REL:

April 10, 2020

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2019-2020
____________________
1180047
____________________
Ex parte Michael Gregory Hubbard
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Michael Gregory Hubbard
v.
State of Alabama)
(Lee Circuit Court, CC-14-565;
Court of Criminal Appeals, CR-16-0012)

 1180047
PARKER, Chief Justice.
Michael Gregory Hubbard was charged with 23 counts of
violating Alabama's "Code of Ethics for Public Officials,
Employees, Etc.," §§ 36-25-1 to -30, Ala. Code 1975 ("the
Ethics Code").1

The Lee Circuit Court entered a judgment on

a jury verdict convicting Hubbard on 12 of the 23 counts.
Hubbard appealed to the Court of Criminal Appeals, which
affirmed

the

convictions

conviction on 1 count.

on

11

counts

and

reversed

the

Hubbard petitioned this Court for

certiorari review of the 11 counts affirmed by the Court of
Criminal Appeals, and we granted review.

For the reasons

below, we affirm the judgment of the Court of Criminal Appeals
as to Hubbard's convictions on six counts, and we reverse as
to the

convictions on five counts because they were based on

insufficient evidence or incorrect interpretations of the
Ethics Code.
I. Factual Background
In 1994, Hubbard formed Auburn Network, Inc. ("Auburn
Network"), a radio network that held the media rights for

1

The Ethics Code has been amended several times during the
last several years. None of the sections at issue in this
case, however, has been amended in any relevant way.
2

 1180047
Auburn

University

athletics.

Hubbard

later

sold

the

broadcasting/media portion of Auburn Network to International
Sports Properties, Inc. ("ISP"), and stayed on as president of
Auburn ISP Network.

Hubbard received a salary from ISP but

also continued to operate what remained of Auburn Network.
In 1998, Hubbard was elected to the Alabama House of
Representatives.
in

2004

and

then

Republican Party.
Republican

He was elected minority leader of the House
was

elected

chairman

of

the

Alabama

As chairman, he helped orchestrate the

takeover

of

both

chambers

Legislature in the 2010 election.

of

the

Alabama

That statewide effort was

conducted on a platform dubbed "The Handshake with Alabama,"
which included a promise of ethics reform.
Thus, shortly after the 2010 election, the Governor
called

a

special

session

of

the

new

legislature to reform the Ethics Code.

Republican-majority
At the beginning of

the session, Hubbard was elected Speaker of the House.

Under

Hubbard's leadership, the legislature revised the Ethics Code
to, among other things, tighten restrictions on gifts to
public

officials

and

employees

employers.

3

from

lobbyists

and

their

 1180047
Soon

thereafter,

Hubbard

began

experiencing

personal

financial difficulties. In January 2011, ISP was purchased by
International Management Group, which laid off Hubbard two
months later.

Hubbard began looking for ways to replace his

lost income.

In particular, he began seeking clients with

which he could contract as a consultant.

To that end, he

enlisted the aid of Will Brooke, an executive of an assetmanagement firm and the then chairman of the Business Council
of Alabama ("the BCA").

Brooke was ultimately unable to find

any clients for Hubbard, but Hubbard eventually obtained
several clients through other means.
In 2012, Hubbard experienced further difficulties when
Craftmaster Printers, Inc. ("Craftmaster"), a printing company
in which he held a 25 percent interest, was teetering on the
edge of financial collapse.

Hubbard again reached out to

Brooke, who crafted a turnaround plan for the company.

To

implement the plan, Hubbard located eight investors who each
contributed $150,000 in exchange for Craftmaster stock.
In 2014, Hubbard was indicted on 23 counts of violating
the Ethics Code.

After a 4-week jury trial, he was convicted

on 12 of those counts.

The trial court ordered that some of

4

 1180047
his sentences were to run concurrently and some consecutively,
for an effective total of 4 years in prison and 16 years of
probation, and he was ordered to pay various fines.
On

appeal,

the

Court

of

Criminal

Appeals

affirmed

Hubbard's convictions on 11 counts and reversed the conviction
on 1 count. Hubbard v. State, [Ms. CR-16-0012, Aug. 27, 2018]
___

So.

3d

___,

___

(Ala.

Crim.

App.

2018).

Hubbard

petitioned this Court for certiorari review of the 11 affirmed
counts, and we granted review.
II. Discussion
A. Craftmaster investments and Brooke's assistance (counts
16-19, 23)
Hubbard was convicted on five counts of soliciting or
receiving a thing of value from a principal of a lobbyist, in
violation of § 36-25-5.1(a), Ala. Code 1975.

Counts 16-19

were based on Hubbard's receiving the Craftmaster investments.
Count 23 was based on Hubbard's soliciting Brooke's help with
finding new clients and Hubbard's receiving Brooke's advice
regarding the financial-turnaround plan for Craftmaster. 2
2

Hubbard does not argue that the Craftmaster
and Brooke's financial advice were not solicited
by Hubbard in his personal capacity. Thus, for
this discussion, we treat Craftmaster and
synonymous.
5

investments
or received
purposes of
Hubbard as

 1180047
1. Facts relating to counts 16-19 and 23
In 2008, Craftmaster obtained a loan of approximately
$600,000

from

guaranteed

Regions

33

Bank,

percent.

of

In

which

August

Hubbard
2012,

personally

Regions

Bank

determined that Craftmaster was not generating enough income
to repay the loan.

In addition, Craftmaster had defaulted on

the loan by failing to pay $350,000 in payroll taxes. Regions
Bank transferred the loan to its problem-assets department.
Hubbard reached out to Brooke for advice.

Based on

financial information provided by Hubbard, Brooke concluded
that Craftmaster was undercapitalized, and he developed a
financial-turnaround plan. Under Brooke's plan, Hubbard would
locate

several

Craftmaster.

investors

to

each

invest

$150,000

in

Craftmaster would then use the money to pay off

part of the Regions Bank loan and to pay all the payroll
taxes.

Each investor would receive Craftmaster stock with a

promise of a quarterly dividend at an annualized rate of six
percent of the invested amount.
Hubbard procured eight investors, including Brooke.
the

time,

committee.

Brooke

was

a

member

of

the

The BCA retained lobbyists

6

BCA's

At

executive

to represent its

 1180047
interests before the legislature.
the

BCA's

reported

executive
to

the

director

executive

(a

The lobbyists reported to
lobbyist),

committee.

who

Among

in

the

turn
other

Craftmaster investors were Sterne Agee Group, Inc. ("Sterne
Agee"); Jimmy Rane, president of Great Southern Wood; and Rob
Burton, president of Hoar Construction, LLC.
Brooke

testified

that

he

received

the

promised

six

percent return, which he said was a "very, very good return."
A Sterne Agee employee testified that the investment was a
"good business deal."

Rane testified that the stock "was a

good investment" and that Craftmaster never missed a dividend
payment.

Burton testified that he received a four percent

return, although he was supposed to receive six percent.
Based on Hubbard's receiving the subject four investments
in Craftmaster, he was convicted of receiving a thing of value
from Brooke (count 16), from Sterne Agee (count 17), from Rane
(count 18), and from Burton (count 19).

(The State did not

charge Hubbard with any offense for receiving the investments
from the remaining four investors.)

Based on Hubbard's

requests to Brooke for help in obtaining clients for his
consulting work and based on Hubbard's receiving Brooke's

7

 1180047
turnaround plan for Craftmaster, Hubbard was convicted on an
additional count of soliciting or receiving a thing of value
from Brooke (count 23).
2. Discussion regarding counts 16-19 and 23
The section of the Ethics Code under which Hubbard was
convicted provides:

"[N]o public employee or public official

or family member of the public employee or family member of
the public official shall solicit or receive a thing of value
from a lobbyist, subordinate of a lobbyist, or principal."
36-25-5.1(a), Ala. Code 1975 (emphasis added).

§

Thus, on

counts 16-19 and 23, the State was required to prove (1) that
Hubbard was a public employee or public official (2) who
solicited or received a "thing of value" (3) from a lobbyist,
a lobbyist's subordinate, or a "principal," and (4) that he
did so intentionally (see § 36-25-27(a)(1), Ala. Code 1975).
Hubbard
First,

he

challenges
argues

that

these
his

convictions
receiving

on
the

two

bases.

Craftmaster

investments from Brooke, Sterne Agee, Rane, and Burton did not
violate the Ethics Code because, he argues, the investments
came within a statutory exclusion for when an official "pays
full value" for the thing received.

8

Second, Hubbard contends

 1180047
that Brooke, Rane, and Burton were not "principals" because
they did not hire lobbyists to represent them personally.
Hubbard does not dispute that Sterne Agee was a principal.
a. The full-value exclusion
For purposes of the prohibition of receiving a thing of
value from a principal, the Ethics Code broadly defines "thing
of value" as "[a]ny gift, benefit, favor, service, gratuity,
tickets to or passes to an entertainment, social or sporting
event, unsecured loan, other than those loans and forbearances
made in the ordinary course of business, reward, promise of
future employment, or honoraria or other item of monetary
value." § 36-25-1(34)a, Ala. Code 1975. The Ethics Code then
sets forth a negative definition of "thing of value": "The
term, thing of value, does not include any of the following,
provided that no particular course of action is required as a
condition to the receipt thereof ...."

§ 36-25-1(34)b.

The

negative definition includes 18 subparts, which we will refer
to in this opinion as "exclusions."3

3

In particular, the

Our use of this term is for convenience only and does not
suggest or imply that anyone other than the State bears the
burden of persuasion ("proof") as to each subpart of § 36-251(34)b that is at issue in a case.
9

 1180047
Ethics Code defines as not being a thing of value "[a]nything
for which the recipient pays full value."

§ 36-25-1(34)b.9.

As to counts 16-19, Hubbard relies on this full-value
exclusion, arguing that, by providing stock to the Craftmaster
investors, he paid full value for their investments.4

The

State, on the other hand, contends that Hubbard did not "pay"
the investors because the meaning of the word "pays," as used
in

the

statute,

Alternatively,

is

the

limited

State

to

argues

the
that

payment
the

of

stock

money.
did

not

constitute "full value" for the investments.
The Court of Criminal Appeals characterized Hubbard's
argument as attacking the weight of the evidence. See Hubbard
v. State, ___ So. 3d at ___, ___.

That characterization

missed the mark. Hubbard's argument challenged not the weight
of the evidence, but the circuit court's interpretation of the
full-value
evidence

exclusion
to

prove

and

the

sufficiency

of

that

the

exclusion

did

the
not

State's
apply.

Alternatively, the Court of Criminal Appeals held that the

4

Hubbard also argues in his brief that the circuit court
erred by failing to instruct the jury on the full-value
exclusion. However, Hubbard did not raise that issue in his
certiorari petition, so it is outside the scope of our review.
See Ex parte Franklin, 502 So. 2d 828, 828 n.1 (Ala. 1987).
10

 1180047
term "pays" is limited to the payment of money. ___ So. 3d at
___, ___.
We first address the meaning of "pays" and then whether
the

Craftmaster

stock

constituted

"full

value"

for

the

investments.
i. Meaning of "pays"
We review issues of statutory interpretation de novo. Ex
parte Kennemer, 280 So. 3d 367, 370 (Ala. 2018). "'Absent any
indication to the contrary, the words [of a statute] must be
given their ordinary and normal meaning.'"

Ex parte Ankrom,

152 So. 3d 397, 409 (Ala. 2013) (quoting Walker v. State, 428
So. 2d 139, 141 (Ala. Crim. App. 1982)).
In determining whether the plain meaning of the word
"pays" includes transfers of nonmonetary items such as stock,
several legal reference works are informative.
Dictionary

defines

"payment"

as:

"1.

Black's Law

Performance

of

an

obligation by the delivery of money or some other valuable
thing accepted in partial or full discharge of the obligation.
2.

The

money

or

other

valuable

satisfaction of an obligation."

11

thing

so

delivered

in

Black's Law Dictionary 1243

 1180047
(9th

ed.

2009)

(emphasis

added).5 The

term

is similarly

defined in Corpus Juris Secundum:
"Payment is the discharge in money of a sum due
or the performance or satisfaction of a pecuniary
obligation in whole or in part, by compliance with
the terms of the obligation, or by the actual or
constructive delivery of money or its equivalent, by
the obligor or someone for him or her to the obligee
for the purpose of extinguishing the obligation in
whole or in part and the acceptance as such by the
obligee. Payment has also been defined as the full
or partial discharge of a pecuniary obligation by
money or what is accepted as the equivalent of a
specific sum of money; delivery and acceptance of
money or its equivalent in discharge of an
obligation; and the discharge in money or its
equivalent of an obligation or debt owing by one
person to another. ...
"....
"Payment requires a tender, or the actual or
constructive delivery by a debtor or someone for the
debtor to the debtor's creditor, or some other
person authorized to receive it, of money or
something accepted by the creditor as the equivalent
of money, with the intention or purpose on the part
of the payor or transferor to extinguish a debt or
obligation in whole or in part and its acceptance by
the creditor for the same purpose.
"....
"Generally, nothing is to be considered as
payment in fact except money unless the creditor
expressly agrees to receive something else in its
5

We refer to the ninth edition of Black's Law Dictionary
because that was the most recent edition available when the
legislature enacted the full-value exclusion in 2010.
12

 1180047
place, but what the parties to the contract agree be
accepted as payment is, in fact, payment."
70 C.J.S. Payment § 1 (2018) (footnotes omitted; emphasis
added).

