Did lawmakers violate open-meetings law in DOT Commission appointment?

July 10, 2019

Investigative Reports

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SCDOT

By RICK BRUNDRETT

An Upstate legislative delegation might have skirted the state’s open-meetings law last year by privately recommending to the governor candidates for a Department of Transportation Commission seat, The Nerve found in a review.

In interviews this week, Greenville County GOP Reps. Mike Burns and Garry Smith said the Greenville and Spartanburg county legislative delegations each sent a letter to Gov. Henry McMaster supporting a different candidate for the 4th Congressional District seat currently held by Woodrow “Woody” Willard.

In recommending candidate John Paul Edwards for the seat, Burns and Smith said the Greenville County delegation, which currently is made up of 21 senators and representatives, didn’t hold a public meeting but instead had delegation members supporting Edwards sign a nomination letter, which was sent to McMaster. The Spartanburg County delegation, which has 13 members, sent a similar letter to McMaster supporting Willard, they said.

McMaster ultimately appointed Willard to another four-year term, and the congressional legislative delegation as a group, made up of the Greenville and Spartanburg county delegations, confirmed him, records show.

McMaster last year also appointed three other DOT commissioners who were confirmed by their respective congressional legislative delegations. The leader of one of those delegations told The Nerve this week he didn’t think his delegation made any initial recommendations to McMaster; the heads of the other two delegations didn’t respond to requests for comment.

Legislative delegations exert considerable control over appointments to certain government boards and other public positions. The Nerve last week, for example, reported about county Senate delegations’ power over the appointment of county magistrates statewide in the wake of Sen. Danny Verdin’s surprise selection of former state House Rep. Mike Pitts as a Laurens County magistrate.

Under the S.C. Freedom of Information Act, public bodies can’t “act upon a matter over which” they have “supervision, control, jurisdiction, or advisory power” outside of public meetings. And even if they are legally allowed to meet behind closed doors, they can’t poll members to “commit the public body to a course of action.”

In response to questions about whether state law then allowed a congressional legislative delegation to elect a DOT commissioner by merely circulating a letter among delegation members, the S.C. Attorney General’s Office in a 2007 opinion said, “In our opinion, the statute does not permit the circulation of a letter or petition as a ‘vote’ as a substitute for a physical ‘meeting.’”

“Courts which have considered the question of the effect of a vote taken by circulating a ‘round robin’ letter or petition to individual members of a public body, rather than holding a properly noticed and publicly held meeting, have concluded that such action taken is void and a nullity,” Bob Cook, then-assistant deputy attorney general, wrote on behalf of McMaster, who was the state attorney general at the time.

The S.C. Supreme Court in a 1996 ruling, which was cited in the attorney general opinion, said a county legislative delegation is a public body under the state’s open-meetings law. That requires delegations to give advance notice of public meetings, cast any votes during open session, and make minutes of the proceedings available to citizens.

The Nerve found no records showing that was done last year in recommending DOT Commission candidates for the 4th Congressional District seat.

“It was very informal,” Burns, who has been in office since 2013, said about the Greenville County delegation’s recommendation of Edwards. “I nominated him. I wrote a letter. … I went around and got everybody I could get on the Greenville delegation to support him, which I had a good number.”

Burns provided The Nerve with an unsigned draft of the Jan. 30, 2018, nomination letter that he said was sent to McMaster. That draft was written on Burns’ House member letterhead.

Asked if either the Greenville or Spartanburg County legislative delegation held a public meeting to discuss their respective candidate’s nomination, Burns replied, “Not as far as I remember.”

“The simple way to do that, probably, was at a normal delegation meeting to have that nomination discussed openly in public,” he said when asked if a public meeting should have been held before the delegation recommended Edwards for the DOT Commission seat.

Smith, a House member since 2003 and chairman of the House Operations and Management Committee, agreed, noting, “Anytime you deal with an official action by the delegation in particular, such as the appointment of the representative to the Department of Transportation (Commission) … that should be done in public for the public to see.”

Asked if the Greenville County delegation’s nomination of Edwards violated the state open-meetings law, Smith replied, “I would be concerned that it would be (a violation).”

Burns said the Greenville and Spartanburg county delegations were “at odds” over who should be appointed to the seat, noting that it was “basically an unwritten rule” that the control over appointments should alternate every four years between the delegations.

The Nerve attempted this week to question various members of the Spartanburg County delegation, including Republican Senate president Harvey Peeler, who last year led the 4th Congressional delegation, and Sen. Scott Talley, the county delegation chairman, but none of them was available for comment.

In a Nerve story last month, Talley, a Republican, said the congressional delegation last year confirmed Willard, after he was appointed by McMaster, in an open meeting at the State House, though he couldn’t provide specifics about how the public was notified in advance of the meeting.

The Nerve this week asked McMaster spokesman Brian Symmes if legislative delegations made recommendations last year to McMaster about appointments to the 2nd, 4th, 6th or 7th congressional district DOT Commission seats. Symmes did not respond to the email.

Sen. John Matthews, D-Orangeburg, who led the 6th Congressional District delegation last year, told The Nerve this week he didn’t think the delegation made any recommendations to McMaster. Sens. Hugh Leatherman, R-Florence, who led the 7th Congressional District delegation, and Nikki Setzler, D-Lexington, the leader of the 2nd Congressional District delegation, did not respond to requests for comment.

Taylor Smith, an attorney for the South Carolina Press Association, of which The Nerve is an associate member, said legislative delegations should follow the state open-meetings law.

“At a bare minimum, the (S.C.) Supreme Court has said that these things that are legislative delegations in congressional districts are bodies that have the same requirements as your county council, your school board,” he said, adding, “It’s always safer to be more transparent.”

Under the gas-tax-hike law that took effect two years ago, the governor appoints a DOT Commission candidate in each of the state’s seven congressional districts, though the respective legislative delegations can reject the nominees or force new appointments if they don’t act on the initial ones within 45 days of the referrals. The governor also appoints two other at-large DOT commissioners, with confirmation by the Legislature as a whole.

Given the Upstate lawmakers’ involvement on the front end of the appointment process last year, legislative delegations appear willing to maintain their control over government boards such as the DOT Commission, which sets priorities on which bad roads and bridges under its jurisdiction get fixed, and approves funding for those projects.

Editor’s Note: The South Carolina Policy Council, the parent organization of The Nerve, has launched “Project Road Repair” to encourage citizens to contact their lawmakers about getting their bad roads fixed. To learn more about the project, go here.

Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

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