Ethically Speaking

Changes to the Alabama Ethics Act

Mark Boardman, Attorney, Boardman, Carr, Petelos, Watkins & Ogle P.C.

Act 2023-543, signed by the Governor on June 14, 2023, amended the Alabama Ethics Act. The amendments take effect this September. This year’s amendment provides that a public official or public employee who faces an Ethics Act complaint will now be given the name of the person who made the complaint, the complaint itself, and other information gathered by the Ethics Commission. The amendment also enhances whistleblower protection.

Under the original Ethics Act, the name and identity of the person who made the ethics complaint were kept confidential, even from the public official or public employee accused of violating the Act. The original rationale for this appears to be that keeping the identity of the complainant from the public official or public employee1 encouraged (or perhaps did not discourage) someone from making an ethics complaint. Although the Constitution’s Sixth Amendment provides an accused the right to confront their accuser, this type of “confidential informant” is not unusual in criminal prosecution. Think of “Crime Stoppers,” for example. If the prosecutor can establish a criminal case without the testimony of the complaining party, then the complaining party previously could be kept confidential in Ethics Act prosecutions. The legislators in this legislative session obviously felt that the interest of a public official or public employee in knowing the identity of the person making the Ethics complaint outweighs the need to keep confidential the identity of that person.

In addition, the new amendment requires that the Ethics Commission provide any information it obtains in its investigation to the accused before the accused decides whether to seek an administrative resolution or fight the charges made against him or her. Prior to this amendment, the Ethics Commission was not required to give the accused even exculpatory evidence. As you may know, a criminal prosecutor, however, is required to give full disclosure to the charged party. But since the Ethics Commission functions in the same manner as a grand jury, the Ethics Commission itself does not prosecute officials and employees accused of violating the Ethics Act. Instead, the Ethics Commission recommends the case to prosecutors. For this reason, the Ethics Act had to be amended by the Legislature.

The Ethics Commission is still prohibited from accepting verbal complaints, anonymous complaints, or unsigned complaints. Instead, the Commission investigates signed, written complaints. Apparently, in response to concerns that public employees would fail to report Ethics Act violations if their identity is no longer kept confidential, the Legislature also amended the whistleblower protection. The original Ethics Act contained whistleblower protection that a supervisor could not take action against a public employee if the public employee reported, in good faith, a possible violation of the Ethics Act. That whistleblower protection continues; the new amendment extended protection to cover any employee who assists or who speaks with an Ethics Commission investigator, as long as the government employee does not lie. In other words, if either the complaining party or a public employee speaks truthfully to an investigator about an alleged ethics violation, no governmental official can retaliate or take action against them. The Act has always contained a provision that says a public employee who lies to the Ethics Commission is subject to civil suit and being fired from his or her employment. Likewise, the Act has always held a provision that a public employee who willfully files a false claim against a supervisor shall be guilty of the crime of false reporting.

Complaints under the Ethics Act are easy to file with the Ethics Commission. The Ethics Commission website includes a place to “click” for an Ethics Commission complaint. On it, the complaining party lists his/her name, address, phone number, and employment address, along with naming the government official the complaining party accuses of violating the Ethics Act. The complaining party must set out in detail the specific charges. The complaining party then must swear or affirm that the information provided is accurate. The complaining party must agree to cooperate with the Ethics Commission in its investigation and testify if needed. The Ethics Commission tells complainants and requires complainants to acknowledge that if they fail to fully cooperate in the investigation, the complaint could be dismissed. The complaining party also acknowledges in writing that any information on the complaint form may be provided to the accused.

The Ethics Commission website (https:// ethics.alabama.gov) states where to send the completed form.

Although ethics complaints are easy to make, that does not mean that the Ethics Commission will find that the accused person has violated the Act. The Ethics Commission has three options for any complaint. The Commission can close the investigation because it either does not have jurisdiction or the complaint has expired. The second option is that the Ethics Commission can dismiss the charges based on a lack of evidence to support the complaint. The third option is the option that ends up reported by the press - - where the matter is presented to the Ethics Commission to determine whether there is probable cause to prosecute.

A concerned citizen can easily file an ethics complaint. But they may no longer do so anonymously.