Further,

American

addresses "payment" in stock:

Jurisprudence

specifically

"With the parties' agreement,

corporate stock may be given in payment of an obligation ...."
60 Am. Jur. 2d Payment § 29 (2014). These standard references
suggest that the meaning of "pays" is not limited to payment
in money.

See also, e.g., B.M. v. Jefferson Cty. Dep't of

Human Res., 183 So. 3d 157, 163 (Ala. Civ. App. 2015) (noting
that witness testified that party was "paid in food and gas").
The State contends, however, that "pays" is commonly
understood as the payment of money only.

The State relies on

a definition from the 10th edition of Black's Law Dictionary
of the word "pay":
"1. To give money for a good or service that one
buys; to make satisfaction <pay by credit card>. 2.
To transfer money that one owes to a person,
company, etc. <pay the utility bill>. 3. To give
(someone) money for the job that he or she does; to
compensate a person for his or her occupation ...
<she gets paid twice a month>. 4. To give (money) to
someone because one has been ordered by a court to
do so <pay the damages>."
Black's Law Dictionary 1309 (10th ed. 2014) (emphasis added).
Further, the State asserts, no one ordinarily speaks of
13

 1180047
"paying" nonmonetary items in exchange for money, as Hubbard
argues he did here. The State points out that the legislature
chose

to

use

the

word

"pays,"

not

the

broader

term

"exchanges."
The State's interpretation of "pays" is unreasonably
narrow and inconsistent with the common and ordinary meaning
of the word.

The legal references discussed above, including

Black's Law Dictionary, recognize that the concept of payment
is broader than money.

Moreover, the definition on which the

State relies did not appear in Black's until the 10th edition
was issued in 2014.

Thus, that definition was not available

for the legislature's reference when it enacted the full-value
exclusion in 2010.

Indeed, at that time the most recent

Black's

of

definition

nonmonetary items.

"pay"

had

specifically

included

See Black's Law Dictionary 1128 (6th ed.

1990) ("To discharge a debt by tender of payment due; to
deliver to a creditor the value of a debt, either in money or
in goods, for his acceptance." (emphasis added)).
As

for

the

State's

argument

that

one

cannot

"pay"

nonmonetary items for money, it is worth noting that the fullvalue exclusion applies to "[a]nything for which the recipient

14

 1180047
pays

full

value."

§

36-25-1(34)b.9

"Anything" ordinarily means anything.

(emphasis

added).

See United States v.

Gonzales, 520 U.S. 1, 5 (1997) ("Read naturally, the word
'any'

has

an

expansive

meaning,

that

is,

'one

or

some

indiscriminately of whatever kind.'" (quoting Webster's Third
New

International

Dictionary

97

(1976))).

So,

if

the

"anything" that a public official receives includes money,
there is no reason why, given the breadth of the concept of
payment, the official could not "pay" for that money with a
nonmonetary item such as stock.
In addition, the State contends that reading "pays" as
including nonmonetary items would render other thing-of-value
exclusions inoperative or superfluous.
State

asserts

that

this

Specifically, the

interpretation

would

destroy

restrictions contained in the bank-loan exclusion (§ 36-251(34)b.5) and the compensation exclusion (§ 36-25-1(34)b.10).
The bank-loan exclusion carves out from the definition of
"thing of value" "[l]oans from banks and other financial
institutions on terms generally available to the public."
36-25-1(34)b.5.

§

The State posits that if, under the full-

value exclusion, an official could obtain a private loan from

15

 1180047
any

principal

simply

by

"pay[ing]

full

value"

for

it

(presumably in the form of a promise to repay with interest),
then the official could circumvent the requirements of the
bank-loan exclusion that loans be from an institutional lender
and on publicly available terms.
Similarly, the compensation exclusion allows an official
to receive certain business compensation that is "unrelated"
to public service.

§ 36-25-1(34)b.10.

The State contends

that if, under the full-value exclusion, an official could
receive money from a principal for any reason merely by
"pay[ing] full value" for it with nonmonetary items, then the
official

could

render

nugatory

the

requirement

of

the

compensation exclusion that the compensation be "unrelated" to
the official's service.
The State overlooks an important principle of statutory
interpretation that intervenes when provisions seem facially
inconsistent: the general/specific canon. As explained by
Justice Antonin Scalia, writing for the United States Supreme
Court:
"'[I]t is a commonplace of statutory construction
that the specific governs the general.' Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 384
(1992). That is particularly true where ... '[the
16

 1180047
legislature] has enacted a comprehensive scheme and
has deliberately targeted specific problems with
specific solutions.' Varity Corp. v. Howe, 516 U.S.
489, 519 (1996) (THOMAS, J., dissenting); see also
HCSC–Laundry v. United States, 450 U.S. 1, 6 (1981)
(per curiam) (the specific governs the general
'particularly when the two are interrelated and
closely positioned, both in fact being parts of [the
same statutory scheme]').
"The general/specific canon is perhaps most
frequently applied to statutes in which a general
permission or prohibition is contradicted by a
specific prohibition or permission. To eliminate the
contradiction, the specific provision is construed
as an exception to the general one. See, e.g.,
Morton v. Mancari, 417 U.S. 535, 550–551 (1974). But
the canon has full application as well to statutes
such as the one here, in which a general
authorization
and
a
more
limited,
specific
authorization exist side by side. There the canon
avoids not contradiction but the superfluity of a
specific provision that is swallowed by the general
one, 'violat[ing] the cardinal rule that, if
possible, effect shall be given to every clause and
part of a statute.' D. Ginsberg & Sons, Inc. v.
Popkin, 285 U.S. 204, 208 (1932). The terms of the
specific authorization must be complied with. For
example, in [Ginsberg,]
a provision of the
Bankruptcy Act prescribed in great detail the
procedures governing the arrest and detention of
bankrupts about to leave the district in order to
avoid examination. The Court held that those
prescriptions could not be avoided by relying upon
a general provision of the Act authorizing
bankruptcy courts to '"make such orders, issue such
process, and enter such judgments in addition to
those specifically provided for as may be necessary
for the enforcement of the provisions of [the]
Act."' Id., at 206 (quoting Bankruptcy Act of 1898,
§ 2(15), 30 Stat. 546). The Court said that
'[g]eneral language of a statutory provision,
17

 1180047
although broad enough to include it, will not be
held to apply to a matter specifically dealt with in
another part of the same enactment.' 285 U.S., at
208. ... Or as we said in a much earlier case:
"'It is an old and familiar rule that,
where there is, in the same statute, a
particular enactment, and also a general
one, which, in its most comprehensive
sense, would include what is embraced in
the former, the particular enactment must
be operative, and the general enactment
must be taken to affect only such cases
within its general language as are not
within the provisions of the particular
enactment. This rule applies wherever an
act contains general provisions and also
special ones upon a subject, which,
standing alone, the general provisions
would include.' United States v. Chase, 135
U.S. 255, 260 (1890) (citations and
internal quotation marks omitted).
"....
"... [Further], we know of no authority for the
proposition that the canon is confined to situations
in which the entirety of the specific provision is
a 'subset' of the general one. When the conduct at
issue falls within the scope of both provisions, the
specific presumptively governs, whether or not the
specific provision also applies to some conduct that
falls outside the general."
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639,
645-46, 648 (2012).
This application of the general/specific canon makes
clear

that

interpreting

the

18

word

"pays"

as

including

 1180047
nonmonetary items does not render any of the other exclusions
superfluous.

Simply put, if particular conduct is addressed

by more than one exclusion, the most specific exclusion is the
legally relevant one. In this way, each exclusion has a field
of operation, and none destroys any other.
Accordingly, in light of the plain meaning of the word
"pays," we hold that, within the full-value exclusion of § 3625-1(34)b.9, "pays" is not limited to the payment of money but
also includes nonmonetary items such as stock that a public
official or employee transfers in a transaction. Therefore,
Hubbard's transfer of the Craftmaster stock in exchange for
the investments by Brooke, Sterne Agee, Rane, and Burton comes
within the meaning of "pays."
ii. "Full value" for investments
We

must

constituted

next
"full

address
value"

whether
for

the

the

Craftmaster
investors'

stock
money.

Specifically, we must determine whether the State presented
evidence that the stock did not constitute full value.
reviewing

the

sufficiency

of

the

evidence,

we

In

determine

whether, at the time the motion for a judgment of acquittal
was made, the evidence supported a reasonable inference of

19

 1180047
guilt, viewing the evidence in the light most favorable to the
State.

Ex parte Burton, 783 So. 2d 887, 890-91 (Ala. 2000).

As previously noted, the Craftmaster stock came with a
promise of dividends equaling a six percent annual return,
which multiple investors testified was a good return.
was

also

evidence

illusory.

that

promise

was

not

a

sham

or

Brooke testified that he received the promised six

percent return.
a

that

There

dividend

Rane testified that Craftmaster never missed

payment.

Although

Burton

testified

that

he

received a four percent return rather than six percent, we do
not consider that two percent deviation material to whether
the promise was a sham, and the State does not argue that it
is material.
Nevertheless,

the

State

contends

that

it

presented

evidence that the stock did not constitute "full value" for
the $150,000 investments.
State

points

are

(1)

The only evidence to which the

Hubbard's

e-mail

to

a

prospective

investor, stating, "I suspect [that two investors other than
those at issue here] are both doing it more to help me than
for the return on their investment," and (2) Craftmaster's
poor financial state at the time of the investments. Contrary

20

 1180047
to the State's argument, Hubbard's e-mail concerned investors'
motives for investing, which are irrelevant to whether Hubbard
objectively paid, and the investors received, full value for
their money.

Nor did Craftmaster's financial state imply an

absence of full value.

Although the company's dire condition

created a large element of risk in the investments, the
potential for a commensurate return was, as confirmed by later
events, real.
Accordingly, the State failed to present evidence that
the value of each investor's Craftmaster stock was less than
$150,000.

Therefore, the State failed to prove that Hubbard

did not pay full value for the Craftmaster investments, and
thus failed to prove the offense of receiving a thing of value
from a principal.

Accordingly, we reverse the Court of

Criminal Appeals' judgment as to Hubbard's convictions on
counts 16-19.
b. "Principal"
In count 23, Hubbard was convicted of violating § 36-255.1(a) for soliciting and receiving business advice from
Brooke, who the State alleged was a principal.

At all times

relevant to this appeal, Brooke was a member of the BCA's

21

 1180047
board and the BCA's executive committee; it is undisputed that
the BCA is a principal.

Hubbard argues, however, that the

State failed to present sufficient evidence from which the
jury could have fairly concluded beyond a reasonable doubt
that Brooke was a principal, which is defined in § 36-251(24), Ala. Code 1975, as "[a] person or business which
employs, hires, or otherwise retains a lobbyist."

Hubbard's

argument is that the BCA, not Brooke, employed, hired, or
otherwise retained a lobbyist. 6
Hubbard presented this same argument to the Court of
Criminal Appeals, which analyzed the issue as follows:
"Hubbard argues that Brooke was not a principal
because the statute provides that a principal is a
person or business that hires a lobbyist, and Brooke
did not do so. James Sumner, the former director of
the Alabama Ethics Commission and an expert witness
at trial, testified:
"'What we have always said is that, clearly
the person who signs on behalf of that
business is a principal. But there are
6

Hubbard does not argue that the business advice he
solicited and received from Brooke was not a "thing of value";
that element of § 36-25-5.1(a) as it pertains to count 23 is
not at issue on appeal.
Also, as to counts 18 and 19, Hubbard contends that Rane
and Burton were not principals. However, because we are
reversing as to those counts based on the full-value
exclusion, we need not address this additional contention.
22

 1180047
others, decision makers, who are officers.
And of those two, can be and shall be,
considered as principals as well. That
could be the officers. It could be like an
executive committee of the company and -and so forth, and -- but it is -- for a
company, it is broader than just one
individual.'
"....
"Sumner
further
explained
that,
in
political-interest groups or advocacy organizations,
several people would be considered principals:
presidents, vice presidents, chairs, vice chairs,
and the leadership at the top of the organization.
Therefore, based on the evidence presented at trial,
the jury could reasonably have found that Brooke was
a principal in the BCA."
Hubbard v. State, ___ So. 3d at ___.
In concluding as it did, the Court of Criminal Appeals
failed to engage in an analysis of the plain language of the
definition

of

"principal"

to

ascertain

its

meaning

but,

instead, relied exclusively on the expert testimony of James
Sumner, former director of the Alabama Ethics Commission. The
expert testimony of Sumner concerning the meaning of § 36-251(24) is not authoritative, nor even all that persuasive.

We

must determine the plain meaning of § 36-25-1(24) by applying
the relevant principles of statutory interpretation.

23

 1180047
Under § 36-25-1(24), a "principal" is the "person or
business
lobbyist."

which

employs,

hires,

(Emphasis added.)

or

otherwise

retains

a

This definition makes clear

that the thing that qualifies a person or business as a
principal is the act of "employ[ing], hir[ing], or otherwise
retain[ing] a lobbyist."

As noted above, it is undisputed

that the BCA is a principal in that it employed, hired, or
otherwise retained lobbyists. The question before this Court,
however, is whether Brooke was a principal.
In the present case, the evidence presented by the State
indicates that Brooke was a member of the BCA's board and of
its executive committee.

