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Richland County Councilman Fighting Federal Complaint

As a longtime S.C. Department of Transportation engineer, Norman Jackson says he didn’t think his job would pose any conflict with his position as a Richland County Council member.

The federal government, however, believes otherwise.

In a rare move, the U.S. Office of Special Counsel has filed a formal complaint against Jackson, a Democrat who was first elected to County Council in 2006 and re-elected to another four-year term last year, contending that he violated the federal Hatch Act.

If Jackson won’t resign his council position, the federal government – if it prevails – can have Jackson, a 32-year state employee, removed from his DOT job and prevent him from taking other public employment in South Carolina for 18 months.

The Hatch Act bans employees of state or local governments from serving on partisan, publicly elected bodies if their job duties are in “connection with whatever is being funded with the federal money,” Erica Hamrick, deputy chief of the Hatch Act Unit in the Office of Special Counsel, told The Nerve last week.

“The idea behind the Hatch Act is that those federally funded programs should be run neutrally with no partisan involvement,” Hamrick said.

Hamrick declined to discuss specifics of Jackson’s case.

The Office of Special Counsel (OSC) is an investigative and prosecutorial agency that handles federal civil service and whistleblower cases in addition to Hatch Act violations. In June, the OSC filed a formal complaint against Jackson with the U.S. Merit Systems Protection Board (MSPB), a separate quasi-judicial agency that deals primarily with protecting the employment rights of federal employees.

Jackson’s case has been assigned to a federal administrative law judge in New York, though a ruling has not been made, according to Matthew Shannon, an MSPB senior attorney.

Either party can appeal the judge’s ruling to the full MSPB; because Jackson is a state employee, he could appeal a ruling by the full MSPB to a U.S. District Court in South Carolina, Shannon said.

Shannon referred specific questions about Jackson’s case to the Office of Special Counsel.

In interviews last week with The Nerve, Jackson said he didn’t violate the Hatch Act. Ironically, the OSC in 2009 said he wasn't in violation, though the agency later changed its position, according to copies of OSC letters provided to The Nerve.

Jackson said he does not control any federal funding in his job as a DOT engineer and planner. He acknowledged that 80 percent of his salary is funded with a federal grant, though he pointed to an OSC letter that said coverage under the Hatch Act is "not dependent on the source of an employee's salary."

“It goes back to the spirit of the (Hatch) act,” Jackson said. “In anything I have done, there was no advantage over my (election) opponent, and the law was designed to prevent any advantage.”

Jackson in legal papers and in interviews with The Nerve said he believes he was targeted by top DOT officials because he was the deciding vote on County Council in July 2008 against putting a penny-sales-tax proposal on the ballot.

The tax would have raised a projected $521.5 million over nine years to improve roads in Richland County; provide stability to the Midlands' financially trouble public bus system; and build sidewalks, bike lanes and trails.

Jackson said he opposed the proposal because as a DOT engineer, he believed that cost estimates provided by the county for certain projects were overinflated.

“I got word back that (former DOT Secretary) Buck Limehouse was very upset with me about not passing the penny sales tax,” Jackson said.  “They had high hopes initially on the penny sales tax being passed, and I didn’t support it.”

“Plus,” Jackson added, “I’m a Democrat in a Republican-run agency.”

Another penny-sales-tax initiative that would have raised more than $1 billion over 25 years was placed on the Richland County ballot in November 2010, but it was narrowly defeated. Jackson said he was opposed to that proposal as well, but voted to put it on the ballot only in a procedural move to attempt to get County Council to reconsider it later.

Contacted last week by The Nerve for a response to Jackson’s allegations, DOT spokesman Pete Poore said that because “it’s a legal matter that is not resolved,” the agency likely would not comment on specifics.

But Limehouse, who served as the state transportation secretary from 2007 through last year, denied Jackson’s allegations in an interview Wednesday with The Nerve.

