Free Passes in S.C. House for Bad Behavior?

September 22, 2014

Investigative Reports

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SC House ChamberWhen a special S.C. House committee meets Tuesday, it is expected to begin debate about whether to dilute the power that suspended and indicted House Speaker Bobby Harrell held for nearly a decade.

It’s not known, however, whether the 17-member, bipartisan House Rules and Procedures Review Ad Hoc Committee, appointed last week by acting speaker Jay Lucas, R-Darlington, will change any House rules to make it tougher for members to keep their seats when they break the law.

Consider the following past and pending criminal cases involving current or former House members after Harrell, R-Charleston, became the House speaker in 2005:

In 2007, then-Rep. Thad Viers, R-Horry, was fined $500 after pleading no contest in Richland County to a misdemeanor charge of unlawful communication by making telephone threats to a man dating his estranged wife. He kept his House seat but resigned in 2012, two months after being charged with first-degree harassment in Horry County involving an ex-girlfriend; he pleaded guilty last January to a misdemeanor second-degree harassment charge and was sentenced to 60 days in jail and one year of probation.

Last month, Viers, an attorney, was indicted by a federal grand jury in Florence County on charges that he laundered money and lied to Internal Revenue Service agents in what authorities described was a scheme to hide money for a legal client from whom an insurance company was trying to collect after paying about $6 million on a defaulted paving contract. Viers has pleaded not guilty to the 14 counts.

In 2012, Rep. Ted Vick, D-Chesterfield and a businessman, was indicted by a Richland County grand jury on a misdemeanor charge of unlawful carrying of a pistol and also was charged by Columbia police with first-offense driving under the influence, which is a misdemeanor.

During last year’s legislative session, Vick was charged again with first-offense DUI after being stopped in the State House parking garage. His attorney, Rep. Todd Rutherford, D-Richland and the House minority leader, said his client was not drunk at the time but had a pebble in his shoe.

Vick has requested jury trials on his charges; his 2013 case was continued at least once because of his status as a legislator, though a trial is scheduled for Oct. 27, court records show. Vick announced in February that he would not seek re-election in November.

Last November, Rep. Stephen Goldfinch, R-Georgetown, was charged in a federal criminal case in Texas in connection with the harvesting of stem cells that later were sold to a Texas man posing as a U.S. doctor. Federal prosecutors in Texas allege in a charging document called an “information” that over two years, a Mt. Pleasant-based company then owned and operated by Goldfinch was involved with the “distribution and sale of stem cells” that had not been approved by the U.S. Food and Drug Administration to “treat human diseases.”

In a December 2013 story, Goldfinch, an attorney who faces a maximum sentence of one year in federal prison and a $100,000 fine if convicted of the federal charge of “misbranded drugs,” told The Nerve that he planned to plead guilty and was informed his case would be transferred to South Carolina. Federal court records show no activity in his case since last December; Goldfinch remains a House member.

In 2012, Rep. Harold Mitchell, D-Spartanburg and the director of a nonprofit organization, was suspended for 10 months from his House seat after he was indicted by a Spartanburg County grand jury on four felony counts of state income tax evasion, accused of “willfully and knowingly” failing to report thousands of dollars of earned income over four years and telling investigators he never earned the additional income.

Mitchell was allowed to return to the House after pleading guilty to two misdemeanor charges of failing to file income tax returns for two years, and was placed on three years’ probation and ordered to pay about $6,000 for all taxes owed. In May of this year, the House Ethics Committee found that Mitchell misspent nearly $7,400 from his campaign account on personal and other expenses not related to his campaign or legislative office, or failed to provide supporting documentation for claimed expenses,though he faced no criminal charges for those violations.

The Ethics Committee did not recommend that Mitchell, whose bank records were subpoenaed for its investigation, be expelled from the House, but instead fined him $16,100 and ordered that he repay the approximately misspent $7,400 to his campaign account.

