But several other officials, including candidates for Alabama governor and state school board members, may have made one of the same violations.
Troy “Skip” Smithwick was charged January 29 with failure to file annual campaign contribution reports and improper reporting of contributions. Both charges are Class B misdemeanors under state law.
Smithwick’s attorney, Rod Giddens, has filed motions on his behalf to dismiss the claims based on “selective prosecution.”
Smithwick and Giddens were present at a hearing in Talladega County Circuit Court on Tuesday. Giddens said Circuit Judge Julian King asked to hear specific names of people who appeared to have filed late contribution forms.
“He wants me to file some paperwork with the court and set out some of the people that are similarly situated as (Smithwick) is,” he said. “(Judge King) was very interested in whether or not other school board members are included, which they will be.”
Giddens said he could show several instances where annual reports were not filed by the set deadline.
“We believe, based on an initial factual inquiry, that violations of those reporting provisions are rather common in Alabama political campaigns; that responsible State officials know that such violations are rather common; yet that such violations are practically never prosecuted,” the motion stated.
Smithwick has been a member of the Sylacauga City Schools Board of Education for nearly ten years. The indictment stems from an investigation into the forms submitted by him during his 2008 state school board, district three, campaign.
Smithwick was required to turn in his annual report by Jan. 31, 2009. He did not turn in the form until Oct. 6.
Information obtained through the Alabama Secretary of State’s Web site showed several people in elected positions or who have sought office have filed annual reports after the Jan. 31 deadline.
That group included gubernatorial candidates Bradley Byrne (1996, 2008), Tim James (2005) and Ron Sparks (2005), as well as Birmingham District Attorney Brandon Falls (2009).
State Board of Education members David Byers (1995, 2007), Mary Jane Caylor (2009) and Ethel Hall (2010) also turned in reports past the deadline. Byers did not have an annual report on record with the secretary of state since 2007 and board member Ella Bell did not have a report for 2010.
Smithwick’s opponent in the primary, Stephanie Bell, did not have an annual report on record with the secretary of state in 2007 or 2008.
Giddens said he had discovered “dozens” of other state and local officials who filed late or failed to file.
“There are judges that I go in front of in counties that touch us, some of them haven’t even filed,” he said.
A motion from Giddens stated his research showed no one had been previously prosecuted for the violation. Replies from the state denied the motions for dismissal, asking for specific people “similarly situated” to Smithwick.
“I’ve asked them to send me (campaign contribution records) back to 2002, because Troy King was appointed Attorney General in 2004,” Giddens said. “Anything within two years prior to that, he had statute to prosecute. He hasn’t prosecuted anybody for this, not to my knowledge.”
A motion of denial from the Attorney General stated that three elements must be proved for selective prosecution: “selectivity in enforcement, selectivity that is intentional and selectivity based upon some invidious or unjustifiable standard such as race, religion or other arbitrary classification.”
The late filings by other officials ran from one or two days late to more than a month after the deadline. Giddens said whether the form was turned in one day or several months late was immaterial because, according to King, it was a “strict liability statute.”
“The Attorney General’s position is that it doesn’t matter, the stakes don’t matter, you’re guilty,” Giddens said. “You didn’t file it on time, so you’re guilty. It is strict liability, which I think is wrong, and we’re contesting that as well.”
The second count on the indictment dealt specifically with a $100,000 contribution reported from a Huntsville-based political action committee called The Real Democrat.
Smithwick had claimed a $100,000 contribution from another Huntsville-based group, called the Tennessee Valley PAC.
Giddens said he spoke to Steve Raby and Jyles Machem of Tennessee Valley PAC and The Real Democrat PAC, respectively, about the reported contribution.
“There was a snafu with the political action committees,” Giddens said. “They have since filed some amended reports and I still don’t think they understand what happened, based on the people I talked to from the committees.”
Raby and Machem had both previously said there was not a second donation made to Smithwick’s campaign. An amended 2008 annual report from The Real Democrat, received Oct. 19, did not report any contribution to Smithwick.
Smithwick said he would allow his attorney to speak for him on the matters. But he had previously spoken about the donation in question and the indictment.
“The $100,000 was a clerical error,” Smithwick said. “As far as I know, I’m the first one to be prosecuting for not filling out the papers on time.”
A complaint against Smithwick was made by state school board member Betty Peters. Peters asked King to look into it at a meeting in Houston County in August, as reported in The Dothan Eagle.
“(King) said, according to the Dothan Eagle, he would,” Giddens said. “He then, within 60 days or thereabout, impanels a grand jury. By January, Mr. Smithwick gets indicted for failing to file an annual report on time and for improperly reporting campaign contributions.”
Smithwick previously said his mistake in filing late was because he was not familiar with running for state office. He said he had spoken with someone from the Attorney General’s office about the matter in November.
“He had the bank statements, the receipts and disbursements, the contributions and they were all tallied up,” he said after he was charged. “The only thing, the law says you have got to file by the end of the year that the election was. I forgot about, didn’t realize it. I filed the 10-day report, the 45-day report, the other report and then [missed] the final one.”