May 28, 2023

The Nerve

Where Government Gets Exposed

Secretive House ‘Ethics-Reform’ Bill Would Decriminalize Ethics Violations

EthicsPublic officials would no longer face criminal penalties for many state ethics violations under an S.C. House bill that wasn’t put in writing for the public to review until Thursday evening – a week after the legislation was first announced.

The proposal to decriminalize ethics violations was not mentioned by lawmakers when they discussed the bill (H. 3945) at a House Judiciary subcommittee hearing Tuesday and a full Judiciary Committee meeting Wednesday.

In what observers have described as an unprecedented situation in recent memory, the written form of the bill was not available for the public at either legislative meeting this week. Details of the legislation first became publicly available Thursday evening on the General Assembly’s website.

The bill would delete language in Section 8-13-1520 of the S.C. Code of Laws imposing a maximum criminal penalty of a year in prison and a $5,000 fine for ethics violations under Chapter 13 of the code, which covers, among other things, campaign practices and rules of conduct for public officials.

In its place, it adds language focusing on civil penalties. Officials could be publicly reprimanded or fined between $200 and $2,500 for each violation, or recommended that they be removed from office by their respective chamber.

(After this story was published, Rep. Rick Quinn, R-Lexington and a member of the House Judiciary subcommittee that discussed H. 3945 on Tuesday, contacted The Nerve and said he is working on an amendment to the bill that would restore the criminal penalties. “That was not the intent of the subcommittee,” he said about the deletion of criminal penalties.)

That section of the law was used last year to prosecute former Lt. Gov. Ken Ard, who pleaded guilty to seven counts of state campaign-finance violations and was sentenced to five years’ probation, a $5,000 fine and 300 hours of community service.

Former Gov. Mark Sanford was investigated by the S.C. Attorney General’s Office for possible criminal violations of state ethics law, though not charged, after he agreed in 2010 to pay the state $74,000 in fines to avoid a hearing on 37 ethics charges by the State Ethics Commission stemming from his private and state plane travel, and reimbursements from his campaign account.

Gov. Nikki Haley was cleared twice last year by the state House Ethics Committee on allegations that she used her office while a House member for personal gain. She did not face any criminal charges.

The State Law Enforcement Division is conducting a preliminary inquiry into potential ethics violations by S.C. House Speaker Bobby Harrell, R-Charleston, after the South Carolina Policy Council, the parent organization of The Nerve, filed a complaint against Harrell with Attorney General Alan Wilson’s office in February.

Harrell is a leading co-sponsor of the House bill that would decriminalize many ethics violations. He did not respond this afternoon to a phone message from The Nerve seeking comment.

The Policy Council’s complaint asked Wilson’s office, which turned the matter over to SLED, raised questions about Harrell’s reimbursement of campaign funds for certain expenses connected to the use of his private plane, and dealings with the state Board of Pharmacy on various matters involving his pharmaceutical business.

Harrell has publicly denied any wrongdoing, and he has not been charged with any criminal or administrative violations.

“The accusations against the speaker had nothing to do with (drafting the bill),” said Rep. Bruce Bannister, R-Greenville and chairman of the House Judiciary subcommittee that discussed the bill on Tuesday, when contacted this morning by The Nerve.

Bannister, the House majority leader and one of 27 co-sponsors of H. 3945, noted that the bill is prospective, not retroactive. A section of the bill states that after it becomes law, any repealed or amended provisions “must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending … criminal prosecution …”

Asked if the bill decriminalizes ethics violations, Bannister, an attorney, replied, “Yes and no,” explaining that there are other state laws that could be used to prosecute officials for certain ethics violations, such as bribery.

If H. 3945 as written becomes law, a defense lawyer could use decriminalized ethics violations as a strategy to try to convince a judge to impose a lighter punishment on his client, said John Crangle, director of the government watchdog organization Common Cause of South Carolina.

“‘It was criminal then, but it is not now,’” Crangle said in describing a possible legal argument.

Crangle, an attorney, said based on his review of the bill, ethics violations would be decriminalized.

Contacted this afternoon by The Nerve, Wilson spokesman Mark Powell declined comment on the bill.

The bill, sponsored by Rep. Murrell Smith, R-Sumter, was introduced on the House floor on April 11 and was referred to the House Judiciary Committee. The House Judiciary Constitutional Laws Subcommittee on Tuesday held a hearing on the bill, but there was no public comment, likely because there was no written copy of the legislation then for public review. Harrell made an unannounced, brief appearance at that hearing.

The online version of H. 3945 had a title and brief summary only until it appeared with the full text for the first time Thursday evening. It heads to the House after the subcommittee approved it Tuesday, as reported earlier by The Nerve; and the House Judiciary Committee passed it Wednesday.

“That’s a highly abnormal process,” Crangle said. “It was an end-run around public comment.”

“I definitely would have testified against decriminalizing ethics violations,” he added.

“It’s certainly not transparent and accountable government the public deserves,” said Lynn Teague, advocacy director for the League of Women Voters of South Carolina, when contacted this afternoon byThe Nerve.

Teague, who attended both House committee meetings this week, confirmed there was no talk of decriminalizing ethics violations.

The bill was drafted to contain elements from several House and Senate bills already written. Ideas also came from the governor-appointed S.C. Commission on Ethics Reform. Changes to the bill were made early this week before the legislative hearings, Bannister said.

Olson can be reached at (803) 254-4411 or Follow him on Twitter @thenerve_curt and @olson_curt. Follow The Nerve on Facebook and on Twitter @thenervesc.

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