State School Board Races: worthy inquiry to Secretary Merrill?

Recent political Kabuki theatre has some contemplating Gov. Ivey’s dating preferences and Judge Sue Bell Cobb’s campaign hiring practices. How candidates deal with these may be revealing. I also wonder why Cobb did not quickly and simply apologize, then remove the convicted sex offender from her campaign team. I’m similarly at a loss on the dearth of political discussion on Ivey’s inaction w.r.t. the Alabama PACT program during our last economic meltdown and forecasts of her abilities to address another contraction. With so much unsustainable economic activity driven more by govt. distortion and bailouts instead of market forces, the next bubble pop promises to be as profound as our last a decade ago. Given my greater affection for the mundane - like why our Secretary of State eliminated an election to install Felon Hubbard’s preferred replacement, I’ll ask readers if they think an inquiry about candidates in some of our State School Board races is apropos.

Section 16-3-3 of the code of Alabama declares “No person who is an employee of the board or who is or has been engaged as a professional educator within five years next preceding the date of the election shall be eligible for membership on the board. For the purposes of this section the term ‘professional educator’ shall include teacher, supervisor or principal of any public or private school; instructor, professor or president of any public or private university, college or junior college or trade school; any state, county or city superintendent of education; or other person engaged in an administrative capacity in the field of education.”

Page 13 (lines 11 thru 27) of Rep. Collins 2018 House Bill 70 still included these requirements in §16-3-3 of Alabama Law http://web.alsde.edu/…/2018Regula/2018RS%20HB0070%20OR.pdf… Rulings in 1976 and 1983 found 16-3-3 unconstitutional under equal protection grounds, specifically because of limitations on a person to be involved in the political process. The most recent case I found to challenge these rulings was decided in 2004. The plaintiff referenced the 1976 and 1983 cases to challenge the GOP not allowing him to run for State school board. The judge dismissed that specific claim with prejudice. Our State’s own law manual [p. 134] for superintendents also references the 1976, 1983 and 2004 cases, acknowledges the findings, and elaborates our State Ethics Commission effectively supports 16-3-3 because a school employee cannot ethically be on the same governing board which employs them.

“Association rights are also implicated in situations where the school employee is politically active. Section § 16-3-3 Code of Alabama (1975) prohibits a person who is an employee of the (state) board or who is or has been engaged as a professional educator within five years prior to election to be eligible for membership on the board. A federal district court found this prohibition to be an unconstitutional provision in Gold et. al. v. Baggett et. al., Civil Action No. 76-120-N (M.D.Ala. 1976). The same conclusion was reached by a state court in Alabama State Ethics Com’n ex rel Charles Graddick v. Dr. Evelyn Pratt, Civil Action No. CV-83-175-G (Circuit Court, Alabama Fifteenth Judicial Circuit, 1983). However, state ethics commission rulings have made it clear that it is a conflict of interest for a school employee to be on the same governing board that employs him or her. (See, materials on Alabama State Ethics

Commission, compiled by Dr. Paulette Rogers, and included in the materials following Module 33.)”

Parties have a history of changing an election rule or practice without first seeking approval from the US DoJ as specifically required by the Voting Rights Act of 1965. Parties have also violated the instruction of at least one opinion of a past Alabama Attorney General attempting to enforce, or otherwise support by means of the Party apparatus a provision in State law prohibiting professional educators from serving on the Alabama State Board of Education previously determined unconstitutional.

Application of the Voting Rights Act of 1965 to election related actions undertaken by political parties has been long settled in the current legal/political environment. In Morse v. Republican Party of Virginia (94-203), 517 U.S. 186 (1996), The U.S. Supreme Court has held, “Shortly after the statute was passed, the Court thoroughly reviewed its legislative history and found that Congress intended §5 to have “the broadest possible scope” reaching “any state enactment which altered the election law of a covered State in even a minor way.” It also has long established law that any and all such changes in election rules or practices in Alabama, even minor ones, require pre-clearance by the DoJ as per Chapter 5 of the 1965 Voting Rights Act.

The form of and processes of certifying the ballots for primary elections is established in Section 17 of the Alabama Code which makes it clear no political party is obliged to hold a primary. Section 17-16-11 of the code of Alabama states, “...the state party chair shall, no later than 5:00 P.M. 55 days before the primary election, certify the names of all primary election candidates, except candidates for county offices, to the Secretary of State.” Some have asserted a pattern of behaviour indicating (by means of Party apparatus and improperly enacted and selectively applied rules) an attempt to enforce a portion of State Law barring professional educators from serving on the State Board of Education previously been held to be unconstitutional.

