The former executive director of the Alabama Ethics Commission said the loss of anonymity protection for people who file ethics complaints will result in fewer whistleblowers reporting what they believe are illegal acts.

SB103 by Sen. Arthur Orr, R-Decatur, will require the Ethics Commission to tell a person under investigation who filed the complaint that sparked the probe. Legislators said public officials should know the identity of their accuser in an ethics investigation, just as they would in a criminal or civil trial.

Jim Sumner, who was executive director for 17 years before retiring in 2014, said the commission has always protected the identity of whistleblowers. The Ethics Commission investigates alleged violations of the ethics law and campaign finance law. If the five-member commission votes that it has found probable cause, it forwards the case to the state attorney general or a district attorney for possible prosecution. The purpose of the ethics law is to prohibit elected officials, public officials, and public employees from using their positions for personal gain.

“It is a bold move for an employee to step forward and file a complaint against somebody that they work for in a small municipality or a rural county or a state agency, against their boss, against their supervisor,” Sumner said. “I think with this now being changed in the statute, a lot of people who did feel comfortable making those bold moves, knowing that they would be protected, now will not do that. So I can’t help but think that the numbers will go down and unethical behavior will go unreported.”

The ethics law includes a section to prohibit retaliation against whistleblowers. It says a supervisor “shall not discharge, demote, transfer, or otherwise discriminate against a public employee” for reporting a violation or truthfully testifying. It says a supervisor who violates that would be subject to a lawsuit in state court.

Lawmakers said SB103 strengthened the whistleblower protections to offset concerns about disclosing their identity. But Sumner said that change was not substantive and said he does not think the whistleblower protection will prevent the chilling effect of the new law.

The House and Senate passed SB103 on June 6, the last day of the legislative session. Gov. Kay Ivey signed it into law.

Tom Albritton, Sumner’s successor and the current executive director, declined to comment on the legislation.

Orr said legislators told him stories about baseless ethics complaints.

“They indicated that they were familiar with certain accusations where people would just kind of sit in the shadows and make stuff up or come up with flimsy accusations and run an accused through the wringer while the accuser is able just to stay anonymous,” Orr said.

“If somebody is going to make some allegations, they need to own it,” Orr said. “And if they believe their allegations are firmly rooted in fact and knowledge that they have first-hand, then I would want them to come forward. But what do they have to be embarrassed about or anything else if their allegations are based on fact?”

Sen. Vivian Davis Figures, D-Mobile, called for adding the name disclosure requirement to SB103 at a committee meeting. Figures said the idea came up during an ethics orientation meeting for the Legislature in January. She said there was broad support among lawmakers that the accused should know who filed a complaint.

“It’s almost like throwing the rock and hiding your hand,” Figures said. “You want to call somebody out but then you don’t want to face up to it that you were the one that filed the complaint. So if it’s justly done and you have nothing to hide, then file the complaint. It’s not to keep anybody from filing the complaint. Because if we’re wrong, we’re wrong, you can’t get around that. But we should at least know who filed the complaint.”

SB103 passed the Senate and the House without a dissenting vote. It takes effect in September.

The Ethics Commission investigates signed, written complaints. The staff conducts a preliminary investigation to determine if reasonable cause exists to conduct a full investigation or if the complaint should be dismissed. The law prohibits the commission from making complaints public until they are disposed. Sumner said he cannot remember the commission ever disclosing the name of a complainant, although some people who file complaints do make that public. Under Orr’s bill, the commission won’t make the name of the complainant public, but will inform the person accused.

Orr’s bill made another substantive change in the ethics law. It requires the commission to provide the person under investigation “any statement, evidence, or information received from the complainant, witnesses, or other individuals or discovered in the course of the investigation.”

That can include exculpatory information, or information favorable to the defense. Defendants in criminal cases are entitled to exculpatory evidence, called Brady material because of a 1963 Supreme Court decision.

Sumner favored the portion of the bill requiring the sharing of exculpatory evidence and said that was the standard policy when he was director. The commission changed that policy under Albritton and voted 4-0 last year to adopt an advisory opinion that the commission was not required or permitted to disclose exculpatory information.

Attorney General Steve Marshall opposed the change and filed a lawsuit against the commission last year. Marshall said the practice of not sharing evidence favorable to the accused tainted the cases forwarded by the Ethics Commission to his office and undermined what was intended to be collaboration with the commission on enforcing the ethics law.

The Ethics Commission disputed Marshall’s characterization of its policy. In a motion to dismiss the lawsuit, the commission noted that it is similar to a grand jury in that it does not determine guilt or innocence but probable cause. The commission is bound by some of the same secrecy restrictions as grand juries. And the commission said all the information in a case, including exculpatory evidence, is turned over to the AG’s office or district attorneys to consider as they decide how to handle a case.

Rep. Cynthia Almond, R-Tuscaloosa, who sponsored SB103 in the House, said one difference between the Ethics Commission and grand juries that makes the sharing of exculpatory evidence important is that the commission resolves many cases — minor violations of the ethics act — with administrative penalties. The person accused can agree to an administrative penalty, pay a fine, and avoid any potential criminal prosecution. Administrative penalties must be unanimously approved by the five-member Ethics Commission and by the attorney general or a district attorney.

In November 2021, Marshall rejected proposed administrative resolutions in two cases sent over by the Ethics Commission because the commission had not provided exculpatory evidence to the accused. Marshall said agreement to an administrative penalty carries an implied admission of guilt. He said his office could not rely on the commission’s findings in those cases because the exculpatory evidence was not shared.

Almond said it made sense to address that concern in the law.

“A lot of times people quote, plead guilty, without all the facts, and then later on they find out things that if they had known that they wouldn’t have pled guilty to the charge,” Almond said. “We felt that because they are asked to make a decision it was only fair at that point that they have all information alleged against them.”

Sumner said the commission’s policy of not providing exculpatory evidence caused an uproar that resulted in legislation that went beyond just that issue.

“When you make an extreme decision, you’re going to get an extreme reaction,” Sumner said. “So it allowed the Legislature to go in and actually get at something that’s probably been a burr under everybody’s saddle. As a public official and an employee and on the receiving end of an ethics complaint, they want to know who filed that complaint. So, something that we had done for 40 years, through the history of the commission to protect the complainant has now been done away with.”

“The protection of the complainant is the Holy Grail of the ethics act,” Sumner said. “And with that exposed, then I think that very few people will be willing to step forward and make those complaints.”