4/1/2008 - April 2008 SLI Educational Update - Double Dipping Alabama Style
AN EDUCATIONAL UPDATE FROM
THE SOUTHEAST LAW INSTITUTETM, INC.
To: SLI Supporters
Date: April 2008
From: A. Eric Johnston
Re: Double Dipping Alabama Style
On October 8, 2006 The Birmingham News reported that dozens of legislators are employed by two year colleges. In addition to the two year college employees, there are numerous other legislators employed in Alabama public schools. For two years this has been a political issue. It has been a legal issue for much longer than that.
This month, we wish to give a brief explanation of double dipping and the significance it has to law and politics in the State of Alabama. As we consider the issue, we must understand that it has nothing to do with individual legislator/employees. We have many fine friends who serve in these capacities. However, we must understand this is a matter of principle and control.
In August 2001, we were contacted about the possibility of a lawsuit attacking double dipping. The lawsuit would specifically be aimed at legislators in the Alabama Legislature who were also employed in the public school systems of Alabama. We did significant research at that time and even met with gubernatorial candidate Bob Riley. We advised Congressman Riley and others of the likely success of a lawsuit to stop double dipping. We all realized the significance of this dual capacity and its impact on the laws and public policies of the State of Alabama.
Our consideration of the issue was not the first time it had been seriously addressed. In fact, there was a lawsuit in 1998 in the Circuit Court of Montgomery County, Alabama, in which Judge Gene Reese ruled that Alabama law did not prohibit this dual employment. That lawsuit was based primarily on Article XVII, Section 280, 1901 Constitution of Alabama which states:
"No person holding an office of profit under the United States, except postmasters, whose annual salaries do not exceed $200, shall during his continuance in such office, hold any office of profit under this state; nor, unless otherwise provided in this constitution, shall any person hold two offices of profit at one in the same time under this state, except justices of the peace, constables, notaries public, and commissioner of deeds."
This prohibition seems rather clear. So, Judge Reese's ruling was appealed. However, in one of those curious twists of political nature, the Alabama Supreme Court merely affirmed Judge Reese's judgment with "NO OPINION." That was the end of that case. It is questionable whether that decision is res judicata, meaning the issue cannot be re-litigated. With no written opinion, it leaves in doubt the validity of a mere trial court opinion. We believe it was flawed.
Unfortunately, there was not sufficient interest in bringing the lawsuit in 2001. Whatever interest there was may have been quelled by misdirected zeal or greed. In any event, about seven years later, the problem still exists and has become one more political, than legal.
The appointment of Bradley Byrne as Chancellor of the two year college system has been a significant improvement in the administration of the system. Policies enacted during this tenure will result in legislators not being able to have the college jobs. A lawsuit financed by the Alabama Education Association ("AEA") has been filed challenging Byrne's policy.
Vested interests have also introduced legislation, HB 541 and SB 292, which would bring regulation of the two year community colleges under the Alabama Administrative Procedures Act. The net effect of this would be to reduce the authority of Chancellor Byrne and the State Board of Education over the two year college system. It would also result in perpetuation of the double dipping practice. You may recall news reports when HB 541 was voted out of the House Education Committee by a voice vote on February 27, despite requests from committee members to have a roll call vote. We believe it is unlikely the bill will pass.
However, this struggle will continue. AEA Executive Director Dr. Paul Hubbert has said this is "nothing more than a legislative power grab by Governor Riley, who is willing to pervert the language in the Constitution and override the vote of the people in certain districts so that he can shift the balance of power in the Legislature more to his liking." We do not see it as a power grab. We see it as an effort to remove undue power that is concentrated in legislator/public employees. Specifically, this is what empowers Dr. Hubbert, without doubt, the most powerful lobbyist in the state.
Whether the double dipping is stopped through a lawsuit or through legislative efforts, it is something that must be done. It has nothing to do with removing a class of persons from public office. It has to do with balancing out the authority of government and keeping a proper separation of powers. This abuse is a custom, and nothing more, that has become ingrained in Alabama politics. The law should be observed and the double dipping stopped.
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