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Did Gov. Ivey, State Board go against executive order in Superintendent hire?

By TODD STACY, Alabama Daily News

Last week, the State Board of Education voted to hire Dr. Eric Mackey as State Superintendent of Schools. For the last seven years, Mackey has worked as Executive Director of the School Superintendents of Alabama (SSA), a group advocating for the interests of local school leaders.

That experience affords Mackey perhaps his strongest asset for his new position: working relationships with lawmakers and the state’s 137 local superintendents.

It also makes him the dreaded “L” word: a lobbyist.

Lobbyists get picked on a lot in the public arena, sometimes fairly and sometimes unfairly. Most of the professionals who advocate on behalf of groups or companies for a living follow the laws and do the right thing. But, boy, the few that take shortcuts and get caught up in corruption schemes make the whole lot look and sound bad.

Lobbyists are also an easy target for politicians seeking a tough-on-corruption stance (I once called rival legislation the “no lobbyist left behind bill,” which was an effective line, but probably unfair).

Last year, Gov. Kay Ivey sought to take such a stand by issuing an executive order banning lobbyists from being appointed to any executive agency position. It wasn’t just posturing. Lobbyists serving on state boards and commissions was a problematic practice from the Bentley days that needed to be addressed. 

Executive Order No. 706 reads, in part: “…neither the Governor nor any other public official or public employee of the Executive Branch of State government under the Governor’s authority shall hereafter appoint a registered lobbyist to an Executive Agency, and any such appointment hereafter made is in violation of this Executive Order shall by deemed null and void.”

In explaining the reasons for the order, Ivey stated:

“The appointment of lobbyists to positions of authority in Executive Agencies raises conflicts of interests, both actual and perceived, and thereby undermines essential public trust and confidence in the integrity of government…”

So, did the State School Board’s vote to hire Mackey – a registered lobbyist – violate this order?

Ivey’s office says no. State Board of Education isn’t subject to that order, they say, and even so, the intent is to prevent lobbyists from actually serving on boards or in jobs where they could bring a conflict of interest. It’s the dual lobbyist and public official role that they are seeking to prevent, not someone changing one role for the other.

That makes sense. Registered lobbyists pursue career changes into government service all the time, and why shouldn’t a person who has been advocating on behalf of local school leaders for seven years be allowed to pursue the State Superintendent job?

Still, the wording of the executive order is pretty direct: “neither the Governor nor any other public official… shall appoint a registered lobbyist…”

Press Secretary Daniel Sparkman clarified that Mackey’s appointment “is not effective until a contract is executed and once that happens, he will no longer be a registered lobbyist.”

That’s true. Mackey told me his resignation process is underway, including de-registering as a lobbyist as soon as possible “so as to avoid any appearance of conflict.” He would have de-registered Monday, he said, but the Ethics Commission was closed for Confederate Memorial Day.

Interestingly, the order’s next paragraph probably speaks more closely to its true intent.

“Be it further ordered that no person appointed to and serving in a position within an Executive Agency under the Governor’s authority shall hereafter register or act as a lobbyist, except on behalf of the Executive Agency, and any such person who registers or acts as a lobbyist in violation of this Executive Order shall be deemed to have forfeited and vacated his or her position with the Executive Agency.”

That alone might have gotten the job done.

Mackey’s appointment does not seem to conflict with the spirit of Ivey’s lobbyist ban, and it certainly doesn’t violate any laws. However, the question itself could be a lesson in the unintended consequences of blanket bans in the name of being tough on corruption.

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