In an interview with WABF 1480 AM radio on July 9, Fairhope City Councilman Kevin Boone said he had turned over evidence to the Baldwin County District Attorney’s office that he believed proved Mayor Karin Wilson had violated state law.
The alleged violation of the law may have occurred when Wilson circulated and endorsed an petition that would have allowed a public vote to change Fairhope’s form of government to a council-manager system that called for the establishment of council districts.
Wilson posted her endorsement of the petition on her official Facebook page and blog, and said copies of the version of the petition she supported would be available at several city owned properties.
“Your friends and neighbors will be circulating the petitions, and copies will also be available at the library, Quail Creek clubhouse and City Hall,” Wilson wrote on June 21.
Wilson also used the city’s Everbridge communication system, the city’s official notification system used to push out information on severe weather and other emergency information, to push out her blog post endorsing the petition. According to the city’s website, the Everbridge system “enables city officials to provide critical information quickly in situations such as severe weather, unexpected road closures, missing persons and area events. Residents who sign up can also select notifications for trash, garbage and recycling changes; meeting notices; traffic conditions, crime alerts, utility outages and more.”
Boone said he had submitted what he believed to be evidence of the violation to District Attorney Bob Wilters.
“The paperwork has been sent in to the proper authorities to do an investigation,” Boone said. “Whether or not it’s going to be done, I don’t know.”
Boone told WABF that he had taken the actions on as a concerned citizen.
“I did this not so much as a councilman, but as Kevin Boone,” he said, emphasizing he was not representing the council in taking this action.
Several sections of Alabama Code might apply to the use of government resources and use of political office that Boone has accused Wilson of violating.
According to the Alabama Code Title 17, which helps govern elections law, according to 17-17-4, “Any person who attempts to use his or her official authority or position for the purpose of influencing the vote or political action of any person shall be guilty, upon conviction, of a Class C felony.” Class C felonies in Alabama carry a sentence of up to 10 years in state prison.
Section 17-17-5 goes further:
“No person in the employment of the State of Alabama, a county, a city, a local school board, or any other governmental agency, whether classified or unclassified, shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities.”
According to the subsection, political activities include:
“a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.
“b. Engaging in or paying for public opinion polling.
“c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.
“d. Engaging in or paying for any type of political advertising in any medium.
“e. Phone calling for any political purpose.
“f. Distributing political literature of any type.
“g. Providing any type of in-kind help or support to or for a political candidate.”
17-17-5 goes on to state that “It shall also be unlawful for any officer or employee to coerce or attempt to coerce any subordinate employee to work in any capacity in any political campaign or cause.”
Mayor Wilson’s response
Wilson responded to The Courier on a Facebook post on the Gulf Coast Media Facebook page in the early afternoon of July 11, saying:
“A student with the high school newspaper would do more ‘investigative’ reporting than Cliff before going live with an article. He emailed me last night at 7:22pm for a response on this article he posted at 7:18pm! It's his typical slanted fake news to discredit the City of Fairhope and all its fine citizens.
“Supporting a referendum for a vote by a legislative body or by voters is NOT considered a ‘political activity.’ Regardless, there were no public funds used nor the improper use of public property. (AG Opinion below)
“Cliff, why don’t you report on positive “factual” stories? Like the most recent report on our City Financial Update?”
In a follow up email to the Courier later that afternoon, Wilson added the following to her comments:
“Citizens are tired of your bias (sic) reporting,” Wilson wrote. “I hate that the Courier’s longstanding good reputation as a community newspaper has turned into a platform for negative PR for our City. No wonder so many tell me they don’t read it anymore.”
Wilson attached a 2003 Alabama Attorney General’s Opinion involving whether public school systems and colleges could expend public funds to advocate on behalf of ballot initiatives and a 2015 circuit court ruling involving the Baldwin County Board of Education’s advocacy for the Build Baldwin Now campaign.
In the 2003 AG opinion, then Attorney General Bill Pryor cited a 1996 AG opinion involving then Gov. Fob James asking if “he and his staff could educate the voters by telephone and mail about three constitutional amendments concerning court reform that were to be on the ballot and encourage them to vote to ratify the amendments.”
Pryor’s opinion said the state law did not prohibit such activity in that circumstance.
“This section does not prohibit, however, the Governor, other public officials, or employees from promoting to the voters constitutional amendments on the ballot that the Governor or other public officials determine to be beneficial to the State,” Pryor wrote. “This form of voter lobbying is legally permissible.”
Pryor also wrote that the 1970 case of Hudson vs. Gray further defines the idea of “political activity.”
“The Alabama Supreme Court has held that ‘political activity’ does not include petitioning for the passage of an ordinance,” Pryor wrote.
The Hudson case involved city employees circulating a petition to the city seeking passage of an ordinance by the city or the calling of an election by the city for that purpose.
“The Court held that ‘circulating and filing the petition as a condition precedent to engaging the power of initiative action is not to be construed as political activity or taking part in a political campaign under the civil service law,’” Pryor wrote.
Pryor also gives his opinion that forbidding use of state property for political purposes did not apply to propositions.
“Although the title of the article refers to ‘political purposes,’ the actual prohibitions in the article are against using state property for campaign involving candidates, not ballot propositions,” Pryor wrote.
In the 2015 circuit court case involving the Baldwin County Board of Education, Judge Greg Griffin used similar arguments to dismiss a lawsuit against the BCBE and Attorney General Luther Strange brought by State Auditor Jim Ziegler.
The case involved the BCBE using taxpayer funds to promote an election for the Build Baldwin Now campaign, which would have increased the tax millage rate across Baldwin County to increase funding for the county’s schools.
Griffin said a broad definition of “political activity” was not appropriate in this situation.
“If the statute is interpreted so broadly, ordinary governmental functions would be barred,” Griffin wrote. “If political activity includes all issue advocacy, then the Governor could not propose a tax increase or tax decrease to the Legislature and urge its approval, the Attorney General could not propose and support a crime bill, the Secretary of State could not propose and support changes to the State's voting laws: All these common events would be barred under Plaintiffs' expansive reading of the statute. A court should avoid a literal interpretation of a statute if doing so would lead to an absurd result.”
Griffin’s further said he agrees with the premise of Pryor’s 2003 opinion.
“The analysis of these Attorney General's opinions is sound. It makes far more sense to conclude that the Legislature was aiming at partisan politics, not the routine functions of government, when prohibiting the use of public funds for certain activities,” Griffin wrote. “Other courts and the federal government have reached the same conclusion when interpreting similar provisions. And even if the statute could be construed to reach some issue advocacy, it should not be interpreted to prohibit issue advocacy of the type presented in this case, advocacy in favor of a non-ideological tax referendum that is part of the core business of the agency in question (the Baldwin County Board of Education determining what is in the best interests of the Baldwin County Schools it supervises, and then advocating for that result).”
This story will be further updated as it develops.