The State notes in its brief that

"Brooke occupied one of the top leadership positions on the
BCA board's executive committee from 2010-2012. ... The BCA's
lobbyists

reported

to

the

group's

top

lobbyist,

[Billy]

Canary. And he 'report[ed] to the executive committee of the
BCA Board,' which included Brooke."
47.

The State's brief, at p.

The State did not present any evidence that Brooke was

the individual who employed, hired, or otherwise retained the
BCA's lobbyists.

Neither did the State present any evidence

that Brooke negotiated or signed on behalf of the BCA the

24

 1180047
contractual agreements with Billy Canary or the BCA's other
lobbyists.

We

note

that

the

definition

of

"principal"

unequivocally does not include a person or business that
supervises or manages a lobbyist, but includes only those that
"employ[],

hire[],

or

otherwise

retain[]

a

lobbyist."

Accordingly, based on the facts presented by the State, the
issue is whether the definition of "principal" is broad enough
to encompass a member of the board of an entity that has
employed, hired, or otherwise retained a lobbyist, even though
there is no evidence that the member of the board was involved
with the actual employing, hiring, or otherwise retaining of
the entity's lobbyist.
The State appears to take the position that the terms
"business" and/or "person," as used in the definition of
"principal" in § 36-25-1(24), include not only the entity
itself that employs, hires, or otherwise retains the lobbyist,
but also all the individual members of the entity's board.
See

the

State's

brief,

at

pp.

48-51.

In

other

words,

according to the State, it is insignificant that Brooke had no
personal or direct involvement with employing, hiring, or
otherwise retaining the BCA's lobbyists because Brooke was a

25

 1180047
member of the BCA's board.

The State argues that the only

evidence it needed to present to support the jury's verdict
finding Brooke to be a principal was that the BCA was a
principal.

We disagree.

The terms "business" and "person" used in § 36-25-1(24)
are terms of art defined in that statute as follows:
"(1) BUSINESS. Any corporation, partnership,
proprietorship,
firm,
enterprise,
franchise,
association, organization, self-employed individual,
or any other legal entity.
"....
"(23)
PERSON.
A
business,
individual,
corporation, partnership, union, association, firm,
committee, club, or other organization or group of
persons."
§ 36-25-1(1) and (23), Ala. Code 1975 (capitalization in
original).

The definitions of both terms include the word

"corporation."

According to the Alabama Secretary of State's

records, the BCA is a corporation.7

The legislature did not

define the term "corporation" in the Ethics Code; thus, this
Court must give the term its plain and ordinary meaning.
"Corporation" is defined as
7

See Rimpsey Agency, Inc. v. Johnston, 218 So. 3d 1242,
1243 n.1 (Ala. Civ. App. 2016)("[T]his court may take judicial
notice of matters of public record, including records of the
Secretary of State ....").
26

 1180047
"[a]n entity (usu[ally] a business) having authority
under law to act as a single person distinct from
the shareholders who own it and having rights to
issue stock and exist indefinitely; a group or
succession of persons established in accordance with
legal rules into a legal or juristic person that has
a legal personality distinct from the natural
persons who make it up, exists indefinitely apart
from them, and has the legal powers that its
constitution gives it."
Black's Law Dictionary 391 (9th ed. 2009) (emphasis added).
When

the

word

"corporation"

is

given

its

plain

and

ordinary meaning, it is clear that the BCA is "a legal or
juristic person that has a legal personality distinct from the
natural persons that make it up" and that the BCA "exists ...
apart from them."8

In other words, the BCA and the individual

members of the BCA's board are not the same legal person; they
exist distinct from one another.

Therefore, we conclude that

the Court of Criminal Appeals' interpretation of the word
"principal" was in error.

The term "principal" is not broad

8

This principle is well established in our caselaw. See,
e.g., Hill v. Fairfield Nursing & Rehab. Ctr., LLC, 134 So. 3d
396, 407 (Ala. 2013)("'"[A] corporation is a legal entity
existing separate and apart from the persons composing it
...."'" (quoting Cohen v. Williams, 294 Ala. 417, 420, 318 So.
2d 279, 280 (1975), quoting in turn 18 Am. Jur. 2d
Corporations § 14, p. 559)); Ex parte AmSouth Bank of Alabama,
669 So. 2d 154, 156 (Ala. 1995) ("A corporation is generally
regarded as a legal entity separate from its directors,
officers, and shareholders.").
27

 1180047
enough to encompass within its meaning a member of the board
of an entity that has employed, hired, or otherwise retained
a lobbyist when there is no evidence that the board member was
involved with the employing, hiring, or otherwise retaining of
the entity's lobbyist. 9
We note that our conclusion that a board member of an
entity that has employed, hired, or otherwise retained a
lobbyist is not a "principal" solely based on the individual's
position as a board member does not foreclose the possibility
that a board member of such an entity could, in fact, satisfy
the definition of "principal."

In other words, there is no

"bright-line" rule that a member of the board of an entity
9

Our interpretation of "principal" is further supported
by the fact that the legislature employed specific language in
§ 36-25-1(2), Ala. Code 1975, to include a reference to
officers, owners, partners, board-of-directors members, and
employees within the definition of the term "business with
which the person is associated."
The entirety of the
definition of "business with which the person is associated"
states: "Any business of which the person or a member of his
or her family is an officer, owner, partner, board of director
member, employee, or holder of more than five percent of the
fair market value of the business." The legislature clearly
understands the difference between a corporation and the
individuals who compose it.
In defining "principal," the
legislature chose not to include the specific language it
employed in defining "business with which the person is
associated." This Court cannot include within the definition
of "principal" that which the legislature specifically chose
to exclude.
28

 1180047
that has employed, hired, or otherwise retained a lobbyist
cannot be considered a "principal." Again, the key to whether
an individual fits within the definition of "principal" is the
activity of the person, not the person's title, position, or
job description.

The hallmark of a "principal" is one that

employs, hires, or retains a lobbyist; this will necessarily
be determined on a case-by-case basis.
In light of the foregoing, the jury could not have
reasonably concluded that Brooke was a principal based on the
mere facts that the BCA was a principal and that Brooke was a
member of its board and its executive committee.
was

required

to

present

sufficient

evidence

The State

that

Brooke

himself was a "person or business which employs, hires, or
otherwise retains a lobbyist."
any such evidence.

The State failed to present

Accordingly, we reverse the Court of

Criminal Appeals' judgment as to Hubbard's conviction on count
23.

29

 1180047
B. Consulting payments from American Pharmacy Cooperative,
Inc., and Edgenuity, Inc. (counts 6 and 10)
Hubbard was convicted on two other counts of soliciting
or receiving a thing of value from a principal in violation of
§ 36-25-5.1(a), Ala. Code 1975.

Counts 6 and 10 were based on

Hubbard's receiving payments from two companies -- American
Pharmacy

Cooperative,

Inc.

("APCI"),

and

Edgenuity,

Inc.

("Edgenuity").
1. Facts relating to counts 6 and 10
In 2011, Hubbard met Michael Humphrey at an educationproducts conference in San Francisco.

Humphrey was executive

vice president of E2020, Inc., a company that provided online
digital curriculum to public schools.

The company's name was

later changed to Edgenuity, Inc.
Hubbard and Humphrey later discussed through a mutual
acquaintance, Ferrell Patrick (Edgenuity's Alabama lobbyist),
the possibility of Edgenuity's hiring Hubbard as a consultant.
Humphrey e-mailed one of Edgenuity's owners, stating:
"I am considering a deal with the House Speaker in
Alabama as you know....he can get us in front of any
speaker in the country regardless of party....but
way more influence with the R[epublican]s...I think
this would help us in states that we do not have a
lobby presence."

30

 1180047
Michelle Freeman, an Edgenuity paralegal, helped Humphrey
draft a contract with Hubbard.

In an e-mail sending Freeman

his initial draft of the contract, Humphrey wrote: "Mike is
the current Speaker of the House in Alabama....my thought in
using him would be for intros into House and Senate leadership
in states where we do not have lobby support (and even states
where we do, when necessary)."

Freeman noted that Hubbard

"could speak on our behalf: (i) at regional/national political
party

conferences;

or

(ii)

meetings

with

his

elected

colleagues in other states; (iii) roundtables sponsored by
think tanks; or (iv) at education industry conferences."
In March 2012, Edgenuity and Hubbard (on behalf of Auburn
Network) signed the contract.

It provided that Edgenuity

would pay Hubbard $7,500 per month and that his services would
not take place within Alabama.

After Patrick told Hubbard

that Edgenuity had approved the contract, Hubbard responded:
"Now, how do I learn more about what they do and how I can
help outside the state [o]f Alabama?"

In response, Patrick

offered Hubbard "tutorials over a glass of [S]cotch."
On Edgenuity's behalf, Hubbard contacted the speakers of
the Houses of Representatives of North Carolina and South

31

 1180047
Carolina and contacted officials of the National Collegiate
Athletic Association.

Between April 2012 and July 2014,

Edgenuity paid Hubbard a total of $210,000.
Patrick also helped Hubbard obtain a consulting contract
with another of Patrick's lobbying clients, APCI.

APCI's

president, Timothy Hamrick, described APCI as "a corporate
office for ... community owned, community based, independent
pharmacies."

APCI's purpose was to help these pharmacies

compete with larger chains through legislative efforts and
advertising.
In June 2012, Hubbard, as president of Auburn Network,
signed a contract with APCI.

Like the Edgenuity contract, it

prohibited Hubbard from providing services within Alabama.
Under the contract, Hubbard would be paid $5,000 per month.
Between August 2012 and January 2014, APCI paid Hubbard
$95,000.
Hamrick testified at trial that, when APCI hired Hubbard,
"[t]he main focus was to represent [APCI's] interest in these
other states that we were expanding to."

Hamrick also noted

that, "[b]eing Speaker of the House in Alabama, [Hubbard] ...
knew the Speakers and Legislators from other states." Hamrick

32

 1180047
testified that he thought Hubbard could use the contacts he
had developed as Speaker of the House in states where APCI did
business.
In 2013, APCI lobbied the Alabama Legislature for a
budget provision that would make APCI the statewide manager of
Medicaid pharmacy benefits and would prevent an out-of-state
entity from becoming the manager.

The provision was included

in the proposed budget for the upcoming fiscal year.
wrote

to

Hubbard,

provision.

thanking

him

for

Hamrick

"championing"

the

Just before the budget came up for a vote in the

House of Representatives, Hubbard's chief of staff, Josh
Blades, became aware of Hubbard's contract with APCI and
warned Hubbard that he should not vote on the budget, which
contained

the

Medicaid-manager

provision.

At

Hubbard's

request, Blades tried to get the provision removed before the
budget came up for a vote, but he was not successful.

Blades

again advised Hubbard not to vote on the budget, but Hubbard,
concerned about how it would look for him not to vote on "his
own budget," went ahead and voted in favor of it.
passed

the

House

of

Representatives,

33

but

the

The budget
language

 1180047
favorable to APCI was removed by a conference committee before
the final budget was approved by the full legislature.
In connection with these consulting contracts with APCI
and Edgenuity, Hubbard had written to Sumner, then director of
the Alabama Ethics Commission, requesting clarification about
the legality of entering into such contracts.

In response,

Sumner wrote:
"As a general rule, the law prohibits you from
using your position or the mantle of your office
to provide a personal benefit to yourself or to
your company, Auburn Network, Inc.
This means
that should any issue affecting Auburn Network,
Inc.[,] differently from all other similarly
situated businesses come before the Legislature,
you need to remove yourself from any discussions,
votes, etc. dealing with Auburn Network, Inc."
Sumner testified at trial that, during various conversations
with Hubbard, Sumner or other Commission staff told Hubbard
that he could not use his official position to benefit himself
or his business.
Based on Hubbard's receiving the payments under these
consulting contracts, he was convicted of receiving a thing of
value from APCI (count 6) and Edgenuity (count 10).

34

 1180047
2. Discussion regarding counts 6 and 10
Hubbard argues that the payments he received under his
contracts with APCI and Edgenuity came within the Ethics
Code's "compensation" exclusion from the definition of "thing
of value."10

This exclusion provides:

"The term, thing of value, does not include any of
the following, provided that no particular course of
action is required as a condition to the receipt
thereof:
"....
"... Compensation and other benefits
earned from a non-government employer,
vendor, client, prospective employer, or
other business relationship in the ordinary
course of employment or non-governmental
business activities under circumstances
which make it clear that the thing is
provided for reasons unrelated to the
recipient's public service as a public
official or public employee."
§ 36-25-1(34)b.10, Ala. Code 1975. 11

10

Hubbard does not argue that the payments from APCI and
Edgenuity to Auburn Network were not ultimately received by
Hubbard personally. Thus, for purposes of this discussion, we
treat Auburn Network and Hubbard as synonymous.
11

Hubbard also contends in his brief that the payments
came within the full-value exclusion. However, Hubbard did
not raise that issue in his certiorari petition; thus, it is
outside the scope of our review. See Ex parte Franklin, 502
So. 2d 828, 828 n.1 (Ala. 1987).
35

 1180047
There are three elements to this compensation exclusion:
the compensation or other benefits must be (1) earned from a
nongovernmental business relationship (such as an employer,
client, or vendor), (2) in the ordinary course of employment
or nongovernmental business activity, (3) under circumstances
that make clear that the compensation or benefits are provided
for reasons unrelated to the recipient's public service.
Hubbard contends that the third element must be understood as
meaning only that the compensation must not be a quid pro quo
for the public official's exercise of official power.

