Legality of Tyson’s appointment is questionable

By By Bob Martin, The Alabama Scene
The governor, attorney general and chief justice clearly have the authority to appoint “Supernumerary” (retired) District Attorneys to conduct investigations and perform other duties. But can the governor do the same with regard to district attorneys in active service? Some lawyers with whom I have talked believe it is questionable. So do I.
Here’s why: Code of Alabama, Section 12-17-184 (11) mandates that “all district attorneys and all full-time assistant district attorneys “shall devote their entire time to the discharge of the duties of their respective offices.”
And while the attorney general or the governor may assign them to try cases throughout the state, there is nothing I can find in the law that remotely permits them to be assigned as commander of an executive branch investigative task force. The words “their entire time” is not ambiguous.
There is also law in Alabama which prohibits a person from holding two offices of profit. The Alabama Constitution states that: “No person may hold two offices of profit at one and the same time except justices of the peace, constables, notaries public, and commissioner of deeds.”
Just what consists of holding two offices of profit? In 1990 Attorney General Bill Pryor issued an opinion to the Pike County Commission which said that a county commissioner holds an office of profit and opined that the commissioner could not also hold office as a police chief because that is also an office of profit. That analogy appears to fit Mobile DA John Tyson, the governor’s new anti-gambling commander, about as well as the OJ glove.
So while the governor had to fire his first anti-gambling czar, former Jefferson County DA David Barber, for gambling at a Mississippi Indian casino, he may have to let his new one, Mobile District Attorney John Tyson, go because Tyson is not authorized under law to abandon the people in his own circuit in order to accommodate the governor’s obsession with bingo.
Asked by a reporter if he has ever gambled, Tyson said the last time he gambled was about 20 years ago in Mississippi. He didn’t volunteer that in his campaign for attorney general in 2006 he accepted over $100,000, fully a tenth of his campaign contributions, from gambling PACS.
After his appointment by Riley, who set the pay at $125,000 for his services, Barber traveled to Mississippi casinos more than once to gamble or engage in other events.
Milton McGregor, owner of the VictoryLand in Macon County, told the media last week that he had hired a private investigator to follow Barber to the Golden Moon casino in Philadelphia, Miss., where we now know Riley’s former anti-gambling czar played the slots, winning several thousands of dollars. There is also speculation in Montgomery that the Golden Moon and the Silver Star may have been a host to some Alabama legislators in recent months for gambling or other related activities.
Tyson said that McGregor’s monitoring of Barber “borders on obstruction, and we’re going to look into that immediately.” McGregor defended his actions and said Tyson should instead investigate what connections Barber and Riley have to Mississippi casinos.
Tyson responded by attempting to raid VictoryLand in Macon County and again try to raid Country Crossing in Dothan this past weekend. He was thwarted because he lacked search warrants. Nonetheless the state was out nearly a quarter-million dollars and the state roads were void of troopers to protect the rest of us. Over 200 troopers were used in the two attempted raids.
By the time most read this Country Crossing and VictoryLand will already be in federal court, probably filling lawsuits against the governor and the state for violations of Section 1983 of the Civil Rights Act. This is what Attorney General Troy King warned the governor would happen, when he said that the actions of the governor and Tyson would likely subject Alabama to lawsuits that would cost the state millions of dollars. One of those actions very well could be entering private property without a search warrant.
Section 1983 provides that: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Stay tuned.
Bob Martin is editor publisher of The Montgomery Independent. Email him at: bob@montgomeryindependent.com