S.C. Attorney General Alan Wilson’s acceptance today of an ethics complaint against state House Speaker Bobby Harrell highlights conflict-of-interest weaknesses in state law dealing with the House Ethics Committee.
Ashley Landess, president of the South Carolina Policy Council, the parent organization of The Nerve, this afternoon filed a formal complaint against Harrell, R-Charleston, with the attorney general, whose office said the matter would be forwarded to the State Law Enforcement Division.
In a letter this afternoon to SLED Chief Mark Keel, John McIntosh, chief deputy attorney general, said Landess has "brought to our attention today that there may be inherent conflicts of interest by potential witnesses with respect to any initial inquiry by the House Ethics Committee," and that Landess referred the matter to the Attorney General's Office for "handling as a criminal matter."
"Consistent with our usual long-standing policy, we are requesting that SLED assign an agent to conduct this inquiry," McIntosh wrote.
The complaint asks that Wilson’s office investigate whether Harrell:
- Used his office for his financial benefit or that of his family business;
- Used campaign funds for personal purposes;
- Failed to maintain required records documenting his campaign expenditures;
- Adequately itemized campaign reimbursements as required by state law; and
- Violated state law by appointing his brother to a state judicial screening panel.
“We do not file this complaint lightly or without supporting documentation,” Landess wrote in an accompanying letter to Wilson this afternoon. “Indeed, we hoped that by now these concerns would have been investigated and addressed. But months later the public still has no answers as to a pattern of alleged continuing ethics violations by the Speaker of the House.”
“We have limited our complaint to the five issues for which there seems to us little question that the Speaker was not in compliance with the law,” Landess continued. “We believe a thorough investigation is warranted to determine if that is the case, and also to determine if there were/are other violations which have not yet been brought to light.”
Landess publicly announced last month that the Policy Council was considering filing a complaint against Harrell with the 10-member House Ethics Committee, though she expressed concerns then about the committee’s objectivity.
The way the law (Section 8-13-540 of the S.C. Code of Laws) is written, the speaker would not be required to recuse himself from an Ethics Committee investigation if he were the subject of a probe. However, committee members could not participate “in any matter” if they faced an ethics complaint.
The law would require the committee to report its findings on the speaker, which would include an order of punishment, in writing to the speaker. And if the speaker decided to appeal the recommended sanctions against him, he would be required, under the law, to convene the entire House to either uphold or reject the committee’s action.
Given that the speaker controls the appointments to most House committees, though not the Ethics Committee, and thus has considerable influence over legislation, many House members likely would be pressured to side with the speaker.
Contrast that process with the other two branches of government.
For example, the law (Section 8-13-320) governing rules and regulations developed by the State Ethics Commission, which investigates ethics complaints against other public officials, requires that the “rights of due process as expressed in the Rules Governing the Practice of Law must be followed” by the commission.
Under another law (Section 8-13-310) dealing with the makeup of the commission, whose nine members are appointed by the governor with consent of the General Assembly, no state lawmakers or any other public official can serve on the commission.
On the judicial side, court rules for judicial disciplinary enforcement (Rule 502-4-i) require that when a judge who serves on the state Commission on Judicial Conduct is accused of an ethical violation, that judge “shall not participate in the investigation or adjudication of the matter.”
Another court rule (Rule 502-27-g) requires justices on the S.C. Supreme Court, which has final say on disciplinary matters involving judges and lawyers, to recuse themselves from “any proceeding involving allegations of misconduct or incapacity” against them. In those cases, the chairman of the Commission on Judicial Conduct can appoint a lawyer who isn’t employed by the Judicial Department to act as disciplinary counsel.
Landess contended in a letter presented this afternoon to the attorney general that the House Ethics Committee could not be objective when dealing with a complaint against Harrell. (http://www.scpolicycouncil.org/wp-content/uploads/2013/02/letter-to-Wilson1.pdf)
“Clearly, the House Ethics Committee's process is not designed to consider a complaint filed against the Speaker of the House,” Landess said. “There is no formal process by which the inherent conflicts could be resolved, and thus no party to a complaint against any House Speaker could be assured of objectivity or fairness.”
Landess in her letter pointed out that as the House speaker, Harrell has “ultimate authority over all employees of the House,” including the Clerk’s Office, committee staff – including the Ethics Committee staff – and legal counsel and communications staff for the speaker.
She also noted that Harrell, as the House’s presiding officer, would be ultimately responsible for authorizing the hiring and payment of an independent investigator.
The Nerve reported last month that the five Republican members of the 10-member House Ethics Committee collectively had received $13,000 in donations since the 2008 election cycle from a political action committee affiliated with Harrell, known as the Palmetto Leadership Council.
Landess publicly raised similar concerns during a Jan. 22 hearing before the S.C. Commission on Ethics Reform, an 11-member study panel appointed by Gov. Nikki Haley. Landess during the hearing revealed that the Policy Council was considering filing a formal ethics complaint against Harrell.
Landess then, citing documents obtained by the Policy Council and The Nerve, raised questions about Harrell’s:
- Dealings with the state Board of Pharmacy on various matters involving his pharmaceutical business;
- Reimbursement of campaign funds for certain expenses connected to the use of his private airplane; and
- Appointment of his brother, John Harrell, to the state Judicial Merit Selection Commission, a 10-member panel that nominates judicial candidates for election by the Legislature.
The Nerve last week reported, based on state documents obtained under the S.C. Freedom of Information Act, that high-ranking officials with two state pharmacy organizations in 2010 expressed concerns then that Harrell was using his legislative position to help his Charleston-based pharmaceutical company, known as Palmetto State Pharmaceuticals.
In October, The Nerve, based on a review of flight and car mileage records, pointed out discrepancies between his plane and car travel during the 2008 and 2010 legislative sessions.
The (Charleston) Post and Courier in September reported that Harrell, a licensed pilot, reimbursed himself more than $325,000 from his campaign account since 2008, much of which he said was used to cover the costs of flying his private plane to political and legislative events. Harrell later said he returned about $23,000 to his campaign account, according to an Associated Press story.
In October, the Policy Council and other organizations representing the state’s political spectrum publicly called on Wilson to conduct a criminal investigation of Harrell.
Wilson at the time said the House Ethics Committee should investigate the matter first, though The Nerve reported then that no state law barred the Attorney General’s Office from investigating the allegations until after the Ethics Committee had first crack at it.
Historically, the Attorney General’s Office has used the state grand jury to investigate public-corruption cases. The state grand jury is a powerful investigative tool, having the ability to subpoena witnesses and documents, and receive testimony under oath.
Under state law, state grand jury cases can proceed only if the state attorney general and SLED chief jointly agree and convince a circuit judge assigned to those cases to impanel the jury.
Harrell, who has been the House speaker since 2005 and was elected to the House in 1992, repeatedly has denied that he has done anything wrong, and he has not been charged with any criminal or administrative violations.
Harrell or his spokesman, Greg Foster, could not be immediately reached for comment this afternoon. They typically do not return messages from The Nerve.
Reach Brundrett at (803) 254-4411 or firstname.lastname@example.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and on Twitter @thenervesc.