When

this element is so understood, Hubbard argues, the State
failed

to

disprove

its

applicability

because

the

State

presented no evidence that the consulting payments were such
a quid pro quo.
Initially, the State responds that Hubbard waived the
compensation-exclusion argument because he did not request a
jury

instruction

argument

is

not

on
a

this

exclusion.

failure-to-instruct

However,

Hubbard's

argument,

but

a

sufficiency-of-the-evidence argument: he contends that the
State failed to present evidence to disprove the applicability
of the exclusion.

To preserve such a sufficiency argument, a

36

 1180047
party is not required to request a jury instruction.

Cf.

Complete Cash Holdings, LLC v. Powell, 239 So. 3d 550, 557 n.7
(Ala. 2017) (holding in a civil case that an objection to a
jury instruction was not necessary to preserve a sufficiencyof-the-evidence issue).

Instead, a sufficiency argument is

preserved by a motion for a judgment of acquittal.
McNish, 878 So. 2d 1199 (Ala. 2003).
compensation

exclusion

in

his

Ex parte

When Hubbard raised the

motion

for

a

judgment

of

acquittal, he preserved it.
On appeal, the Court of Criminal Appeals incorrectly
understood Hubbard's argument as challenging the weight of the
evidence.
Instead,

See Hubbard v. State, ___ So. 3d at ___, ___.
Hubbard's

argument

raised

issues

of

statutory

interpretation and the sufficiency of the evidence. The Court
of Criminal Appeals alternatively held that the evidence was
sufficient to prove that the compensation exclusion did not
apply.
We

Id. at ___, ___.
first

exclusion's

address
third

the

meaning

element,

which

of

the

requires

compensation
that

the

compensation be "under circumstances which make it clear that
the thing is provided for reasons unrelated to the recipient's

37

 1180047
public service as a public official or public employee."

We

then apply our interpretation of this element to the facts of
this case.
a. Meaning of compensation exclusion's "unrelated" element
We review issues of statutory interpretation de novo.

Ex

parte Kennemer, 280 So. 3d at 370. "'Absent any indication to
the contrary, the words [of a statute] must be given their
ordinary and normal meaning.'" Ex parte Ankrom, 152 So. 3d at
409 (quoting Walker v. State, 428 So. 2d at 141).
As previously noted, the compensation exclusion carves
out from the definition of "thing of value" certain types of
compensation that are earned "under circumstances which make
it clear that the thing is provided for reasons unrelated to
the recipient's public service as a public official or public
employee."

§

36-25-1(34)b.10.

Hubbard

argues

that

this

restrictive language should be interpreted as precluding only
compensation to an official as quid pro quo for exercising his
or her official governmental power.

Without question, the

language clearly shuts out from the scope of the exclusion all
quid pro quo exchanges.

Yet, on its face, the language is

much broader than that.

To come within the language of the

38

 1180047
exclusion, the compensation must be "for reasons unrelated to"
the official's public "service," and that unrelatedness must
be "clear" from the "circumstances."

Plainly, the kinds of

compensation shut out by this element of the exclusion are not
limited to quid pro quo exchanges.
In support of his quid pro quo reading, Hubbard relies on
Ethics Commission Advisory Opinion No. 2018-08.

There, the

Ethics Commission advised that an off-duty police officer
could obtain a job performing private security work, as long
as the officer did not provide or promise the employer any
favorable

police

treatment

to

obtain

the

job.

Hubbard

contends that, like the officer, his skills and expertise made
him desirable to hire, and the fact that those skills and
expertise

were

also

used

in

his

public

service

did

not

disqualify his consulting contracts from the compensation
exclusion.
But that is not the question the Ethics Commission was
addressing in Advisory Opinion No. 2018-08.

Rather, the

Commission was addressing whether the officer's off-duty work,
which he could also have performed while on duty, violated the
Ethics Code's separate prohibition of using public property

39

 1180047
for private benefit. See § 36-25-5(c) ("No public official or
public employee shall use or cause to be used equipment,
facilities, time, materials, human labor, or other public
property under his or her discretion or control for the
private benefit or business benefit of the public official,
public employee, [or] any other person ....").

Because the

person who requested the ethics opinion apparently did not
specify that the employer was a lobbyist or principal, the
Commission had no occasion to address the Ethics Code's
prohibition of receiving a thing of value from a lobbyist or
principal (§ 36-25-5.1(a)) or the compensation exclusion from
the definition of a "thing of value" (§ 36-25-1(34)b.10).
Therefore, Advisory Opinion No. 2018-08 has no bearing on our
interpretation of the compensation exclusion.
Similarly, Hubbard misplaces reliance on another Ethics
Commission opinion, Advisory Opinion No. 2018-09.

There, the

Commission applied a 10-factor "test" to advise a public
employee whether his proposed post-retirement employment by a
principal would come within the compensation exclusion. After
that multi-factor discussion, the Commission noted that the
employee had not "leverage[d]" his public position to obtain

40

 1180047
the

employment

or

engaged

in

quid

pro

quo

corruption.

However, those latter conclusory comments were apparently
based on the per se prohibition of quid pro quo corruption in
§ 36-25-7, not on the compensation exclusion.
n.2.

See id. at 6 &

It does not appear that the Commission conflated the

third element of the compensation exclusion with the concept
of "leveraging" or quid pro quo, as Hubbard would have us do.
Hubbard similarly contends that this element of the
compensation exclusion allows compensation that is based on an
official's "status" but not compensation in exchange for his
or her "service."

However, that is not the distinction drawn

by the plain language of § 36-25-1(34)b.10. The statute
instead distinguishes between compensation that is clearly
unrelated to public service and compensation that is not.
In light of the plain language of the third element of
the compensation exclusion and Hubbard's failure to convince
this Court that it means anything other than what it says, we
reject his reading of it as shutting out only quid pro quo
exchanges.

Instead, we hold that, to meet this element of the

compensation exclusion, the compensation must be provided
solely for reasons unrelated to the official's or employee's

41

 1180047
public service, and that unrelatedness must be clear from the
circumstances of the compensation. 12
We recognize that this interpretation of the statutory
language could result in shutting out from the compensation
exclusion some forms of private employment or advertising that
might otherwise be assumed innocuous. To the extent that that
result may be in tension with perceived public policy, any
remedy lies with the legislature, not the courts.

We are not

at liberty to ignore or adjust the plain meaning of the
statute. Morgan Cty. Comm'n v. Powell, 292 Ala. 300, 310, 293
So. 2d 830, 839 (1974).
b. Application to this case
In

light

of

our

interpretation

of

the

compensation

exclusion, we must determine whether the State presented
evidence that Hubbard's consulting payments were not earned
"under circumstances which make it clear that the [payments
were] provided for reasons unrelated to [Hubbard's] public
12

Hubbard also argues that, if we do not accept his
interpretation of the compensation exclusion, then the
exclusion is unconstitutionally vague. But a statute can be
unconstitutionally vague only if its meaning is not plain, see
Ex parte Hicks, 153 So. 3d 53, 65-66 (Ala. 2014), and we have
determined that the meaning of the exclusion is plain as
applied to counts 6 and 10. Thus, we need not further address
Hubbard's vagueness argument.
42

 1180047
service" -- in other words, whether the State presented
evidence that the payments were provided for reasons related
to his public service.

In reviewing the sufficiency of the

evidence, we determine whether, at the time the motion for a
judgment of acquittal was made, the evidence supported a
reasonable inference of guilt, viewing the evidence in the
light most favorable to the State.

Ex parte Burton, 783 So.

2d at 890-91.
The State presented evidence that Edgenuity's and APCI's
payments to Hubbard were provided for reasons related to his
public service. Edgenuity executive Humphrey stated in an email that Hubbard "can get [Edgenuity] in front of any speaker
in the country regardless of party....but way more influence
with the R[epublican]s."

Humphrey also wrote: "Mike is the

current Speaker of the House in Alabama....my thought in using
him would be for intros into House and Senate leadership in
states where we do not have lobby support ...."

Paralegal

Freeman responded that Hubbard "could speak on [Edgenuity's]
behalf ... at regional/national political party conferences
... or ... meetings with his elected colleagues in other
states."

43

 1180047
Likewise, APCI president Hamrick testified that APCI
hired Hubbard because, "[b]eing Speaker of the House in
Alabama, he ... knew the Speakers and Legislators from other
states."

In addition, when given an opportunity to support

legislation granting APCI a monopoly in Alabama, Hubbard, in
Hamrick's words, "champion[ed]" -- and voted for -- that
legislation.13
Hubbard contends that the payments for his consulting
work could not have been related to his public service because
APCI

and

Edgenuity

hired

him

to

work

outside

Alabama.

However, the language of the compensation exclusion does not
support a per se distinction between work inside and outside

13

Hubbard argues that his legislative work in support of
APCI cannot be considered evidence to support his conviction
on count 6 because, he asserts, the State agreed at trial that
it was not charging him with engaging in a quid pro quo. But
Hubbard cites merely comments by the State in an objection
and a question during tangentially related testimony of
witnesses. The State did not enter into a stipulation that
the APCI-legislation matter could not be considered as
evidence in support of count 6. Nor did Hubbard request a
limiting instruction or jury instruction to that effect. Cf.
Rule 105, Ala. R. Evid. ("When evidence which is admissible
... for one purpose but not admissible ... for another purpose
is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury
accordingly."). Thus, the jury was free to consider Hubbard's
support of the legislation in determining whether Hubbard was
guilty on count 6.
44

 1180047
Alabama.

Cf. Ethics Commission Advisory Opinion No. 2016-27,

at 6 (advising that a compensation-exclusion analysis must be
undertaken even if work is to be performed outside Alabama);
Ethics Commission Advisory Opinion No. 97-25 (advising that
certain other Ethics Code provisions applied to consulting
work both inside and outside Alabama).

And even if such a

distinction existed, it would not affect count 6 because
Hubbard supported APCI's legislation within Alabama.
Therefore, the State presented evidence sufficient to
prove that the compensation exclusion did not apply to APCI's
and Edgenuity's payments to Hubbard. Accordingly, we affirm
the Court of Criminal Appeals' judgment as to Hubbard's
convictions on counts 6 and 10.
C. Consulting payments from Capitol Cups, Inc. (count 11)
Hubbard was convicted on one count of using his official
position for personal gain in violation of § 36-25-5(a), Ala.
Code 1975.

This count was based on Hubbard's conduct while

promoting products of another company from which he received
payments for consulting work, Capitol Cups, Inc. ("Capitol
Cups").

45

 1180047
1. Facts relating to count 11
Robert Abrams, an inventor from the State of New York,
was the majority owner of several businesses operating in Lee
County,

Alabama.

One

of

the

businesses,

manufactured insulated plastic cups.

Capitol

Cups,

Abrams and Hubbard

occasionally met for breakfast when Abrams was in Alabama.
Hubbard told Abrams that he had ideas about companies that
might be interested in Capitol Cups' products.

As a result,

Hubbard and Abrams signed a consulting contract under which
Capitol Cups would pay Auburn Network $10,000 per month.

The

contract was for one year and would be automatically renewed
annually unless terminated by one of the parties.

Hubbard

received $220,000 from Capitol Cups between October 2012 and
July 2014.
In performing his role under the contract, Hubbard emailed two of his contacts at Publix Super Markets, Inc.
("Publix"), asking if they could arrange a meeting with
Capitol Cups.

Hubbard identified Capitol Cups as "a company

here in Auburn (my district)" "that employs several hundred
people."

At the bottom of the e-mail, Hubbard identified

himself as "Rep. Mike Hubbard[,] Speaker of the House[,]

46

 1180047
Alabama House of Representatives."

Hubbard did not disclose

that he was a paid consultant of Capitol Cups.

One of the e-

mail recipients forwarded it to another Publix employee,
identifying Hubbard only as "the Speaker of the House of the
Alabama State House of Representatives" who "sent the email
below on behalf of a constituent of his."
2. Discussion regarding count 11
The

Ethics

Code

subsection

under

which

Hubbard

was

convicted provides:
"No public official or public employee shall use or
cause to be used his or her official position or
office to obtain personal gain for himself or
herself, or family member of the public employee or
family member of the public official, or any
business with which the person is associated unless
the use and gain are otherwise specifically
authorized by law."
§ 36-25-5(a), Ala. Code 1975 (emphasis added). Thus, on count
11, the State was required to prove (1) that Hubbard was a
public official or public employee (2) who used or caused to
be used his official position or office (3) to obtain personal
gain (4) for himself, a family member, or a business with

47

 1180047
which he was associated, and (5) that he did so intentionally
(see § 36-25-27(a)(1)). 14
Hubbard challenges the second and third elements, arguing
that the evidence at trial was insufficient to prove that he
used

his

official

position

to

obtain

personal

gain.

Specifically, he posits that the State presented no evidence
that he used his position as Speaker of the House to obtain
the consulting contract with Capitol Cups or to increase his
compensation under that contract.

The Court of Criminal

Appeals concluded that the State presented evidence sufficient
to support this count.

Hubbard v. State, ___ So. 3d at ___-

___.
We first interpret the statutory language "use or cause
to be used his or her official position or office to obtain
personal gain" in the context of Hubbard's argument here.

We

then apply our interpretation to the evidence presented.

