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Supernumerary status keeps Brooks from interim role at state bar

By MARY SELL, Alabama Daily News

The Alabama State Bar won’t immediately move forward with hiring former Montgomery District Attorney Ellen Brooks as its interim leader as planned, the organization said Thursday, citing concerns about her supernumerary status.

Alabama Daily News originally reported that the bar had a proposed contract with Brooks for the first six months of the year while it sought a permanent leader.

In October, executive director Phillip McCallum resigned after three years on the job. According to multiple sources, McCallum was the subject of 17 allegations of violating the state’s Ethics Code. Though the specifics of the allegations are not public, sources indicated they were mostly minor in nature, which led McCallum to accepting a deal to resign rather than face prosecution.

Alabama Ethics Commission Executive Director Tom Albritton confirmed that the commission approved several administrative resolutions of complaints against McCallum at its December meeting. The resolutions and complaints were referred to the Alabama Attorney General for approval. Details of the resolutions were not available.

Brooks and the bar had a proposed six-month contract worth $115,500, according to the agenda of the Legislative Contract Review Committee. But at the committee’s meeting Thursday afternoon, a representative from the bar said they were pulling the contract.

Later, bar spokeswoman Melissa Warnke told Alabama Daily News the contract wouldn’t immediately go forward because of Brooks’ supernumerary status and concerns whether it is legal for her to remain in that role and also be paid as the bar’s interim executive director.

“For now, our four-person Management Team remains in place until a decision can be made, but as you know, the earliest she can contractually start now, is after the Feb. Review Board meeting,” Warnke said in an email.

Supernumerary district attorneys are retirees who can be called back into service at any time by the governor or attorney general to handle a case or group of cases that either are unusual or the current prosecutor can’t do. Meanwhile, the supernumerary can’t go into private practice.

In 2012, The Decatur Daily reported about four dozen former district attorneys each were receiving about $112,000 a year from the state. This year’s General Fund budget allocates about $5.3 million to supernumerary DAs. 

Former employees drawing retirement are allowed to work for government agencies, but their earnings are capped at about $23,000 a year.

Legislative Contract Review Committee member Sen. Arthur Orr, R-Decatur, said he was surprised to see the proposed above-cap contract and glad to see it nixed. 

Orr has previously been vocal about concerns of retirees “double dipping” by drawing retirement and continuing to work for the state as private contractors.

He said lawmakers need to be vigilant in watching for retirees trying to “game the system.”

“There are a lot of people abiding by the rules, but seeing some people trying to get around the rules gives me great concern,” Orr said.

Brooks was the Montgomery County DA for more than 20 years until her retirement in 2014. It was in her supernumerary role that Brooks was tapped in 2017 by Alabama Attorney General Steve Marshall to investigate then Gov. Robert Bentley. 

The state bar is advertising the executive director job on its website. The bar is the regulatory authority for the legal profession in Alabama and has more than 18,000 attorney members and about 35 employees, according to the site.

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