006 as the first openly
gay elected official in Alabamas history.); HRC Staff, Celebrating Alabama
Pride with Rep. Patricia Todd, HRC Blog Jun. 10, 2015 (available at
http://www.hrc.org/blog/entry/celebrating-alabama-pride-with-rep.-patriciatodd ).
Third, the exception for [c]ompensation and other benefits must be
narrowly construed to give a field of operation to the revolving door act. See
Ala. Code 36-25-13. The law contemplates that legislators must wait two years
after leaving office before they can be employed by a principal in a publicpolicy capacity. Id. But Rep. Todd proposes to do the same thing while
remaining in the Legislature. If the law allows a principal to hire a sitting
legislator to serve as a public policy advisor, then the revolving door act is a
dead letter. That is why the law requires that circumstances make it clear that
any payments are unrelated to legislative activities.
In short, the circumstances here do not make it clear that Rep. Todds
job is unrelated to her role in the Legislature.
The exception for
[c]ompensation and other benefits applies to legislators who work for
businesses where there is a clear demarcation between legislative work and
private work. For example, a legislator can sell cars at a Ford dealership, even
if Ford is a principal. But that is not the case here. If anything, the facts here
indicate that Rep. Todd was offered the position as Director, in part, because of
her public service. The Ethics law does not allow a principal to pay a legislator
under these circumstances.
II. Opinion 2015-14 is inconsistent with the Ethics Laws.

The Opinion is also inconsistent with the Ethics Laws in other ways as
well. HRC Alabama and Rep. Todd asked the Commission to address three
questions:
(1) Is it a conflict of interest for Rep. Todd to advocate for the
Lesbian, Gay, Bisexual, and Transgender (LGBT) community and
sponsor and vote on legislation affecting the LGBT community
while serving as the Director of HRC Alabama?
(2) Is it a conflict of interest for Rep. Todd to advocate for the
LGBT community while dealing with county and municipal
governments?
(3) May Rep. Todd, who serves as the Director of HRC Alabama, be
involved in fundraising activities on behalf of her employer?
The Opinions answers to the first two questions are clearly wrong. When the
first two questions are answered correctly, the last question becomes irrelevant.
1. Rep. Todds proposed activities in the Legislature as Director of HRC
present a conflict of interest.
As the Commission concluded, HRC Alabama is a business under the
Ethics Law. Ala. Code 36-25-1(1) (defining business as [a]ny corporation,
partnership,
proprietorship,
firm,
enterprise,
franchise,
association,
organization, self-employed individual, or any other legal entity). And Rep.
Todd is associated with it, as the director. Id. 36-25-1(2) (Any business of
which the person or a member of his or her family is an officer, owner, partner,
board of director member, employee, or holder of more than five percent of the
fair market value of the business.).
The Ethics Laws define conflict of interest in the following ways: A
conflict on the part of a public official or public employee between his or her
private interests and the official responsibilities inherent in an office of public
trust. A conflict of interest involves any action, inaction, or decision by a public
official or public employee in the discharge of his or her official duties which
would materially affect his or her financial interest or those of his or her family
members or any business with which the person is associated in a manner
different from the manner it affects the other members of the class to which he
or she belongs, Ala. Code 36-25-1(8); A conflict of interest shall exist when
a member of a legislative body, public official, or public employee has a
substantial financial interest by reason of ownership of, control of, or the
exercise of power over any interest greater than five percent of the value of any
corporation, company, association, or firm, partnership, proprietorship, or any

