Update: 11/3/14 – State Ethics Commission Director Herb Hayden violated the S.C. Freedom of Information Act by falsely telling a Nerve reporter that a commission letter sent to Gov. Nikki Haley had been destroyed, according to a settlement in a lawsuit against Hayden and the commission. A consent order in the suit, filed by the South Carolina Public Interest Foundation, a Greenville-based, not-for-profit organization, was approved by Richland County Circuit Judge Alison Lee on Oct. 24, court records show. See this Nerve story for more details.
The State Ethics Commission apparently has some magical powers these days - at least when it comes to making a certain public record disappear and reappear later.
On Sept. 5, The Nerve submitted a request under the S.C. Freedom of Information Act to Herb Hayden, the commission's longtime executive director, and Deputy Director Cathy Hazelwood asking for a copy of an Aug. 28 letter that Hazelwood wrote to Gov. Nikki Haley directing the governor to reimburse the state for travel costs incurred by her and her campaign staff during a June trip to North Carolina.
In an initial email response to The Nerve on Sept. 26, Hayden said only, “No letter was sent to Governor Haley.” When The Nerve in a follow-up request on Sept. 27 pointed out that the FOIA required the release of the letter regardless of whether it was sent to Haley, Hayden in an email response that day said, “The letter was destroyed when the decision was made that it was not necessary.”
The Nerve again attempted to obtain a copy of the letter, requesting in a Sept. 30 FOIA to Hayden and Hazelwood for an electronic copy of the letter. But Hayden’s position remained unchanged.
“I’m well aware of the requirements of (the) FOIA!” Hayden, who is not an attorney, wrote in an email response the same day, noting that the letter was “destroyed, both hard copy and electronic copy.”’
But on Wednesday, The Nerve received a signed, electronic copy of the Aug 28 letter from Hazelwood, the Ethics Commission’s chief lawyer, as part of a Nov. 22 FOIA request to Hayden and Hazelwood for all correspondence between the commission and Associated Press reporter Seanna Adcox since Jan. 1.
The Nerve made the request after the AP published a Nov. 17 story written by Adcox reporting that it had obtained the Aug. 28 letter from the commission under the FOIA, and citing part of the letter in its story. Emails provided Wednesday by Hazelwood to The Nerve show that Adcox was provided the letter on Nov. 14 - six weeks after Hayden told The Nerve that it had been destroyed.
The Nerve on Friday sent an email request to Hayden and Hazelwood asking why the letter was not released when initially requested in September by The Nerve, and whether the non-release then was a violation of the FOIA.
No response was given. State government offices were closed Friday for the Thanksgiving holiday, so The Nerve contacted Hayden at his home. Hayden has been the commission's director since 1999 and has been with the agency since 1988; his annual salary is $72,736, according to a state salary database maintained by the S.C. Budget and Control Board.
Hayden declined comment, saying only, “I’m not talking to you today – goodbye.”
The Ethics Commission, an agency governed by a nine-member panel appointed by the governor with consent of the General Assembly, is charged with monitoring the governor and other elected state officials – excluding legislators – local elected officials, lobbyists and their clients to make sure they comply with state ethics laws.
Violation of State Law?
Contacted Friday by The Nerve, John Crangle, executive director of the government watchdog organization Common Cause of South Carolina, said Hazelwood's release of the letter to The Nerve after Hayden’s earlier statements about its destruction “raises the question of whether he (Hayden) should continue in office.”
“If anyone should follow the law, it should be the State Ethics Commission,” Crangle, an attorney, said.
At the request of Crangle on behalf of Common Cause, Sen. Brad Hutto, D-Orangeburg, sent a letter on Nov. 13 to S.C. Attorney General Alan Wilson asking, among other things, whether the commission had the “authority to destroy that public record.”
In a Nov. 12 letter to Hutto, Crangle said state law (Section 30-1-30 of the S.C. Code of Laws) bans the destruction of public records. A violation of that law is a misdemeanor punishable by up to 30 days in jail or a maximum $5,000 fine.
Crangle in his letter to Hutto also said his organization believes that the “evidence clearly shows" that Hayden “made an error in construing” state law “so as to allow Haley to use state resources for an election campaign activity in North Carolina on June 27-8, 2013 which raised money for (N.C.) Governor Patrick McCrory, a North Carolina PAC, and herself.” State law (Section 8-13-765-A) bans the use of "government personnel, equipment, materials, or an office building in an election campaign."