14

In this case, there is no dispute that Hubbard's conduct
and compensation were not "otherwise specifically authorized
by law." Thus, we need not address whether that proviso in
the statute constitutes an element of the offense or a matter
of defense.
48

 1180047
a. Meaning of use of official position
to obtain personal gain
We review issues of statutory interpretation de novo. Ex
parte Kennemer, 280 So. 3d at 370. "'Absent any indication to
the contrary, the words [of a statute] must be given their
ordinary and normal meaning.'"

Ex parte Ankrom, 152 So. 3d at

409 (quoting Walker v. State, 428 So. 2d at 141).

G i v e n

Hubbard's argument, we must decide whether the statutory
language "use ... his ... official position ... to obtain
personal gain" is plainly limited to conduct used to obtain a
contract or to increase compensation, or whether it also
plainly

includes

conduct

in

performance

of

a

fixed-

compensation contract. 15
Two considerations persuade us that the latter is the
correct interpretation.

First, although a contract may set a

party's compensation at a fixed periodic amount, if that party

15

For purposes of our discussion, a "fixed-compensation
contract" is a contract under which the amount of compensation
is not expressly correlated to performance (e.g., not
commission-based compensation). See, e.g., Wellborn v. Buck,
114 Ala. 277, 281, 21 So. 786, 788 (1897) ("In this case there
was ... an actual, subsisting engagement for the rendition of
services at a fixed compensation ...."); Hughes v. Jefferson
Cty. Bd. of Educ., 370 So. 2d 1034, 1036 (Ala. Civ. App. 1979)
("The Board has the authority to enter into contracts of
employment with teachers for fixed compensation.").
49

 1180047
materially fails to perform his or her contractual duties at
any time during the life of the contract, then ordinarily the
other party may terminate the contract, see Edwards v. Allied
Home Mortg. Capital Corp., 962 So. 2d 194, 207 (Ala. 2007).
Thus, an official's performance under such a contract may be
"use[d] ... to obtain [further] personal gain" in the form of
continued performance (payment of compensation) by the other
party.
Second, if a contract leaves open the possibility that it
will be renewed (as here), then a party's performance may
persuade the other party to renew the contract. Therefore, an
official's performance under such a contract may be for the
purpose of "obtain[ing further] personal gain" in the form of
a renewal of the contract.
For these reasons, we hold that the language "use or
cause to be used his or her official position or office to
obtain personal gain" plainly includes an official's conduct
in performance of a fixed-compensation contract. 16

16

Because we conclude that the meaning of the statute is
plain, we need not address Hubbard's alternative argument that
the statute is unconstitutionally vague. See Ex parte Hicks,
153 So. 3d 53, 65-66 (Ala. 2014).
50

 1180047
Hubbard posits various hypothetical scenarios in which he
argues that, under our plain-language reading, § 36-25-5(a)
would criminalize otherwise innocent conduct.

To the extent

that the plain meaning of the statute may be at odds with
Hubbard's view of public policy, that is a matter for the
legislature;
statute.

this

Court

is

without

power

to

change

the

See Ex parte Hicks, 153 So. 3d 53, 63 (Ala. 2014).

We note, too, that criminalization of otherwise noncriminal
conduct is the ordinary function of much criminal statutory
law.

Cf. State v. Southern Express Co., 200 Ala. 31, 37, 349

So. 343, 349 (1917) ("[T]he state [has power] to create and
define as a crime the mere doing of an act which but for the
statute

would

be

innocent

of

offense.").

This

kind

of

criminalization would at least not be unexpected from an
Ethics Code that was designed to thwart corruption with
prophylactic measures.
b. Application to this case
We

must

next

determine

whether

the

State

presented

evidence that Hubbard "use[d] ... his ... official position
...

to

obtain

personal

gain"

by

using

that

position

performing his consulting contract with Capitol Cups.

51

in
In

 1180047
reviewing

the

sufficiency

of

the

evidence,

we

determine

whether, at the time the motion for a judgment of acquittal
was made, the evidence supported a reasonable inference of
guilt, viewing the evidence in the light most favorable to the
State.
As

Ex parte Burton, 783 So. 2d at 890-91.
noted

above,

when

Hubbard

e-mailed

his

Publix

contacts, he identified himself as a state legislator and as
Speaker of the House of Representatives.

He identified

Capitol Cups simply as a company in his district, without
disclosing his paid-consultant relationship with the company.
And the success of that impression -- that he was contacting
Publix merely as a legislator on behalf of a constituent -was confirmed by Publix personnel's subsequent internal e-mail
describing Hubbard's request.
conclude

that

the

State

In view of this evidence, we

presented

evidence

that

Hubbard

"use[d]" his "official position" of legislator and Speaker in
performance of the Capitol Cups contract. 17

17

Hubbard also engaged in efforts to promote sales of
Capitol Cups' products to the Chick-fil-A and Waffle House
restaurant companies. Because we conclude that the evidence
relating to Hubbard's communication with Publix was sufficient
to support this offense, we need not address Hubbard's efforts
relating to Chick-fil-A and Waffle House.
52

 1180047
Therefore, the evidence was sufficient to support the
jury's conclusion that Hubbard "use[d] ... his ... official
position or office to obtain personal gain."

Accordingly, we

affirm the Court of Criminal Appeals' judgment as to Hubbard's
conviction on count 11.
D. Work regarding CSP Technologies, Inc., patent (count 14)
Hubbard

was

convicted

on

one

count

of

using

public

property for private benefit in violation of § 36-25-5(c),
Ala. Code 1975.

This count was based on Hubbard's using his

chief of staff's time to assist with finalizing a patent owned
by a company controlled by Robert Abrams, while Hubbard was
receiving consulting payments from Abrams's company Capitol
Cups.
1. Facts relating to count 14
In

2013,

a

company

controlled

by

Abrams,

CSP

Technologies, Inc. ("CSP"), had been in patent litigation for
over 10 years.

CSP received notice that the United States

Patent and Trademark Office ("USPTO") had approved a patent
that would resolve several issues in the litigation.

The

patent would not be official, however, until it was issued by
the

Government

Printing

Office

53

("the

Printing

Office").

 1180047
Abrams contacted the Printing Office and was told that,
because of staff shortages, the Printing Office did not know
where the patent was.

By then, CSP had spent more than $12

million in legal fees on the litigation.
Abrams asked Hubbard if he knew anyone who could help
speed up the issuance of the patent.
a

Congressman

from

Mississippi

Hubbard discovered that

sat

on

committee with oversight of the USPTO.

the

Congressional

Accordingly, Hubbard

turned to his chief of staff, Josh Blades, who had connections
in Mississippi. Blades contacted the Congressman's staff, who
put Blades in contact with a USPTO employee, Talis Dzenitis.
Despite

their

best

efforts,

however,

neither

Blades

nor

Dzenitis could speed up the issuance of the patent.
During

this

process,

Hubbard

occasionally

Blades to check on the status of the patent.

telephoned
On one such

occasion, Hubbard said he "had 100,000 reasons to get this
done."

That comment was made shortly after Hubbard had

received his 10th $10,000 check from Capitol Cups.

Blades

testified that, although he did not know about the Capitol
Cups contract, Hubbard's comment made Blades uncomfortable
because he immediately thought Hubbard meant money in some

54

 1180047
form.

Later, Blades told Hubbard that he had done all he

could to push the project along and that Hubbard might need to
handle it from that point.

Hubbard personally contacted

Dzenitis, and, shortly thereafter, the patent was issued.
2. Discussion regarding count 14
The

Ethics

Code

subsection

under

which

Hubbard

was

convicted provides:
"No public official or public employee shall use or
cause to be used equipment, facilities, time,
materials, human labor, or other public property
under his or her discretion or control for the
private benefit or business benefit of the public
official, public employee, any other person, or
principal campaign committee as defined in Section
17-22A-2[, Ala. Code 1975], which would materially
affect his or her financial interest, except as
otherwise provided by law or as provided pursuant to
a lawful employment agreement regulated by agency
policy. ..."
§ 36-25-5(c), Ala. Code 1975 (emphasis added). Thus, on count
14, the State was required to prove (1) that Hubbard was a
public official or public employee (2) who used or caused to
be used (3) public time or human labor under his discretion or
control, (4) for his private benefit that would materially

55

 1180047
affect

his

financial

interest,

and

(5)

that

he

did

so

intentionally (see § 36-25-27(a)(1)). 18
Hubbard challenges the State's case as to the fourth
element, arguing that the State failed to present evidence
that Blades's patent-related work "would materially affect
[Hubbard's]

financial

interest."

Specifically,

Hubbard

contends that there was no evidence that Blades's work enabled
Hubbard to obtain the contract with Capitol Cups initially or
that it had an effect on the longevity of that consulting
relationship.

The Court of Criminal Appeals held that the

evidence was sufficient to support this count.

Hubbard v.

State, ___ So. 3d at ___-___.
In

reviewing

the

sufficiency

of

the

evidence, we

determine whether, at the time the motion for a judgment of
acquittal

was

made,

the

evidence

supported

a

reasonable

inference of guilt, viewing the evidence in the light most
favorable to the State.

Ex parte Burton, 783 So. 2d at 890-

91. As previously discussed, it is a fundamental principle of

18

Hubbard does not contend that his conduct was "as
otherwise provided by law or as provided pursuant to a lawful
employment agreement regulated by agency policy." Thus, we
need not address whether that statutory proviso constitutes an
element of the offense or a matter of defense.
56

 1180047
corporate law that entities are separate legal persons from
their owners. Therefore, the fact that a public official uses
public property to serve the interests of an entity, and also
receives a financial benefit from another entity owned by the
person who owns the first entity, does not necessarily mean
that the official's use of public property is "for private
benefit" that "would materially affect his ... financial
interest."

In other words, mere common ownership, standing

alone, is not per se sufficient to support the fourth element
of this offense.

Ordinarily, there must be something else to

connect the two entities -- in the circumstances, in the
financial arrangements, or in the statements of the persons
involved.
Here, that "something else" was present in the words of
Hubbard himself.

Shortly after Hubbard received a 10th

$10,000 check from Capitol Cups, he telephoned Blades about
the CSP patent-related work and said that he had "100,000
reasons to get this done."

Indeed, something about the way

Hubbard said it gave Blades the impression that Hubbard was
referring to money.

From this evidence, the jury could

reasonably have concluded that Hubbard saw the CSP patent work

57

 1180047
as directly connected to his Capitol Cups payments. It was not
necessary for the State to show that the patent work convinced
Capitol Cups to hire Hubbard initially or that the patent work
actually affected the longevity of that relationship. Rather,
to overcome the legal implications of separate corporate
identities, it was sufficient for the State to show that
Hubbard understood the CSP patent work to be on the basis of,
and in furtherance of, his payments from Capitol Cups.
Thus, the State's evidence was sufficient to support the
jury's conclusion that Hubbard used Blades's time and labor
"for

[Hubbard's]

private

benefit"

that

affect his ... financial interest."

"would

materially

Accordingly, we affirm

the Court of Criminal Appeals' judgment as to Hubbard's
conviction on count 14.
E. Representing SiO2 Medical Products, Inc., before
executive branch (counts 12-13)
Hubbard was convicted on two counts of representing, for
compensation, a business entity before an executive department
or agency, in violation of § 36-25-1.1, Ala. Code 1975. These
counts

were

based

on

Hubbard's

obtaining

meetings

with

executive-branch officials on behalf of SiO2 Medical Products,

58

 1180047
Inc.

("SiO2"),

another

Abrams-controlled

company,

while

Hubbard was receiving consulting payments from Capitol Cups.
1. Facts relating to counts 12-13
Abrams owned another business, SiO2, that manufactured
vials for biotechnological drugs.

The vials were required to

be manufactured in a sterile environment, which required
special employee training. Thus, Abrams began seeking funding
from the Alabama government to build a training center.
Abrams learned that another company had obtained funding
for a training center from a fund controlled by the Governor.
Accordingly, Abrams asked Hubbard to help set up a meeting
with

then

legislative

Governor
executive

Robert

Bentley.

assistant

Hubbard

arrange

two

had

his

meetings

for

Abrams -- one with then Governor Bentley and the other with
Secretary of Commerce Greg Canfield.

At that time, Hubbard

was receiving payments under his consulting contract with
Capitol Cups.
2. Discussion regarding counts 12-13
The Ethics Code section under which Hubbard was convicted
provides:
"No member of the Legislature, for a fee,
reward, or other compensation, in addition to that
59

 1180047
received in his or her official capacity, shall
represent any person, firm, corporation, or other
business entity before an executive department or
agency."
§ 36-25-1.1, Ala. Code 1975.

Thus, the State was required to

prove (1) that Hubbard was a member of the legislature (2) who
represented a person, firm, corporation, or other business
entity (3) before an executive department or agency (4) for a
fee, reward, or other compensation (in addition to that
received in his official capacity), and (5) that he did so
intentionally (see § 36-25-27(a)(1)).
Hubbard challenges the fourth element, arguing that the
State failed to present evidence that he arranged the SiO2
meetings

with

executive-branch

officials

compensation he received from Capitol Cups.

"for"

the

That is, he

contends that there was no evidence of a connection between
his representation of SiO2 and his compensation from Capitol
Cups.19

The Court of Criminal Appeals held that the State

presented sufficient evidence to support these counts. Hubbard
v. State, ___ So. 3d at ___-___.