Enough on the legal minefield. Sadly in Alabama, taxpayers fund Party primaries where they must decide which ONE they will participate in although they pay for both; then suffer lack of choice due to restrictive duopoly ballot access laws in general elections taxpayers ARE obliged to provide. What role does our Secretary of State play in verifying eligibility of candidates placed on taxpayer funded ballots? If a Party (paying for their own caucus, primary, smoke filled room, etc.) wants to put someone on the ballot who’s not eligible, will violate ethics laws, etc. that’s fine; it can then be addressed on the taxpayer funded general election ballot the State IS obliged to provide. Our State spends much time and effort verifying signatures, candidate filing forms, etc. to allow one to be placed on the ballot - where does the responsibility fall? Can one file an ethics complaint/inquiry to impede certification before it is too late and more unethical contracting and decisions are determined? Recent passing of Amendment 14 suggests a block of individuals who do show to vote not wanting (and/or caring about?) properly passed legislation in Alabama these past decades.

A complaint was filed with the ALGOP steering committee with respect to eligibility of two candidates for State School Board District 2. It appears more effort was put toward ‘sweeping it under the rug’ reading text from Terry Latham who relied on Brian Taylor’s (the Governor’s connection to BCA/Riley Inc.) interpretation of the law which indicates failure to read the court of appeals decision and the Ethics Commission’s opinion. A complaint was also sent to Sect. Merrill who routed it to the Assistant Attorney General assigned to the Secretary of State’s office, who indicates a similar lack of due diligence. I couldn’t find anything they’ve publicly submitted to refute ineligibility claims under circumstances of this sort. A reliable source said efforts to obtain a temporary restraining order is moving forward in an attempt to (re)assert these specific eligibility rules in the Alabama code are defended and enforced for State School Board members. From my vantage point (as most readers know, I really don’t care if they’re Democrat or Republican) here are some candidates who may be worthy of scrutiny in this regard:

Jackie Zeigler - 1st District: incumbent, shows information indicating time as school principal in the five year window which applies.

Melanie Hill - 2nd District: information indicating employment with the Dothan city school board less than five years ago, resigned before her term ended.

Adam Jortner - 2nd District: information indicating current employment as a professor.

Tracie West - 2nd District: information indicating current president of Auburn city school board.

Yvette Richardson - 4th District: incumbent, with information indicating current employment as a teacher/superintendent and educational consultant, unopposed in the primary.

Don Wallace - 4th District: information indicating employment as a part time instructor in the 5 year window.

Cynthia McCarty - 6th District: incumbent with information indicating current employment as a professor and professor when originally installed into the position, unopposed in the primary.

Some candidate research found those like Rich McAdams and Wayne Reynolds (both 8th District) who appear to be adhering to the 5 year rule; John Taylor (2nd District) shows information indicating much volunteering in schools but no official educational positions which would make him ineligible. Some candidates appear to be eligible, but are suspect with so little history I’ve found/available for verification of adhering to this specific rule. The usual caveat applies, this is simply more of my opining - I make no claim to have superior access over the offices of Sect. Merrill or AG Marshall. Doubtful I’ve enumerated all State School Board candidates worthy of investigation; nonetheless alarming how many candidates who appear to be in violation are incumbents, two of whom are also unopposed in the primary. One has to wonder how often and for how long these ineligibilities are left uncontested. The trade-off of not having educators (revolving door/capture theory of regulation) in the mix to curb corruption is the reason for the legislation. If lawmakers think we no longer have worries in this regard then remove the law… which seems de facto repealed under the observed results in these Districts aided/installed by party apparatchiks and Sect. Merrill.

Who verifies? Are Parties allowed to thumb their nose at the law and ethics violations? If so, why waste taxpayer effort and time on forms and filings? Will they also be allowed on the taxpayer funded general election ballots? If the AG, Ethics Commission, Parties, Secretary of State, et al fail to address this, how does one proceed? First request an Ethics investigation? Is it possible to have class action lawsuit to lower the cost of removing all these results in one action? It appears in 1976, 1983 and 2004 each time a candidate was removed under 16-3-3 the appeals were denied; if correct - I await argument(s) on how candidates listed above, if verified, are different. Perhaps most if not all citizens, readers, taxpayers, voters will find these foolish inquiries unworthy of consideration… Mencken sagely asserted we get the government we deserve.

Postscript: Many thanks for input and perspective from Josh Blaz, undergraduate student of Economics, Auburn University; again, the usual caveat applies - i.e., all errors, etc. are my own. As always, constructive comments and corrections sent to gazettesophocleus@gmail.com are welcomed.