The Nerve previously reported that Haley’s campaign received a total of $34,500 from 16 North Carolina donors when the two-day June event at the Grandover Resort in Greensboro, N.C., was held.
In his Sept. 30 email to The Nerve, Hayden said he initially asked Hazelwood to send the Aug. 28 letter to Haley after Hazelwood informed him that “some blog reporter had told her that Gov. Haley had traveled to a campaign fund raiser in a state vehicle, and her staff was stating that she did not need to reimburse the state because she had not announced her candidacy.”
But Hayden said when he learned that the event was a fundraiser for a “non-profit and not a campaign event, I determined that the letter was not necessary.” The event was sponsored by the Renew North Carolina Foundation, a group formed by McCrory's allies to support the legislative agenda of McCrory, a Republican, according to media reports.
In an Aug. 28 email to Hayden and Hazelwood, a copy of which was provided Wednesday by Hazelwood to The Nerve, Haley attorney Butch Bowers said Haley, a Republican, "did not solicit nor did she receive campaign contributions" at the June 27 event at the Grandover Resort, though her campaign "representatives" received contributions earlier in the day from New Breed Inc., a Boeing Co. supplier in the Greensboro area, and some company employees after she met with "company leadership and discussed a variety of topics, primarily economic development policy and initiatives."
Hutto’s Nov. 13 letter asks Wilson whether “state assets or personnel” can be used by the governor for “campaign purposes or activities, whether or not the purpose or activity occurred in-state or out of state,” and if so, under what circumstances. An Oct. 4 agreement signed by Haley, Hayden and State Law Enforcement Division Chief Mark Keel outlines when her campaign has to reimburse the state, though The Nerve reported in an Oct. 28 story that the agreement doesn't require her campaign to reimburse state law enforcement agencies for her security detail's regular pay when the officers are assigned to campaign events.
Questions about the costs of the June trip to North Carolina arose after media outlets in August reported that SLED had not initially revealed that Haley was involved in a traffic accident on June 27 at the Grandover Resort involving a state-owned vehicle driven by a SLED agent. Haley was not hurt when the SUV she was riding in struck a short pole erected in the middle of a golf cart lane, though damage to the vehicle made it inoperable, according to N.C. and S.C. records obtained by The Nerve.
Contacted Friday, Hutto told The Nerve that Wilson’s office has not issued a formal response to his Nov. 13 letter, though he was informed it was assigned to the opinions division in the office.
Hutto, an attorney and a member of the Senate Ethics Committee, said Hayden’s response to The Nerve about Hazelwood's Aug. 28 letter “raises a lot of red flags.”
“If they didn't destroy it, why would they have said they did?” Hutto asked.
Questions of Favoritism
It wouldn’t be the first time this year that questions have been raised about the Ethics Commission's compliance with state law.
In a July 29 story, The Nerve revealed that two appointments earlier this year by Haley to the commission violated state law because neither appointment was confirmed by the S.C. House. The next day, the names of the two appointees were removed from the commission’s website, which now lists four of the nine seats as being vacant.
In its Sept. 5 FOIA, The Nerve asked Hayden and Hazelwood if Haley’s two appointees – James Warren of Greenville and Twana Burris-Alcide of Rock Hill, both attorneys – participated in any commission votes or discussion regarding a July 15 “consent” order in which Haley agreed to pay a $3,500 fine for a reduced list of campaign-reporting violations – after more than a year of secret negotiations between her campaign and the commission.
In his Sept. 26 email response, Hayden said neither Warren nor Burris-Alcide “participated in any open session/public action relating to the Haley consent order.”
Asked by The Nerve if either appointee participated in any closed executive sessions of the commission regarding the Haley settlement, Hayden in his follow-up Sept. 27 email said only, “Action taken in executive session is confidential.”
Crangle on Friday said Hayden’s handling of that matter and the Aug. 28 letter about Haley’s North Carolina trip in June raises questions of favoritism.
“It’s a pattern of being extremely lenient with the governor,” he said.
Reach Brundrett at (803) 254-4411 or firstname.lastname@example.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.