19

Hubbard does not argue that his arranging of meetings
was not "represent[ation]" of SiO2. Therefore, we need not
address whether the evidence supported the second element of
the offense.
60

 1180047
In

reviewing

the

sufficiency

of

the

evidence,

we

determine whether, at the time the motion for a judgment of
acquittal

was

made,

the

evidence

supported

a

reasonable

inference of guilt, viewing the evidence in the light most
favorable to the State.
91.

Ex parte Burton, 783 So. 2d at 890-

Under § 36-25-1.1, the fourth element of this offense

requires

that

the

legislator's

nonofficial compensation.

representation

be

"for"

In this context, "for" plainly

carries the sense of "in exchange for." See Merriam-Webster's
Collegiate Dictionary 488 (11th ed. 2003) (listing part of
definition

8a of

"for"

as "a function

word

to

indicate

equivalence in exchange <$10 [for] a hat>"). Logically, then,
this reference in the statute to an exchange requires evidence
of

a

causal

compensation.
analysis

of

link

between

the

representation

and

the

Moreover, as we similarly emphasized in our
count

14,

mere

common

ownership

of

the

two

companies involved is not sufficient to establish such a link.
Here, the State's evidence was sufficient to support an
inference of a causal link between Hubbard's compensation from
Capitol Cups and his arranging meetings with executive-branch
officials for SiO2.

As we discussed in the context of count

61

 1180047
14, shortly after having received $100,000 from Capitol Cups,
an Abrams-controlled company, Hubbard told Blades that he had
"100,000 reasons" to secure a patent for CSP, another Abramscontrolled company.
reasonably

From this evidence, the jury could

have inferred that Hubbard was willing to do

whatever was necessary to assist companies controlled by
Abrams, on the basis of, and in furtherance of, the payments
from Capitol Cups.

Thus, the jury could reasonably have

concluded that Hubbard's arranging of meetings between SiO2
and

executive-branch

officials

was

motivated

by

his

compensation from Capitol Cups, providing the causal link
between the representation and the compensation.
Therefore, the State presented evidence sufficient to
support the jury's conclusion that Hubbard represented a
corporation before an executive department or agency "for"
nonofficial compensation. Accordingly, we affirm the Court of
Criminal Appeals' judgment as to Hubbard's convictions on
counts 12 and 13.
III. Conclusion
Our role as Justices is not to praise or question the
wisdom of the Ethics Code or to reprove or excuse Hubbard's

62

 1180047
behavior.

We must interpret and apply the law.

And every

person accused of breaking the law -- even one who had a hand
in creating that law -- is entitled to (and bound by) the same
rules of legal interpretation.

When charged with a crime,

public officials must be treated no better -- and no worse -than other citizens in this State where all are guaranteed
equal justice under law.
We affirm the judgment of the Court of Criminal Appeals
as to counts 6, 10, 11, 12, 13, and 14.

We reverse the

judgment as to counts 16, 17, 18, 19, and 23 and remand this
case to the Court of Criminal Appeals for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Mendheim and Stewart, JJ., concur.
Parker, C.J., concurs specially.
Bolin, Wise, and Bryan, JJ., concur in part and concur
in the result in part.
Sellers, J., concurs in part and dissents in part.
Shaw and Mitchell, JJ., recuse themselves.

63

 1180047
PARKER, Chief Justice (concurring specially).
I

write

specially

to

address

the

definition

"principal" in § 36-25-1(24), Ala. Code 1975.

of

I would go

further than the main opinion and hold that, as a matter of
law, the phrase "person or business which employs, hires, or
otherwise
directors,

retains

a

officers,

lobbyist"

does

employees,

not

or

include

other

owners,

individuals

associated with a corporate entity if the lobbyist represents
the entity and not the individual personally.
Alabama's

"Code

of

Ethics

for

Public

Officials,

Employees, Etc.," §§ 36-25-1 to -30 ("Ethics Code"), defines
a "principal" as "[a] person or business which employs, hires,
or otherwise retains a lobbyist."

§ 36-25-1(24).

Michael

Gregory Hubbard argues that this definition plainly refers
only to a person or corporate entity that hires a lobbyist to
lobby

on

behalf

of

that

person

or

entity

and

that

the

definition does not include individuals associated with such
an entity.

In support, Hubbard contends that the language of

the definition assumes a contractual relationship between the
principal and lobbyist and that that relationship is absent
between a lobbyist and an individual corporate agent.

64

 1180047
The

State,

by

contrast,

argues

that

the

definition

plainly includes associated individuals if they participate in
hiring or supervising the entity's lobbyist.
State

points

out

that

a

person

In support, the

responsible

for

hiring

employees of an entity is commonly said to "hire" those
employees.

For example, a law firm's hiring partner is

commonly said to "hire" associates, even though the associates
sign a contract with the firm.
The State relies on Ex parte Hicks, 153 So. 3d 53 (Ala.
2014), in which this Court observed that the word "child" in
§ 26-15-3.2(a), Ala. Code 1975, plainly "'encompass[ed] all
children -- born and unborn.'"

Id. at 59 (quoting Ex parte

Ankrom, 152 So. 3d 397, 411 (Ala. 2013)).

But there is a

crucial distinction between Hicks and this case.

Here,

Hubbard presents a facially reasonable interpretation of the
definition of "principal," based on the underlying question of
who can properly be said to have legally "employ[ed], hire[d],
or otherwise retain[ed]" a corporate lobbyist.

In contrast,

the Hicks defendant's interpretation of "child," as excluding
unborn children, was patently not a reasonable one.
59-60.

65

Id. at

 1180047
Unlike in Hicks, here each party advances a plausible
reading of the statute, and neither is patently unreasonable.
See S & S Distrib. Co. v. Town of New Hope, 334 So. 2d 905,
907 (Ala. 1976) ("'A statute ... is ambiguous when it is
capable

of

being

understood

by

reasonably

well-informed

persons in either of two or more senses.'" (quoting State ex
rel. Neelen v. Lucas, 24 Wis. 2d 262, 267, 128 N.W.2d 425, 428
(1964)); Slagle v. Ross, 125 So. 3d 117, 136 (Ala. 2012)
(Shaw, J., concurring in result in part and dissenting in
part)

("The

[statute]

is

susceptible

to

at

least

two

reasonable interpretations; therefore, it is ambiguous ....").
Therefore,
ambiguous

I
as

would

hold

applied

to

the
this

definition
case

and

of

"principal"

proceed

to

apply

principles of statutory construction.
"Statutory language 'cannot be construed in a vacuum.'"
Sturgeon v. Frost, ___ U.S. ___, ___, 136 S. Ct. 1061, 1070
(2016) (quoting Roberts v. Sea-Land Servs., Inc., 566 U.S. 93,
101 (2012)).

When a statute is ambiguous, courts attempt to

construe its language within the broader context of general
principles

of

relationships.

law

governing

similar

persons,

things,

or

See 82 C.J.S. Statutes § 472 (2009) ("Each

66

 1180047
statute is to be construed in the context of the existing law
and

as

a

part

of

a

general

and

uniform

system

of

jurisprudence."); 73 Am. Jur. 2d Statutes § 91 (2012) ("[A]
statute ... is to be read in connection with[] the whole body
of

the

law.");

2B

Norman

J.

Singer

&

Shambie

Singer,

Sutherland Statutes and Statutory Construction § 50:1 (7th ed.
2012) ("[L]egislation is interpreted in the light of the
common law and the scheme of jurisprudence existing at the
time of its enactment."); id. § 53:3 ("[I]nterpretation of a
doubtful statute may be influenced by the language of other
statutes which are not specifically related, but which apply
to similar persons, things, or relationships.").

Thus, in

this context of corporate entities, employees, and lobbyists,
our construction of the words "person or business which
employs, hires, or otherwise retains a lobbyist" must be
informed by general principles of law regarding corporate
action.
As the main opinion recognizes, a fundamental principle
of corporate law is that a corporate entity has a legal
identity separate from its owners, directors, officers, and
employees.

As explained in the very first section of a

67

 1180047
standard corporate-law treatise, "[a] corporation is a form of
business

association,

having

the

rights,

relations,

and

characteristic attributes of a legal entity distinct from that
of the persons who compose it or act for it in exercising its
functions."

1 Fletcher Cyclopedia of the Law of Corporations

§ 1 (2015) (emphasis added). As Howard P. Walthall, professor
of business law at Cumberland School of Law, puts it:
"The [Alabama] Business Code treats business
corporations as jural entities that exist separate
and apart from those persons, such as shareholders,
officers, and directors, whose activities are
channeled through the entity ....
"... [U]pon the commencement of corporate
existence, ... a new legal being comes into
existence. And that new legal being ... is separate
and distinct from those who act through it ...."
Brief of Howard P. Walthall as amicus curiae, at pp. 6-7.
This

distinction

associated

with

business code.

between
them

is

entities
embedded

and

natural

throughout

our

persons
State's

See, e.g., §§ 10A-2-8.30(d) (director of

corporation not personally liable for performance of official
duties in compliance with Code section) and 10A-2-8.42(d)
(same for officers), Ala. Code 1975.
As a corollary to this distinction, another important
principle is that corporate agents do not ordinarily act on
68

 1180047
their own behalf, but rather act on behalf of the entity they
represent.

See 19 C.J.S. Corporations § 673 (2018) ("The

agent of a corporation stands in place of the corporation
itself in the line of his or her assigned duties, and any acts
within his or her authorized employment are the acts of the
corporation

...."

(footnote

omitted));

18B

Am.

Jur.

2d

Corporations § 1310 (2015) ("A corporate entity and its agents
are not distinct parties for contracting purposes because the
corporation ... may only act through its officers, directors,
and agents."); In re Infocure Sec. Litig., 210 F. Supp. 2d
1331, 1359 (N.D. Ga. 2002) ("[It is basic corporation law
that,

i]f

a

corporate

officer

acts

on

behalf

of

the

corporation, then he is not considered to be acting in his
individual

capacity,

unless

so

stated.").

As

Professor

Walthall observes, "a corporate officer ... carrying out his
or her duties ... is not acting on his or her own, but is
fulfilling a role within the separate corporate structure."
Walthall's amicus curiae brief, at p. 10.
A third relevant corporate-law principle is that, in
light of the second principle, a representative of an entity
is employed or contracted with by the entity itself, not the

69

 1180047
individual corporate agents who perform the function of hiring
or overseeing the representative.

See 1 Fletcher Cyclopedia

of the Law of Corporations § 29 ("[T]he corporation ... is the
employing party in an employment relationship.").
Taken

together,

these

principles

of

corporate

law

strongly suggest that, when an individual owner, director,
officer, or employee hires or oversees a corporate lobbyist,
the "person or business which employs, hires, or otherwise
retains [the] lobbyist" is the entity, not the individual.
The

State

attempts

to

sidestep

these

corporate-law

principles, arguing that an entity can act only through
individuals who act on its behalf.
misses the point.

Although that is true, it

Acts of individuals on behalf of an entity

are just that -- acts on behalf of the entity.

"[T]he acts of

[a] corporation's agents within their authorized employment
are the acts of the corporation."
the

Law

of

individuals

Corporations
do

the

§

hiring

275
and

2 Fletcher Cyclopedia of
(2014).
supervising

Thus,
of

although
corporate

lobbyists, that does not mean that those individuals thereby
become "principals" of those lobbyists.

70

 1180047
As an additional aid in construing an ambiguous statutory
definition, courts examine whether the legislature omitted
from the definition relevant language that the legislature
included in other statutory provisions.

See 2A Norman J.

Singer & Shambie Singer, Sutherland Statutes and Statutory
Construction § 46:6 (7th ed. 2019-2020 Supp.) ("Where a
legislature includes particular language in one section of a
statute but omits it from another section of the same or a
related act, it generally acts intentionally and purposely in
the disparate inclusion or exclusion."); 2B Singer, supra, §
51:2 ("[W]here a legislature inserts a provision in only one
of two statutes that deal with a closely related subject,
courts

construe

inadvertent.").

the

omission

as

Significantly,

deliberate
the

Ethics

rather
Code

than

defines

"lobbyist" to include certain subordinates of a lobbyist,
including "[a]n employee, a paid consultant, or a member of
the staff of a lobbyist."

§ 36-25-1(21)a.4, Ala. Code 1975.

As seen from that definition, if the Legislature had intended
"principal" to include an entity's individual agents who hire
or oversee a lobbyist, it knew how to do so.

The fact that

the Legislature did not suggests that such agents are not

71

 1180047
embraced by the definition of "principal." See City of Pinson
v. Utilities Bd. of Oneonta, 986 So. 2d 367, 373 (Ala. 2007)
("The legislature did not create such an exemption, even
though it has done so in the case of [a similar subject]. ...
'It is not proper for a court to read into the statute
something which the legislature did not include although it
could have easily done so.'").
The State, however, takes the converse position: If the
Legislature had intended to exclude corporate agents from the
definition of "principal," it would have done so expressly.
As examples of this kind of express exclusion, the State
points to Kentucky's and South Carolina's exclusions, from
their definitions of terms parallel to Alabama's "principal,"
of any "employee, officer, or shareholder of a person who
employs a lobbyist."

Ky. Rev. Stat. Ann. § 6.611(12); S.C.

Code Ann. § 2-17-10(14).

The State would have us infer that,

absent a similar exclusion here, the Legislature intended to
include these individuals.
I

am

not

persuaded

by

this

argument.

Courts'

interpretations of other states' statutes may have value,
particularly when our State's language has been borrowed from

72

 1180047
them.

See

73

Am.

Jur.