In 2011, Rep. Kris Crawford, R-Florence and a physician, was indicted by a Florence County grand jury on four misdemeanor counts of “knowingly and willingly” failing to meet deadlines over four years to file state income tax returns, and “knowingly and willingly” failing to to pay estimated quarterly payments and state income taxes by due dates during the same period. A Florence County jury in 2012 convicted Crawford on all four counts; he was fined $10,000 and ordered to pay the costs of prosecution. He remains a House member.

Crawford and Mitchell are among the 17 members of the special House rules committee scheduled to meet Tuesday.

Crimes of ‘Moral Turpitude’

State law (Section 8-13-560 of the S.C. Code of Laws) requires the presiding officer of the House and Senate to immediately suspend one of their respective members without pay if they are indicted in state or federal court for a felony, a crime that carries a sentence of two or more years, a criminal violation of election laws, or a crime of “moral turpitude.” If the lawmaker is convicted, his or her office must be declared vacant; in cases where the charges are dismissed or the legislator is acquitted, the lawmaker must be reinstated with back pay.

Harrell had to be suspended from office because one of the nine charges against him – common law misconduct in office – carries a maximum sentence of 10 years in prison. Also, in a legal opinion issued the same day of his suspension, Bob Cook, a solicitor general in the S.C. Attorney General’s Office, wrote that allegations against Harrell of making false claims and spending campaign funds for personal use “would most probably constitute a crime of moral turpitude.”

Attorney general opinions do not have the force of law, though public officials and agencies often rely on them.

There is no definition of “crime of moral turpitude” under the state Ethics Act, nor has the State Ethics Commission defined it, Herb Hayden, the commission’s executive director, said in an email response last week to The Nerve. The House and Senate Ethics committees, which have jurisdiction over their respective chambers, also have not formally defined the crime, committee staffers told The Nerve last week.

In a 1978 ruling, the S.C. Supreme Court defined moral turpitude as an act of “baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”

The top court also described moral turpitude as an “act in which fraud is an ingredient.”

In a 2007 ruling, the S.C. Administrative Law Court cited the 1978 opinion, adding, “In determining whether a crime is one involving moral turpitude, courts focus primarily on the duty to society and fellow man that is breached by the commission of the crime.”

Cases ‘Thoroughly Researched’

So, given those legal definitions, do the concluded income-tax cases involving Mitchell and Crawford, as well as the pending federal case against Goldfinch, constitute crimes of moral turpitude for purposes of suspension or expulsion from the House? The Nerve posed that question Friday to Lucas, the House speaker pro tempore and acting speaker.

“All those occurred prior to my becoming the acting speaker, and they were thoroughly researched, and it’s my understanding that it doesn’t apply to those individuals,” Lucas said.

Asked who made that determination in those cases, Lucas replied, “I would imagine it would have been the (House) clerk, who is an outstanding lawyer.”

House Clerk Charles Reid did not immediately respond to a written message Friday from The Nerveseeking confirmation of Lucas’ statements.

Goldfinch told The Nerve for the December 2013 story that he “self-reported” his federal criminal case to Reid and Brad Wright, a House attorney and Harrell’s chief of staff; and that he was informed that for him to be suspended from the House, he would have to be charged with a felony, a crime that carries a sentence of at least two years, or a crime of moral turpitude.

“It is ultimately up the speaker, but after talking to them, it doesn’t look like it falls into any of those categories,” Goldfinch said at the time.

Asked Friday whether he – if he becomes the next permanent House speaker –  would push to change state law to better define crimes of moral turpitude, Lucas replied: “I think the case law (court rulings) is fairly clear what is and what is not a crime of moral turpitude. … There is a body of precedent out there, and I’m going to rely on that body of precedent.”

The Nerve on Friday left a phone message with Rep. Kenny Bingham, R-Lexington and the House Ethics Committee chairman, seeking comment on recent past and pending criminal cases involving House members. No response was received by publication of this story.

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