other business entity of any kind or character which is uniquely affected by

proposed or pending legislation; or who is an officer or director for any such
corporation, company, association, or firm, partnership, proprietorship, or any
other business entity of any kind or character which is uniquely affected by
proposed or pending legislation. Ala. Code 36-25-5(f).
a. Rep. Todd is a director of HRC Alabama.
Rep. Todds proposed job title is Director of HRC Alabama. But,
somehow, the Opinion concludes that Rep. Todd is not an officer, director, or
the owner of more than 5% of HRC Alabama. Op. 6 (emphasis added). Rep.
Todd receives a paycheck from HRC, giving her a financial interest in its
existence. And given her title (Director) and job responsibilities (which include
directing the staff and operations, as well as raising money), it is Orwellian
doublespeak to say that Rep. Todd is not a director or officer of HRC Alabama.
Because Rep. Todd is literally the director of HRC Alabama, she fits squarely
within the provisions of Ala. Code 36-25-5(f), which provides: A conflict of
interest shall exist when a member of a legislative body . . . is an officer or
director for any such corporation, company, association, or firm, partnership,
proprietorship, or any other business entity of any kind or character which is
uniquely affected by proposed or pending legislation.
b. HRCs paying Rep. Todd creates a conflict of interest with her legislative
duties.
The Opinion states that Rep. Todd will not lobby state officials as a part
of her job function as HRC Alabama Director and that her advocacy will be
designed to benefit the LGBT community at large and not HRC Alabama or
Patricia Todd as an individual. Op. 4, 11. But the Opinion also describes her
intent to introduce legislation that is supported and in many cases drafted and
advocated for by HRC, seek[] the votes of other members of the House and
Senate in support of such legislation, speak in favor of this legislation
publicly, and work[] against legislation that she views as harmful to the LGBT
community. Op. 4.
Although HRC has defined Rep. Todds duties to exclude her legislative
activities, there are two problems with this approach. First, it ignores the fact
that Rep. Todd will be paid by an entity whose legislation she will be
supporting. See Ala. Code 36-25-7(d) (No public official or public
employee[] shall solicit or receive any money in addition to that received by the
public official or public employee in an official capacity for advice or assistance
on matters concerning the Legislature, lobbying a legislative body, an executive
body, an executive department or any public regulatory board, commission, or
other body of which he or she is a member.). It is no answer to say that she
agrees with the positions of this entity. For example, her paycheck could

influence her to support HRC Alabamas legislation over another LGBT

organizations legislation, or another legislators pro-LGBT proposal. If nothing
else, Rep. Todds actions uniquely affect HRC because it can say that she uses
its draft legislation above anyone elses and serves as Director.
Second, the Ethics Laws were created to draw lines between a legislator s
private interests and his or her public office to ensure that public officials be
independent and impartial and that there be public confidence in the integrity
of government. Ala. Code 36-25-2(a)(1) & (4). Although Alabama employs
citizen legislators, these legislators cannot maintain private economic and
other interests if conflicts with the responsibility of the public officials and
public employees to the public cannot be avoided. Id. 36-25-2(b). And the
Ethics Laws must be liberally construed to promote complete disclosure of all
relevant information and to insure that the public interest is fully protected.
Id. 36-25-2(c). The people of Alabama expect their legislators to decline
positions that prevent them from legislating fairly and impartially, and the
Ethics Law enforces this expectation. For the same reason, state employees
cannot be legislators. Ala. Code 29-1-26.
Finally, Opinion of the Justices 317 does not support HRCs arguments.
That opinion interpreted Section 82 of the Alabama Constitution, which
provides: A member of the legislature who has a personal or private interest in
any measure or bill proposed or pending before the legislature, shall disclose the
fact to the house of which he is a member, and shall not vote thereon. Ala.
Const. Art. IV, 82. And the question before the Court was whether a teacher
could vote on a pay raise for all teachers throughout the state. The Court
concluded that the teacher could vote, at least so long as the bill does not affect
the legislator in a way different from the way it affects the other members of the
class to which he belongs. Opinion of the Justices No. 317, 474 So. 2d 700, 704
(Ala. 1985). But the Court declined to consider whether voting on such
legislation would violate Ala. Code 36-25-5, and in any event, that provision
has been amended since the opinion issued. Id. And that particular situation
would not arise again, as state employees, including teachers, are no longer
permitted to be legislators. Ala. Code 29-1-26. Furthermore, Rep. Todds
situation is not analogous to the teacher whose salary would increase along with
all other teachers salaries: a nonprofit is uniquely affected when its legislation
is shepherded through the legislature by its Director, who is also a legislator.
Put another way, the Court did not consider whether a legislator paid by the
Alabama Education Association could vote on legislation that the Alabama
Education Association drafted and supported.
*