“I didn’t even know (at the time) how he voted (on the 2008 ballot question),” Limehouse said. “What do I care whether Richland County passed a 1-cent sales tax in that county?”

Jackson said that passing the penny sales tax would have freed up several hundred million dollars that DOT could have used on other projects in the state.

As for the Hatch Act complaint against Jackson, Limehouse said Jackson had “plenty of notice,” noting that Jackson received a letter signed by him “basically reiterating” the facts as presented in the federal complaint.

As evidence that he was targeted for his 2008 vote, Jackson said fellow County Council member Kelvin Washington, a Democrat and also a DOT employee, was similarly informed by the Office of Special Counsel in 2008 when seeking election to County Council of a potential violation of the Hatch Act.

Jackson said he had “no idea” who made the initial complaints against him and Washington.

Washington did not return two phone messages left for him within the past week by The Nerve.

DOT officials reclassified Washington’s position to remove the potential Hatch Act violation but refused a similar request for Jackson “purely for political purposes and retaliation,” Jackson said in his written response to the federal complaint. Jackson told The Nerve that Washington has supported the penny sales tax.

Limehouse, however, said Jackson’s position couldn’t be reclassified because he was in a different department than Washington, and that Jackson wasn’t treated unfairly.

“We couldn’t just create a job for somebody in this (economic) climate,” Limehouse said. “What he (Jackson) wants is not equal treatment. He wants special treatment.”

The Nerve last week obtained copies of letters to Jackson from the Office of Special Counsel (OSC), one of which initially informed Jackson in September 2008 that his candidacy in the November 2006 county election might have violated the Hatch Act.

But the OSC said then it wouldn’t take any action because Jackson said he had been informed by the S.C. Attorney General’s Office in 2006 that there wouldn’t be a violation, and that DOT’s chief attorney acknowledged not providing employees in 2006 with information on Hatch Act restrictions.

"DOT had an obligation initially to try to find me another position, especially when they found out they were wrong," Jackson told The Nerve.

In January 2009, Jackson received another letter from the OSC saying he wasn’t in violation then because he held a “nonsupervisory position” in the DOT’s Office of Transportation and Planning.

But federal investigators apparently changed their collective mind after Jackson decided to run for re-election last year, informing him in a June 2010 letter that his “continued candidacy for County Council is an ongoing violation of the Hatch Act.”

That letter also said the OSC was investigating an allegation by Jackson that a DOT official, who wasn’t identified in the letter, “used his official authority or influence in violation of the Hatch Act.”

The Office of Special Counsel filed its formal complaint against Jackson on June 9. Jackson filed his written response on Aug. 16; on Aug. 29, the OSC asked that the MSPB deny Jackson’s request to dismiss the complaint, records show.

As for the OSC’s 2009 letter indicating Jackson wasn’t in violation of the Hatch Act, the OSC in its Aug. 29 written response said that letter was “impertinent and immaterial to this matter.”

“OSC has not charged Respondent Jackson with violating the Hatch Act by being a candidate for Richland County Council in 2006; he is charged with violating the Hatch Act for his 2010 candidacy,” the OSC said.

Hamrick, of the OSC’s Hatch Act Unit, said of the 526 initial complaints filed with her office in fiscal year 2010 – the most recently available data – only seven resulted in formal complaints to the MSPB.

“It’s a small percentage of the cases we investigate,” Hamrick said.

She noted that of the total initial complaints  in fiscal year 2010, 163 resulted in warning letters; in another 55 cases, the targeted individuals mainly either withdrew from their elective races or quit their public jobs.

Jackson said in July 2010 he entered the state’s TERI program, which allows public employees to continue working for up to five years while accumulating retirement benefits that are paid out after the program in either a lump sum or through an annuity. He said he made the move to help protect him in case the federal government prevailed in its complaint.

Still, Jackson said he doesn’t plan to quit fighting to clear his name.

“I’m not selling my soul,” he said.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.

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