House, Senate Secrecy Kills Openness Bill

July 7, 2010

Investigative Reports

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The NerveGov. Mark Sanford has vetoed a bill that would allow allegations of ethical wrongdoing against statewide and locally elected officials to be made public upon a finding of probable cause.

Sanford takes issue with the fact that the sunshine provision would not apply to members of the General Assembly.

However, there is still a chance that the bill, H. 4542, could become law. And its sponsor, Republican state Rep. Jim Harrison of Richland, says he will introduce legislation next year to apply the openness rule to S.C. lawmakers.

The bill has received remarkably little attention from other media in South Carolina.

Currently, the State Ethics Commission exercises jurisdiction over the state’s nine constitutional officers, a select group of appointed state officials and locally elected officeholders under the state Ethics Act.

That law covers campaign contribution limits and other dos and don’ts.

But the Ethics Commission does not enforce the statute as it relates to members of the Legislature.

Instead, lawmakers police themselves in matters of wrongful behavior through separate House and Senate ethics committees.

Neither one has publicly reported any of its activities during the past 20 years, according to John Crangle, director of the nonprofit good-government group Common Cause of South Carolina.

In addition, the statute prohibits the Ethics Commission from disclosing anything about a case pursuant to the law until the case has been closed, unless the subject of the proceeding waives his or her right to confidentiality.

Harrison’s bill would amend the law to permit a formal accusation of an Ethics Act violation to become public if the commission determines that there is sufficient evidence to support the charge.

The bill is an outgrowth of a recently concluded ethics case against Sanford and a dispute about whether he had waived confidentiality in the matter. It centered on some of Sanford’s travel on commercial and state-owned aircraft and how he used certain campaign funds that had been donated to him.

The South Carolina Press Association drafted the legislation and asked Harrison to sponsor it.

The bill cleared the Legislature with broad support.

But on June 11, Sanford vetoed it and ripped the Legislature for excluding itself from the measure.

In the Senate, it was amended to include the General Assembly’s ethics panels. But, at the behest of Senate President Pro Tempore Glenn McConnell, R-Charleston, that amendment was stripped out before the bill made it to the governor’s desk.

“We’re vetoing this bill on the grounds that what is good for the goose is good for the gander,” Sanford said in a written message informing House members of why he nixed the bill. “We shouldn’t have two ethics processes, one for legislators and another for everyone else in the state. Allowing this bill to become law would perpetuate this inequitable dual system.”

But for the exclusion of lawmakers, Sanford said he would fully support the bill. “I continue to believe that allowing legislators to police themselves, whether it is for technical errors or serious violations, presents obvious conflicts of interest.”

It is a “fundamentally flawed” system, the governor said. And “even with the most objective and principled of ethics committee members, it is difficult to avoid the appearance of a biased and predisposed enforcement system in the eyes of the public, which I believe diminishes the integrity of the ethics process,” he added.

A two-thirds vote by both the House and Senate is necessary to override Sanford’s veto of the bill.

On June 15, the House did its part, easily exceeding the required margin, 102-2.

Two weeks later, the Senate opted to carry over the veto. That action allows senators to take it up when the Legislature is scheduled to reconvene in January, according to Senate assistant clerk Michael Hitchcock.

The bill passed the Senate unanimously on the second and third of three required readings, indicating the votes exist in the chamber to enact the measure into law over the governor’s veto.

Bill Rogers, director of the S.C. Press Association, said he was extremely disappointed the bill did not pass this legislative session. “The public has a right to know about these investigations of public officials, and now they won’t for months to come,” Rogers said in an e-mail to The Nerve.

Rogers said the Press Association does not disagree that the Legislature’s ethics investigations should be open. “But because of constitutional questions, we wanted this bill to pass on its own and get these investigations open,” he said.

Previously, Rogers explained that under the S.C. Constitution, he believes that applying the disclosure provision to the House and Senate probably must be done by legislative rule rather than statute.

Efforts by The Nerve to reach McConnell on Tuesday were unsuccessful.

Harrison says he agrees that the bill should apply to the General Assembly, too. “But we don’t have the luxury of amending it at this point,” he says, adding that it’s important to get the bill passed even without the legislative language.

But on that note, the lawmaker sees the rule issue differently. “I’m not aware of any reason why we couldn’t do it by statute,” says Harrison, an attorney. “Statute takes precedence over House and Senate rules.”

The question could be put to the test in the next legislative session. Harrison says he plans to sponsor a bill then to make the Legislature’s ethics committees follow the same guidelines as outlined in his current proposal.

To the Ethics Commission, Harrison’s vetoed bill is not a bad idea, but there are more pressing issues to address, according to Cathy Hazelwood, attorney for the commission.

Citing a couple of examples, Hazelwood says campaign contributions of less than $100 do not have to be itemized and the Ethics Act should be amended to change that. “All contributions need to be itemized,” she says.

Also, the language of the statute should be cleaned up, with many references to paper forms deleted and replaced with terminology related to electronic filings, Hazelwood says. “That’s a big thing.”

Reach Ward at (803) 254-4411 or eric@scpolicycouncil.com.