Destruction of Haley Ethics Letter Violation of State Policy?

October 2, 2013

Investigative Reports

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By RICK BRUNDRETT

 

The destruction of a recent letter from the State Ethics Commission’s chief lawyer to Gov. Nikki Haley’s campaign dealing with potential ethics violations might have violated a state records-retention policy, a review by The Nervefound.

In August, Cathy Hazelwood, the commission’s attorney and deputy director, drafted a letter to Haley’s campaign requesting that it reimburse the state for the cost of a State Law Enforcement Division security detail for Haley for a June fundraising event in North Carolina sponsored by a foundation supporting N.C. Gov. Pat McCrory’s policy agenda, according to media reports.Delete Key

But longtime Ethics Commission Executive Director Herb Hayden, who is not an attorney, publicly negated Hazelwood’s legal opinion, announcing that Haley’s campaign would not have to reimburse the state for the security detail costs.

In emails last week to The Nerve in response to a Sept. 5 state Freedom of Information Act request, Hayden said Hazelwood’s letter was not sent to Haley, and that it was “destroyed when the decision was made it was not necessary.”

In response to follow-up questions about whether any electronic copies of the letter existed, Hayden in an email Monday said, “The letter was destroyed, both hard copy and electronic copy.”

The Nerve in a story Monday pointed out that under the S.C. Freedom of Information Act, electronic copies of records are public records and must be released upon request unless specifically exempted by law. In his response Monday to that issue, Hayden said he was “well aware” of the FOIA’s requirements.”

Hayden didn’t respond to a follow-up question Tuesday about whether the destruction of all copies of the letter violated state records-retention policies.

Under the general records-retention policy covering state agencies, including the Ethics Commission, administrative correspondence at “executive levels” is supposed to be retained by an agency for at least three years before being archived permanently through the S.C. Department of Archives and History.

“These letters are usually found at the agency director, deputy director and division director levels,” the policy states.

The policy covers communications involving “coordination of programs, agency policy, and responsibilities of a non-routine nature that impact on the agency or its divisions.”

In addition, the Ethics Commission has a separate list of retainable records under a “specific schedule” that applies only to the commission. Under that list, routine correspondence “used for reference purposes” is supposed to be retained by the commission for a minimum of three years, though those letters can be destroyed after the retention period, according to that policy.

Contacted Tuesday by The Nerve, Erin Lowry, a records analyst with the Department of Archives and History, said in email response that while she was not aware of a state law that requires agencies to use either general or specific records-retention schedules, “most agencies use the general schedules” and will use specific schedules “if they are for records that only they create.” She said the Ethics Commission uses a “mixture of both general and specific schedules.”

“The Archives stance on records schedules is that we create these schedules as guidelines (and tools) to be used by the agency, but it is ultimately up to the agency to designate what records fit under each schedule,” Lowry said.

She noted that because her agency currently is unable to maintain other agencies’ records in electronic format, “we are currently requiring agencies to maintain any permanent electronic records themselves, so if the Ethics Commission has these records in electronic format, they would still have them in their possession.”

“It’s extremely poor judgment on his (Hayden’s) part,” said John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, when asked Tuesday by The Nerve about the destruction of the Hazelwood letter to Haley’s campaign. “He knew this was a controversial matter, and he had good reason to believe this matter wasn’t concluded.”

“Why did he destroy the records?” Crangle added. “What’s the urgency in doing that?”

In a related matter, Crangle said he hand-delivered a letter – a copy of which he provided to The Nerve – on Monday from his organization to Hayden requesting that Hayden reconsider his decision not to ask Haley’s campaign to reimburse the state for security-detail costs during the June trip to North Carolina. Haley received $36,500 from N.C.-based campaign donors during the trip period, according to a story inThe State newspaper.

Haley was involved in a minor traffic accident in a state vehicle in which she was a passenger on June 27 near Greensboro, N.C., according to an N.C. State Highway Patrol report, when the fundraising event for the foundation supporting McCrory’s policy agenda was held.

Crangle said Tuesday the Common Cause board authorized him to write the letter to Hayden, citing a state law (Section 8-13-765 (A) of the S.C. Code of Laws) that bans the use of “government personnel, equipment, materials, or an office building in an election campaign.”

Crangle said he requested that Hayden ask S.C. Attorney General Alan Wilson for an advisory opinion on the Haley matter if Hayden refused to reconsider his position. Crangle said Hayden told him he planned to ask the Ethics Commission whether a legal opinion from Wilson would be necessary.

“There’s a problem of having someone who is not a lawyer being executive director of the commission,” Crangle said of Hayden. “If you’re going to deal with legal questions, you need to have legal expertise.”

The nine-member commission, which is appointed by the governor with consent of the Legislature, currently has four vacancies – two of which occurred after The Nerve revealed in a July 29 story that the Haley appointees – James Warren of Greenville and Twana Burris-Alcide of Rock Hill, both of whom are attorneys – were serving in violation of state law because they were not confirmed by the House.

Hayden in an email last week to The Nerve said neither appointee participated in any “open session/public action” regarding a July 15 consent order in which Haley agreed to pay a $3,500 fine for a reduced list of campaign-reporting violations. But Hayden has not answered The Nerve’s questions about whether Warren or Burris-Alcide participated in any closed, executive sessions on the matter, saying only that actions taken in those meetings are “confidential.”

The remaining five commissioners are in “holdover” status, meaning they can continue to serve even though their terms have expired, but can be removed at any time by Haley, according to Crangle.

“Commissioners are placed in an intolerably vulnerable posture when dealing with an issue involving the conduct of the governor who can replace them if and when they displease the governor; and the Executive Director, in turn, is not insulated from retaliatory action by new commissioners as he serves at the pleasure of the commission,” Crangle wrote in his letter Monday to Hayden.

The Nerve on Tuesday asked Hayden for comment on the Common Cause letter but received no response. But Hayden in an email Monday to The Nerve defended his destruction of the Hazelwood letter to the Haley campaign.

“When Ms. Hazelwood advised me 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, I asked her to send a letter to Gov. Haley to advise her that, per the statute, she was in fact a candidate, and any travel to a campaign fund raiser in a state vehicle must be reimbursed,” Hayden said.

“When I learned that the event was a fund raiser for a non-profit and not a campaign event,” Hayden continued, “I determined that the letter was not necessary.”

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.  Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.