2d

Statutes

§

98

(2012)

("In

interpreting statutes, a court may consider similar provisions
in sister jurisdictions."); 82 C.J.S. Statutes § 486 (2009)
("When a statute is patterned after a statute of another
jurisdiction, whether state or federal, it is appropriate to
consider interpretations of the statute in the jurisdiction
from which it has been borrowed.").

Yet the text itself of

those statutes carries little interpretive relevance, in the
absence of such borrowing or other historical relationship
between those statutes and ours.

Here, there is no evidence

that

in

the

Alabama

Legislature,

defining

"principal,"

borrowed language from Kentucky or South Carolina but left out
their exclusions.

Compare Ky. Rev. Stat. Ann. § 6.611(12)

(2010) (defining "[e]mployer" primarily as "any person who
engages a legislative agent") and S.C. Code Ann. § 2-17-10(14)
(2010) (defining "[l]obbyist's principal" primarily as "the
person on whose behalf and for whose benefit the lobbyist
engages in lobbying and who directly employs, appoints, or
retains a lobbyist to engage in lobbying") with § 36-25-1(24),
Ala.

Code

business

1975
which

(defining
employs,

"principal"
hires,

73

or

as

"[a]

otherwise

person
retains

or
a

 1180047
lobbyist"). Rather, it appears that the legislatures of those
states simply chose to make explicit in their definitions what
seems to already be implicit in ours: a corporate agent is not
a "principal" of a corporate lobbyist.
For further help in construing an ambiguous statute,
courts consider how the statute has been interpreted by
government agencies.

Ex parte Chesnut, 208 So. 3d 624, 640

(Ala. 2016). This principle is especially applicable when the
relevant agency has been empowered to issue interpretive
opinions providing a "safe harbor" from liability for those
who comply with them.

Cf. United States v. Mead Corp., 533

U.S. 2018, 229-30 (2001). Here, the Alabama Ethics Commission
has been tasked with advising public officials and employees
on the meaning and application of the Ethics Code, including
issuing safe-harbor opinions.

See §§ 36-25-4(a)(9)-(10) and

36-25-4.2(a)-(b), Ala. Code 1975.
However, the Commission has not issued a permanent,
definitive opinion on whether "principal" includes corporate
agents

for

purposes

of

§

36-25-5.1(a)'s

prohibition

of

soliciting or receiving things of value from a principal.

As

the main opinion notes, the Court of Criminal Appeals, in

74

 1180047
holding that "principal" includes corporate agents, relied on
the following testimony of James Sumner, former director of
the Commission:
"'What we have always said is that, clearly the
person who signs on behalf of that business is a
principal. But there are others, decision makers,
who are officers.
And of those two, can be and
shall be, considered as principals as well. That
could be the officers.
It could be like an
executive committee of the company and -- and so
forth, and -- but it is -- for a company, it is
broader than just one individual.'"
Hubbard v. State, [Ms. CR-16-0012, Aug. 27, 2018] ___ So. 3d
___, ___ (Ala. Crim. App. 2018).
There are several problems with the Court of Criminal
Appeals' reliance on this testimony.

First, Sumner did not

identify any instance in which the Commission had publicly
interpreted

"principal"

decision-makers.

to

include

corporate

officers

or

The Commission's interpretation cannot be

established by testimony of an individual staff member without
some written pronouncement by the Commission.

See Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) ("We have
never applied the principle of [administrative deference] to
agency litigating positions that are wholly unsupported by
regulations,

rulings,

or

administrative

75

practice.

To

the

 1180047
contrary, we have declined to give deference to an agency
counsel's interpretation of a statute where the agency itself
has articulated no position on the question ...."); cf. State
v. Louisville & Nashville R.R., 398 So. 2d 288, 290 (Ala. Civ.
App. 1980) ("The failure of the [Department of Revenue] to
attempt to collect a tax does not establish a precedent nor
constitute an administrative ruling or interpretation absent
a formal ruling or order."), reversed on other grounds, Ex
parte Louisville & Nashville R.R., 398 So. 2d 291 (Ala. 1981).
Indeed, a private, unannounced understanding of Commission
staff would be a dubious basis for sustaining a criminal
conviction.

See United States v. Farley, 11 F.3d 1385, 1390

(7th Cir. 1993) ("Courts may not ... rely on unpublished
opinions of agency staff.").
Second,

Sumner's

testimony

that

the

Commission

has

"always said" that certain corporate agents are "principals"
is belied by the fact that the Commission does not consider
them "principals" under other portions of the Ethics Code. In
accordance

with

§§

36-25-18(b)(6)

and

36-25-19(a),

"principal[s]" must file reports and statements with the
Commission.

It is undisputed that the Commission has never

76

 1180047
required

individual

directors

or

officers

to

file

those

reports and statements.
Third,

even

if

Sumner's

testimony

were

an

accurate

statement of the Commission's interpretation, an executive
agency's interpretation of a statute is not binding on the
courts.
"[A] reviewing court will accord an interpretation
placed on a statute or an ordinance by an
administrative agency charged with its enforcement
great weight and deference. ... '[However], that
deference has limits. When it appears that the
agency's
interpretation
is
unreasonable
or
unsupported by the law, deference is no longer
due.'"
Chesnut, 208 So. 3d at 640 (quoting Alabama Dep't of Revenue
v. American Equity Inv. Life Ins. Co., 169 So. 3d 1069, 1074
(Ala. Civ. App. 2015)).

For the reasons discussed above,

Sumner's interpretation appears to be unsupported by law and
thus deserves little weight.
In
strongly

sum,

these

favor

principles

reading

the

of

Ethics

statutory
Code's

construction
definition

of

"principal" as encompassing only those persons and businesses
that are directly represented by a lobbyist. Accordingly, I
would hold that, as a matter of law, the phrase "person or
business

which

employs,

hires,
77

or

otherwise

retains

a

 1180047
lobbyist" does not include owners, shareholders, directors,
officers, employees, or other individuals associated with a
corporate entity if the lobbyist represents the entity and not
the individual personally. 20

20

I recognize that an individual owner, director, officer,
or employee could seek to evade the prohibition of § 36-255.1(a) by providing a thing of value to a public official and
later claiming that the thing was from the individual
personally rather than from the (principal) entity. However,
this policy concern is addressed by the obvious reality that
the capacity in which the individual provided the thing -personally versus as an agent of the entity -- will often be
a question of fact for a jury.
(Here, the State does not
argue that Will Brooke gave his employment assistance or
financial advice as an agent of the Business Council of
Alabama.) Beyond that, any policy concern about evasion is a
matter for the Legislature. It is not the function of the
courts to address such concerns by adopting an expansive
interpretation of "principal" that is not supported by the
above principles of construction.
78

 1180047
BOLIN, Justice (concurring in part and concurring in the
result in part).
I

fully

concur

in

the

holding

of

the

regarding counts 16, 17, 18, 19, and 23.

main

opinion

I concur in the

result only as to counts 6, 10, 11, 12, 13, and 14.
I agree with Chief Justice Parker's conclusion in his
special writing that the phrase "person or business which
employs, hires, or otherwise retains a lobbyist" in § 36-25-1
(24), Ala. Code 1975, does not include owners, shareholders,
directors,

officers,

employees,

or

other

individuals

associated with a corporate entity if the lobbyist represents
the entity and not the individual personally.

79

 1180047
BRYAN, Justice (concurring in part and concurring in the
result in part).
I

concur

to

affirm

the

Court

of

Criminal

Appeals'

judgment as to counts 6 and 10 and to reverse its judgment
affirming the convictions on counts 16 through 19 and count
23.

I concur in the result insofar as its judgment as to

counts 11 through 14 are affirmed.

I write specially to

express why I believe the convictions on count 6 and counts 10
through 14 must be affirmed.
I must begin by noting that I have serious concerns about
some of the language used in the current version of the
Alabama Ethics Code, § 36-25-1 et seq., Ala. Code 1975 ("the
Ethics Code"), some of which I find to be inexplicably broad
and somewhat confusing.

Thus, I encourage the legislature to

take immediate action to once again revise and clarify the
language of the Ethics Code.

However, after a thorough and

exhaustive review of the pertinent provisions of the Ethics
Code and the arguments presented by Michael Gregory Hubbard to
this Court, I can reach no other conclusion than that the
convictions on count 6 and counts 10 through 14 must be
affirmed.

Even under the most broad reading of the specific

provisions of the Ethics Code at issue in this case, the
80

 1180047
record contains several key facts that require me to conclude
that a reasonable juror, faced with the evidence that was
presented, could have found Hubbard guilty of violating the
Ethics Code as charged in count 6 and counts 10 through 14.
See Ex parte Burton, 783 So. 2d 887, 890-91 (Ala. 2000)
(noting that, when viewing the evidence in the light most
favorable to the State, as we must, we may consider only
whether the jury could have, by fair inference, found the
defendant guilty).
Specifically, in counts 6 and 10, for the reasons set
forth in the main opinion, the jury could have reasonably
concluded that the payments made to Hubbard by American
Pharmacy Cooperative, Inc. ("APCI"), and Edgenuity, Inc., were
provided for reasons related to Hubbard's public service.
Regarding Hubbard's contention that his employment agreements
with APCI and Edgenuity were for work performed out of state,
the jury could have concluded (1) that Hubbard performed work
for APCI in state and (2) that Hubbard actually knew and
understood that the work he was performing, even out of state,
was not allowed under the Ethics Code if the payments he was
receiving for that work were for reasons related to his public

81

 1180047
service.

For example, the jury could have concluded that

Hubbard was warned by Josh Blades, his chief of staff, not to
vote on legislation that would have greatly benefited APCI but
that Hubbard voted on the legislation anyway –- an action
obviously taken in the State of Alabama -- even after taking
actions that indicated that he knew that he should not vote on
the legislation.
James

Sumner,

In addition, the jury heard evidence from
former

director

of

the

Alabama

Ethics

Commission, indicating that Hubbard was repeatedly told that
he could not use his official position or "the mantle of his
office" to benefit himself or his business. Specifically,
Sumner testified that he instructed Hubbard that, even though
Hubbard was free to conduct business outside Alabama, he still
could not "use [his] position to benefit [him]self, [his]
business,

[or

reasonably

his]

inferred

family."
that

Thus,

Hubbard

the
knew

jury
that

could

have

receiving

compensation from APCI and Edgenuity for work related to his
official position as Speaker of the House of Representatives
–- whether in state or out of state -- was prohibited by the
Ethics Code.

82

 1180047
In counts 11 through 14, all of which involve Hubbard's
dealings

with

Robert

Abrams

and

Abrams's

businesses,

a

reasonable juror could have concluded that, when Hubbard told
Blades that he had "100,000 reasons" for Blades to secure a
copy of a patent for Abrams, which was shortly after Hubbard
received his 10th $10,000 check from Capitol Cups, Inc.,
Hubbard was expressing that he understood his arrangement with
Abrams to be that Abrams paid him $10,000 a month and that, in
return, Hubbard intended to use his position, or the time and
labor of his staff –- the power of his office -- to do things
that Abrams asked, such as obtain meetings in order to sell
Capitol Cups' products, set up meetings for Abrams with the
Governor and the Secretary of Commerce, and obtain a copy of
a patent for one of Abrams's businesses.
I really do not know how I would have decided this case
if I had been a Lee County juror tasked with hearing the
evidence presented and making a determination of Hubbard's
guilt or innocence.

However, I was not a Lee County juror in

this case and what I might have done if I had been a Lee
County juror sitting on this case is irrelevant for purposes
of deciding the issues presented to this Court at this time.

83

 1180047
At this point, my position as a Justice allows me to consider
only whether there was sufficient evidence from which the Lee
County jurors who did actually sit on this case could have
reasonably found Hubbard guilty. See Ex parte Burton, supra.
Based on the above facts, I cannot conclude that the jury's
verdict as to count 6 and counts 10 through 14 was not
supported by sufficient evidence.
Finally, although a jury could have found Hubbard guilty
of the crimes he was charged with in count 6 and counts 10
through 14, given my concerns about the current version of the
Ethics Code, I am not entirely convinced that the sentences
Hubbard received were the most appropriate form of punishment.
The length of Hubbard's sentences, in comparison to his
conduct, has been a concern since my initial consideration of
this case.

However, Hubbard did not challenge his sentences,

nor did he ask this Court to consider whether the jury should
have

been

instructed

on

misdemeanor

charges

rather

felonies. See § 36-25-27(a)(1) and (2), Ala. Code 1975.

than
In

light of the arguments that Hubbard did and did not present to
this Court and the standard of review that must be applied to
a judgment entered on a jury's verdict, I must conclude that

84

 1180047
the

Court

of

Criminal

Appeals

correctly

affirmed

convictions on count 6 and counts 10 through 14.
Wise, J., concurs.

85

his

 1180047
SELLERS, Justice (concurring in part and dissenting in part).
I concur with those parts of the main opinion reversing
the Court of Criminal Appeals' judgment as to counts 16, 17,
18, 19, and 23.

I dissent from those parts of the main

opinion affirming the judgment as to counts 6, 10, 11, 12, 13,
and 14.
From the outset, my review of this case has been based on
what I believe to be fundamental principles of criminal law.
Statutes imposing criminal penalties should be clear and
concise to give reasonable persons subject to the statute's
limitations on conduct fair notice of the penalty to be
exacted when a specific line is crossed and a law is violated.
See McBoyle v. United States, 283 U.S. 25 (1931), and Lanzetta
v. New Jersey, 306 U.S. 451 (1939).

