Gov. Haley Moving Slowly on Ethics Commission Appointments

July 8, 2013

Investigative Reports

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Turtle CrossingIn the waning days of this year’s regular legislative session, Gov. Nikki Haley made a last-ditch public pitch to lawmakers to pass an ethics-reform bill – a top priority for her.

“The General Assembly will determine whether South Carolinians get better, more honest, more open government,” Haley said in a prepared statement before the end of the regular session on June 6. “They will determine whether South Carolinians get to know who is paying their legislators, and whether legislators get to continue to police themselves. This is one of those critical times when we learn who is serious about ethics in government.”

When it comes, however, to making appointments to the State Ethics Commission, which polices lobbyists and public officials – excluding General Assembly members – for ethical violations, Haley doesn’t appear to be taking her own gubernatorial duties very seriously, a review by The Nerve found.

Under state law, the governor appoints all nine members to the commission, with consent of the General Assembly. But by the end of this year’s regular legislative session, there were two unfilled seats on the commission; two commissioners, including the chairman, have been serving since their five-year terms expired in 2010 and 2011, while the terms of four other members expired as of June 30, according to the commission’s website, which was updated this morning after The Nerve’s inquiries.

State law says commissioners who have completed a full five-year term are “not eligible for reappointment,” though the same statute (Section 8-13-310 of the S.C. Code of Laws) also allows members to serve “until their successors are appointed and qualify” – in effect, allowing them to remain indefinitely in “holdover” status.

Contacted Friday by The Nerve, John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, said allowing commissioners to serve after their terms expire gives Haley the power to remove them immediately if they fall out of favor with her. In contrast, a governor generally has no authority over commissioners during their five-year terms, he said.

“The problem with holdovers is that they’re vulnerable to retaliation,” Crangle said. “They’re at-will employees of the governor.”

Crangle criticized Haley for publicly pushing ethics-reform legislation while neglecting her appointment duties with the State Ethics Commission.

“She can’t control the General Assembly, but she can control her own office,” he said. “I think it points to a lack of interest in the subject of ethics in the Governor’s Office.”

The Nerve on Friday left a written message for Haley spokesman Rob Godfrey seeking comment on the Ethics Commission appointments, but received no response.

A spokeswoman at the Ethics Commission told The Nerve on Friday that agency Executive Director Herb Hayden and Cathy Hazelwood, the commission’s chief lawyer and deputy director, were out of the office until today. Efforts by The Nerve to reach them over the weekend were unsuccessful.

At its Sept. 19 meeting, the commission discussed the “possibility of 9 brand new members in 2013,” and authorized Hayden to draft a letter for the commission to send to Haley, showing “full support of the commission,” according to meeting minutes.

Hayden told commissioners at their Nov. 28 meeting that he had not received any formal response from the governor to the letter, though he added that the governor’s staff had informed him and Hazelwood that they were “looking at new appointments.”

The Nerve’s review of House and Senate Journals since Haley took office in January 2011 found that she didn’t present any Ethics Commission appointments to the General Assembly until this year. One of her appointments – James Warren of Greenville, representing the state’s 4th Congressional District – was confirmed by the Senate on Feb. 28; he attended his first commission meeting on March 20, according to meeting minutes.

Warren, whose term expires on May 31, 2015, replaced JB Holeman of Greer, whose term expired on May 31, 2010, commission records show.

Haley’s other appointment this year – Twana Burris-Alcide of Rock Hill, representing the 5thCongressional District – was approved by the Senate Judiciary Committee, according to a Feb. 27 Senate Journal entry. She was not listed as a member on the commission’s website as of Friday but was listed this morning after inquiries by The Nerve. Her term, however, expired on June 30, according to the site.

At the commission’s March 20 meeting, commissioner Richard Fitzgerald of Mt. Pleasant, whose term expired on June 30, asked about “any legal problems” if members continued to serve after their terms ended, meeting minutes show. “Staff responded there would be no problems,” according to the minutes.

Under state law, seven of the commission’s nine commissioners are selected from the state’s seven congressional districts, and the other two are at-large members. None of the commissioners can be members of the General Assembly or any other public official.

The Ethics Commission’s website as of this morning listed vacancies in the 3rd and 6th Congressional districts. Two commissioners have been in “holdover” status for more than two years: George Carlton Manley of Simpsonville, whose term expired on June 30, 2010; and commission Chairman Phillip Florence Jr. of Charleston, whose term expired on June 30, 2011.

The terms of commissioners E. Kay Biermann Brohl of Aiken, the commission’s vice-chairman; Jonathan Burnett of Florence; Fitzgerald; and Priscilla Tanner of Johnsonville expired on June 30 of this year, according to the commission’s website as of Friday. Tanner was no longer listed on the site as of this morning after The Nerve’s inquiries.

The agency’s most-recent annual accountability report, issued on Sept. 17, said three commission seats were vacant, and three other commissioners were “serving until their replacements are named.”

Small Agency, Big Cases

The nine-member commission sets the policy of the agency, recommends changes to state ethics law, issues formal advisory opinions on ethics questions, and conducts hearings on ethics complaints.

The agency, which goes by the same name, is tiny compared to most state agencies, having only 11 employees, including its director, commission records show. Its total ratified budget for this fiscal year, which started July 1, is $815,515.

But despite its small size, the agency has handled several very high-profile ethics cases in recent years. For example, then-Gov. Mark Sanford, now a U.S. congressman, agreed in March 2010 to pay $74,000 in fines to settle charges brought by the Ethics Commission alleging improper use of campaign money, the purchase of business-class airline tickets in violation of state law, and the improper use of state planes.

Sanford admitted no wronging in agreeing to pay the fines. He also agreed to pay an additional $66,223 to reimburse the state’s investigative costs.

The Ethics Commission also investigated campaign-finance violations by then-Lt. Gov. Ken Ard, who, in the span of one day in March 2012, resigned from office;  pleaded guilty to seven criminal charges related to the campaign-finance violations; and was sentenced to five years’ probation, a $5,000 fine and 300 hours of community service.

Ethics Bill Bogs Down

The Ethics Commission has no jurisdiction over state lawmakers, who police themselves through their respective House and Senate Ethics committees. The Legislature this session couldn’t agree whether to eliminate the ethics committees; under the House version of a main ethics-reform bill (H. 3945), the two panels would be replaced with a 16-member “Joint Committee on Ethics” made up of eight lawmakers and eight citizens appointed by legislative leaders.

The Senate Judiciary Committee’s version of the bill would replace the State Ethics Commission’s nine-member governing board with an eight-member panel that would be a combination of appointees by the House speaker, Senate president pro tempore and the governor.

The reconstituted Ethics Commission would have the power to investigate state lawmakers, referring criminal allegations to the S.C. Attorney General’s Office and non-criminal matters to the House or Senate Ethics committees, under the Judiciary Committee’s version.

A special study panel appointed earlier by Haley, known as the S.C. Commission on Ethics Reform, recommended in a January report that the Ethics Commission have jurisdiction over lawmakers, with potential criminal cases referred to a proposed, multi-agency “Public Integrity Unit” within the Attorney General’s Office.

H. 3945 couldn’t get out of the Senate by the end of the regular legislative session on June 6, despite Haley’s public call to get an ethics-reform bill to her desk. Because the Legislature operates on a two-year cycle, the bill can be taken up again by the Senate when lawmakers return to Columbia in January.

Crangle told The Nerve on Friday he believes that there are advantages in allowing lawmakers, instead of just the governor, to have a more direct say in appointments to the State Ethics Commission.

“My guess is the Legislature would be much more concerned about timely appointments,” he said.

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