Opinion 2015-14 blurs ethical lines by permitting Rep. Todd to accept

payment from HRC Alabama while continuing to vote and advocate for its issue-

based legislation. If HRC Alabama can hire and pay Rep. Todd to be its
director, then a pro-business group can pay a pro-business legislator who agrees
with the groups mission; a pro-life group can pay a pro-life legislator who
agrees with the groups mission; a professional association can hire a legislator
who agrees with the associations mission. Any interest group can staff its
organization with legislators who agree with its policy positions, define the
legislators job duties to exclude lobbying the Legislature or require issuebased advocacy, and skirt the Ethics Laws. As the opinion states, [t]he reality
is that Representative Todd cannot ignore the fact that those with whom she
deals will see her as an official regardless of what hat she is wearing. Op. 12.
The right conclusion from that recognized problem is that Rep. Todd has a
conflict of interest in serving as the Director of HRC and in the Legislature at
the same time.
2. Rep. Todds job duties reveal that she is employed as a lobbyist.
HRCs employment of Rep. Todd also runs afoul of lobbying prohibitions
because of the job requirement that she lobby local governments. As discussed
above, HRC is a principal because it employs, hires, or otherwise retains a
lobbyist. Ala. Code 36-25-1(24). Edward A. Hosp has registered with the
Commission as a lobbyist, listing HRC as one of his clients.
Lobbying is the practice of promoting, opposing, or in any manner
influencing or attempting to influence the introduction, defeat, or enactment of
legislation before any legislative body; opposing or in any manner influencing
the executive approval, veto, or amendment of legislation; or the practice of
promoting, opposing, or in any manner influencing or attempting to influence
the enactment, promulgation, modification, or deletion of regulations before any
regulatory body. Ala. Code 36-25-1(20). The term legislative body includes
the Legislature, [a] county commission, and any committee or subcommittee
thereof, and [a] city council, city commission, town council, or other
municipal council or commission, and any committee or subcommittee thereof.
Ala. Code 36-25-1(19). And a person is a lobbyist if, among other things, he
or she receives compensation or reimbursement from another person, group, or
entity to lobby.
The Ethics Law provides: No public official elected to a term of office
shall serve for a fee as a lobbyist or otherwise represent a client , including
his or her employer, before any legislative body or any branch of state or local
government, including the executive and judicial branches of government, and
including the Legislature of Alabama or any board, agency, commission, or
department thereof, during the term or remainder of the term for which the
official was elected . Ala. Code 36-25-23(a)(emphasis added). And [n]o
member of the Legislature, for a fee, reward, or other compensation, in addition
to that received in his or her official capacity, shall represent any person, firm,

corporation, or other business entity before an executive department or agency.

Ala. Code 36-25-1.1.
Rep. Todds job duties, which she is paid to perform, expressly include
seek[ing] local ordinances and resolutions that support and protect the rights of
members of the LGBT community from county and municipal government. Op.
5. The opinion includes a reminder that Rep. Todd cannot represent[] the
interests of her employer, as distinguished from the broad issues they advocate
on behalf of the LGBT community, before any branch of state or local
government while she is an elected official and consistent with the revolving
door provisions and our formal opinions. Op. 14. But this is a distinction
without a difference. Ala. Code 36-25-23 is meaningless if furthering the
interests of an employer is permissible as long as other interest groups have
similar interests . The Ethics Laws have no special interest or issue lobbying
exception.
3. Rep. Todd cannot be the Director of HRC Alabama and raise money for
HRC Alabama at the same time.
The Ethics Laws prohibit any legislator from us[ing] or caus[ing] to be
used his or her official position or office to obtain personal gain for himself or
herself . . . or any business with which the person is associated unless the use
and gain are specifically authorized by law. Ala. Code 36-25-5(a). And
legislators cannot solicit things of value from principals or anything at all from
lobbyists. Ala. Code 36-25-5.1, 23(c).
If Rep. Todd were not the director of HRC Alabama, then she could
almost certainly raise money for the organization without improperly using her
official position. But, as the Opinion notes, if she serves as the director of
HRC Alabama, it would be difficult, if not impossible, for Representative Todd
to separate her position in the House from her position with HRC Alabama to the
individuals and entities solicited and she cannot control how the people or
entities being solicited view her. Op. 12. We agree. That problem is yet one
more reason that Rep. Todd cannot serve as the director of HRC Alabama at the
same time she is a legislator.