If a law cannot be simply

understood, then any punishment for its violation would be
arbitrary and subject to speculation or, worse, prosecutorial
manipulation.

The law, especially as it relates to conduct

deemed criminal, requires clear rules, easily discernible so
that everyone can know with certainty what specific acts are
forbidden and the concomitant consequences.

86

 1180047
I am not convinced that all the statutes applied in this
case are clear and concise, and I am troubled by a strained
statutory interpretation that was aimed at finding criminal
conduct

on

the

part

of

specifically concerned

Michael

Gregory

Hubbard.

I

am

by the State's broad construction of

the term "principal" in § 36-25-1(24), Ala. Code 1975, a
statutory

definition

that

is

clearly

unambiguous.

That

statute defines a "principal" as a "person or business which
employs, hires, or otherwise retains a lobbyist."

As pointed

out in the main opinion, what qualifies a person or business
as a principal is the act of employing, hiring, or otherwise
retaining a lobbyist.

The State's interpretation of the term

broadens the definition to encompass individuals who were
never designated as principals and who had no personal or
direct involvement with the employing, hiring, or otherwise
retaining of lobbyists.

The Ethics Code, § 36-25-1 et seq.,

Ala. Code 1975, requires "principals" to register publicly.
The State's overly broad definition deems many people to be
principals who were never advised to register.

Those people

would be surprised to learn that they are principals under the
State's interpretation and have apparently violated the Ethics

87

 1180047
Code, subjecting themselves to potential criminal culpability
never imagined or intended.

In stretching the law in a

direction

the

never

intended

by

legislature,

violates core principles of criminal law.

the

State

I thus concur with

that part of main opinion holding that the term "principal"
does not include a member of the board of an entity that has
employed, hired, or otherwise retained a lobbyist, especially
when there is no evidence indicating that the member of the
board

was

involved

with

employing,

hiring,

or

otherwise

retaining the entity's lobbyist.
I dissent from that part of the main opinion affirming
the Court of Criminal Appeals' judgment as to counts 6 and 10,
soliciting or receiving a thing of value from a principal.
Section 36-25-1(34)b.10, Ala. Code 1975, exempts the following
from the definition of a "thing of value":
"Compensation and other benefits earned from a
non-government employer, vendor, client, prospective
employer, or other business relationship in the
ordinary course of employment or non-governmental
business activities under circumstances which make
it clear that the thing is provided for reasons
unrelated to the recipient's public service as a
public official or public employee."
I read the statute's reference to "public service" as the
exercise of an official's governmental authority.
88

In my

 1180047
opinion, compensation under the Ethics Code is not a "thing of
value" unless it is given in exchange for the recipient's use
of actual governmental power.

To hold otherwise would appear

to criminalize legitimate business arrangements in which parttime

legislators

routinely engage.

and

other

part-time

elected

officials

There are part-time officials who are

slightly compensated for their official duties, but who are
sustained by other employment and earn income outside their
governmental positions.

The State's interpretation of this

statute could call into question employment arrangements of
those officials and discourage qualified candidates who have
outside employment from seeking political office or part-time
government employment. Simply put, an elected official cannot
be compensated for the specific use of his or her public
office. Hubbard would have clearly violated § 36-25-1(34)b.10
had he used his office to advance legislative initiatives in
Alabama for which he was specifically compensated. Because we
are imposing a criminal penalty, we must strictly construe the
statute

and

resolve

any

ambiguity

in

favor

of

Hubbard.

Accordingly, I would reverse the Court of Criminal Appeals'
judgment as to counts 6 and 10.

89

 1180047
Further, I find the conviction under count 11, based on
an alleged violation of § 36-25-5(a), Ala. Code 1975, i.e.,
that Hubbard used his official position as Speaker of the
House of Representatives to obtain the consulting contract
with Capitol Cups, Inc., or to increase his compensation under
that contract, equally suspect.

Section 36-25-5(a) provides:

"No public official or public employee shall use or
cause to be used his or her official position or
office to obtain personal gain for himself or
herself, or family member of the public employee or
family member of the public official, or any
business with which the person is associated unless
the use and gain are otherwise specifically
authorized by law. ..."
The evidence indicated that Hubbard sent two e-mails to
a contact at Publix Super Markets, Inc., telephoned a contact
for

Waffle

House

restaurants,

and

visited

Chick-fil-A's

corporate headquarters in route to an official meeting.

The

evidence proved that Hubbard's efforts were futile and that
none of the companies he solicited actually agreed to purchase
Capitol Cups' product.

Moreover, the evidence demonstrated

that Capitol Cups entered into the consulting contract with
Hubbard, not because he was Speaker of the House, but because
he had experience in college athletics and sports media.
Thus, I do not believe the evidence was sufficient to support
90

 1180047
a conclusion that Hubbard used his official position or office
to obtain the consulting contract with Capitol Cups.

I also

do not believe the evidence was sufficient to support a
conclusion that, after obtaining the contract, Hubbard used
his official position or office to increase his personal gain.
He had already obtained the consulting contract because of his
nongovernment experience.

None of the direct communications

at issue resulted in any of the proposed vendors contracting
to purchase any cups or in any specific gain to Hubbard.

For

these reasons, I dissent from that part of the main opinion
affirming the Court of Criminal Appeals' judgment as to count
11.
I further dissent from those parts of the main opinion
affirming the Court of Criminal Appeals' judgment as to counts
12 and 13, because I find no support that Hubbard represented
SiO2 Medical Products, Inc., a company in his legislative
district,

before

an

executive

department

or

agency

for

nonofficial compensation in violation of § 36-25-1.1, Ala.
Code 1975.

Section 36-25-1.1 provides:

"Lobbying includes promoting or attempting to
influence the awarding of a grant or contract with
any department or agency of the executive,
legislative, or judicial branch of state government.
91

 1180047
"No member of the Legislature, for a fee,
reward, or other compensation, in addition to that
received in his or her official capacity, shall
represent any person, firm, corporation, or other
business entity before an executive department or
agency."
Section 36-25-1.1 provides a definition of lobbying and
precludes legislators from receiving payment to lobby an
executive department or agency.

The facts indicate that

Hubbard made two telephone calls to arrange for Robert Abrams
to meet with the Governor and Secretary of Commerce.

The

purpose of those meetings was to discuss funding from the
State to build a training facility in Alabama for SiO2.

This

type of "work" would be normal for any legislator and would be
deemed a prime example of acceptable and ordinary constituent
services.

The

State

implied

that

Hubbard

arranged

the

meetings on behalf of Si02 in order to continue receiving
compensation from his consulting contract with Capitol Cups.
But a legislator calling an executive agency to set up a
meeting (that the legislator does not attend) on behalf of a
company

in

his

legislative

district

is

a

far

cry

from

representing the company to influence the award for a grant or
contract. Given the expansion of government and growth of
executive

agencies

with

funds
92

for

any

number

of

worthy

 1180047
projects, a legislator becomes a de facto ombudsman to connect
constituents with an agency that can provide or explain the
availability of a program that might be of assistance to the
legislator's constituents or their business. To violate § 3625-1.1, a legislator would have to be specifically paid to be
an advocate for a particular project.

Even reviewing the

evidence in a light most favorable to the State, I cannot find
sufficient evidence that Hubbard was motivated by his contract
with

Capitol

constituent.

Cups

to

arrange

for

two

meetings

for

a

Moreover, the term "represent" means much more

than making a telephone call to schedule a meeting; rather, it
implies an insistent advocacy to obtain a specific grant or
contract for remuneration with a direct connection to the
representation.

In this case, merely inquiring whether a

training facility might be available does not violate § 36-251.1.

Attempting to link payment under one contract for a

particular purpose to another company, for what can only be
described as de minimis contact with an executive agency, is
simply

too

tenuous

a

connection

to

imply

criminality.

Accordingly, I would reverse the Court of Criminal Appeals'
judgment as to counts 12 and 13.

93

 1180047
I also dissent from the main opinion's affirmance of the
Court of Criminal Appeals' judgment as to count 14, using
public property for a private benefit.

Section 36-25-5(c),

Ala. Code 1975, reads:
"No public official or public employee shall use or
cause to be used equipment, facilities, time,
materials, human labor, or other public property
under his or her discretion or control for the
private benefit or business benefit of the public
official, public employee, any other person, or
principal campaign committee as defined in Section
17-22A-2, [Ala. Code 1975,] which would materially
affect his or her financial interest, except as
otherwise provided by law or as provided pursuant to
a lawful employment agreement regulated by agency
policy. ..."
Section 36-25-5(c) prohibits a public official from using
the publicly supplied facilities of his or her office, which
would include publicly paid staff, to advance his or her
personal financial interest in a material way.

The use of

public facilities must be directly related to the material
advancement of the public official's financial interest and
not

tangential

employment.

to

the

official's

nongovernmental

lawful

In this case, it was undisputed that Abrams

controlled both Capitol Cups and SiO2, in addition to other
companies.

The State claimed that, because Hubbard was

getting paid from Abrams through Capitol Cups, he benefited
94

 1180047
financially from assisting Abrams with the patent issue.
Hubbard, on the other hand, asserted that his actions in
assisting Abrams with the SiO2 patent issue were ordinary
constituent services. 21
Although Hubbard's chief of staff made several telephone
calls concerning the patent issue, evidence of such calls is
insufficient

to

support

a

conclusion

that

those

materially affected Hubbard's financial interest.

calls
In my

opinion, § 36-25-5(c) requires a showing of consistent action
for personal financial gain, not a de minimis use that is
insignificant or inadvertent when compared to the totality of
the work of the official's office and his or her financial
interests.

Because I do not agree with the main opinion's

21

In conflict with the main opinion, the Court of Criminal
Appeals' opinion and the parties' briefs to this Court suggest
that SiO2, not CSP Technologies, Inc., was involved in patent
litigation. Although the record does contain a copy of the
patent indicating that CSP was an assignee of the patent,
there was no direct testimony on that point. Rather, Abrams
testified that, in the summer of 2013, SiO2 had received
notice that one of its significant patents had been granted
but that the official patent certificate had not been printed
in a timely manner. Abrams stated that SiO2 was involved in
major patent litigation and that those legal proceedings had
been protracted and expensive. According to Abrams, the new
patent would have settled some of the issues in the patent
litigation, but delivery of the official printed patent had
been delayed by approximately a month.
95

 1180047
broad interpretation of § 36-25-5(c), I would reverse the
Court of Criminal Appeals' judgment as to count 14.
Finally, and with respect to all counts, I note that, in
order for there to be a crime, there must be criminal intent
or, as Blackstone commented: a "vicious will." See Morissette
v. United States, 342 U.S. 246, 251 (1952)(citing 4 Bl. Comm.
21).

Severely punishing the inadvertent or unintentional

breaking of a law omits an appeal to reasonableness.
adage

that

"reason

is

the

life

of

the

law"

is

The
an

acknowledgment that fair-mindedness animates the law; the law
as applied in the main opinion is neither fair nor reasonable
in its application or interpretation.
Hubbard regularly and routinely contacted the Alabama
Ethics Commission to establish and maintain his compliance
with

the

Ethics

Code.

Hubbard's

conduct

exhibited

no

"vicious will" to violate the law; he attempted to stay within
its confines. His culpability is not based on readily defined
violations of the law but is maintained primarily by statutory
interpretations that are suspect and convoluted.

To support

a conviction, laws governing the conduct of public officials
must be clear and not manipulated to criminalize politics. In

96

 1180047
Castillo v. United States, 530 U.S. 120, 131 (2000), the
United States Supreme Court discussed ambiguous statutes and
cited approvingly Staples v. United States, 511 U.S. 600, 619
n. 17 (1994), stating that the rule of lenity requires that
"ambiguous criminal statute[s] ... be construed in favor of
the accused."

In Ex parte Bertram, 884 So. 2d 889, 892 (Ala.

2003), this Court adopted that principle, agreeing that any
ambiguity in a criminal statute must be construed against the
State and in favor of the defendant; to do otherwise is
"contrary to the traditional, well-settled rules of statutory
construction."22

The laws should

not be used to remove

political leaders merely because their leadership is abrasive
or strident.

Even public officials accused of criminal

activity are presumed innocent, and the burden is on the State
to prove guilt beyond a reasonable doubt.

Accordingly, I

respectfully dissent from those parts of the main opinion
affirming the Court of Criminal Appeals' judgment as to counts
6, 10, 11, 12, 13, and 14.
22

As indirect support for my belief that the law here is
ambiguous is the fact that this case was orally argued on June
4, 2019, and it has taken us over 10 months to render a
decision. If the criminal statutes in question were clear,
concise, and unambiguous, no doubt a decision would have been
reached earlier.
97

 1180047
SHAW, Justice (statement of recusal).
I have known the petitioner for many years, and he and I
attend the same church.

In order to avoid any appearance of

impropriety, I have recused myself from the cases in which he
has been the petitioner since March 2016. See, e.g., Ex parte
Hubbard (case no. 1150631).

Therefore, I have not discussed

any of the issues in this case with my colleagues, and I have
not voted or otherwise participated in this case in any
manner.

98

 1180047
MITCHELL, Justice (statement of recusal).
The law firm at which I was a shareholder before I became
an Associate Justice on this Court represented person(s) in
connection with this case while I was an attorney there.
therefore recuse myself.

99

I