MONTGOMERY, Ala. — A report commissioned by the Alabama Legislature has found “significant overbreadth concerns” in the state’s ethics law, including “structural vulnerabilities” that could enable discriminatory enforcement, with state lawmakers recommended to enact sweeping reforms as a fix.
“We went through definition by definition, provision by provision on what we thought were the major recommendations we would make,” said James Bopp of The Bopp Law Firm, the firm hired by the state to conduct the report.
In the 264 page report, the firm found provisions that raised “serious First Amendment concerns” regarding secrecy agreements amid ethics complaints, vagueness and due process concerns, and breadth of issues in who the ethics law applies to.
Bopp told Alabama Daily News he analyzed all provisions of Alabama’s ethics law analyzed for their compatibility with the U.S. Constitution, their adherence with basic principles of law as adopted by the American Law Institute regarding government ethics, and in comparison with other states. And in doing so, he said, among the first issues he and his firm identified was the scope of who ethics law applied to.
“One of my major findings is how tremendously broad the ethics law is in terms of the categories of people that they apply to, what requirements they may impose upon them, and whether or not those can be defended constitutionally,” Bopp said. “They vary so tremendously in terms of what their jobs are and whether or not they have any discretionary government authority.
The state ethics law, which includes legal restrictions on things like giving and receiving gifts, applies to Alabama’s well over 300,000 state and local elected officials and employees, including teachers, firefighters and janitors, as well as their families.
Reforming the state’s ethics law was a major priority last year for Rep. Matt Simpson, R-Daphne, who aggressively pushed a bill that would have introduced some significant reforms, including limiting the scope of who ethics law applied to. The bill ultimately failed to pass, however, and Simpson told ADN Monday that he was not prepared to comment on the findings in the new report.
In the final days of the 2024 legislative session, however, the Legislature did adopt a joint resolution that instructed the state to hire an independent expert to study the state’s ethics law and produce a report on its findings.
Othni Lathram, executive director of the Legislative Services Agency, selected Bopp for the job.
“I think it was important, given our history on this topic over the last decade, to have an outside voice,” Lathram told ADN. Besides Simpson’s effort last year, there was a 2018 legislative study commission on the issue, though no action was taken following its work. And the Alabama Supreme Court and Alabama Court of Criminal Appeals have both suggested in recent years changes to the ethics laws.
Bopp’s resume includes presenting testimony before Congress or federal agencies 45 times and participating in 68 cases before the U.S. Supreme Court. He’s a past president of the Republican National Lawyers Association.
His contract with the state to produce the report was for up to $150,000.
In the report’s recommendations, the law firm suggests narrowing the definitions of public officials and employees, clarifying language in lobbying and ethics provisions, and providing clearer enforcement standards to prevent selective application of ethics laws, among other things. In conclusion, however, the report includes a recommendation that the state “start afresh with a new and modern ethics code,” described as the “preferable approach.”
“That’s what I’m reporting about, how they can fashion a statute that is both justified in its scope and requirements, and on the other hand, people can readily know by just looking at the statute what they can do and not do,” Bopp said.