Lawmakers’ Self-Policing Powers Debated in Lawsuit and Legislation

November 27, 2013

Investigative Reports

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Sen. Marlon KimpsonAs state lawmakers plan to continue debate next year whether to relinquish their self-policing powers, defendants in an ongoing ethics lawsuit involving a newly elected senator are staking out the status-quo position.

The suit, filed Sept. 26 in Richland County Circuit Court by Jeremy Walters, a Fort Mill carpenter and the state Libertarian Party vice chairman, seeks to unseat S.C. Sen. Marlon Kimpson, D-Charleston, who was elected in an Oct. 1 special election.

The suit contends that Kimpson, who won with nearly 80 percent of the vote, and Republican challenger Billy Shuman Jr. violated state ethics law by listing the year “2013” instead of “2012” on their required annual income-disclosure form, known as a statement of economic interests (SEI), filed with the State Ethics Commission.

The other challenger in the election, Libertarian candidate Alexandra Thornton, who received just 1.2 percent of the vote, filled out her SEI correctly and should be declared the winner, Walters told The Nerve in an Oct. 21 story.

Kimpson replaced Robert Ford, a Democrat who resigned his 20-year Senate seat in May amid a Senate Ethics Committee hearing into allegations that he used his campaign funds for personal expenses.

In court papers filed this month, Kimpson asked that a court dismiss the suit against him, contending, among other things, that the Senate Ethics Committee and not the courts has jurisdiction over his case.

“Article III, Section 11 of the South Carolina Constitution is clear and unambiguous when it provides that each House of the General Assembly is the sole judge of the election returns and qualifications of its own members,” said Kimpson, who is being represented by Senate lawyer Michael Hitchcock, in his Nov. 6 response.

The State Election Commission, which also is a defendant in the suit, made similar arguments in its Nov. 6 response.

“Under the clear terms of (Section 8-13-1356 of the S.C. Code of Laws), the State Ethics Commission would be the appropriate supervisory office for an ethics complaint against Defendant Shuman and the Senate Ethics Committee would be the appropriate supervisory office for Defendant Kimpson,” according to the response of the commission, which is being represented by the S.C. Attorney General’s Office.

Under state law, House and Senate members police themselves for ethical violations through their respective ethics committees, while the State Ethics Commission oversees other elected state and local officials, lobbyists and their clients.

Battle in the Legislature

The General Assembly in January is expected to take up a stalled ethics bill (H. 3945), which, among other things, would change the way ethics complaints against lawmakers are handled. There are competing versions of the bill that would have to be resolved before a final version is sent to Gov. Nikki Haley for her consideration.

The House plan would eliminate the House and Senate Ethics committees, though a proposed new “Joint Committee on Ethics” would still be legislatively controlled, as the House and Senate would allow majority and minority leaders in both chambers to appoint eight lawmakers and eight citizens to the panel.

The Senate Judiciary Committee’s version would replace the current nine-member State Ethics Commission with an eight-member panel that would be a combination of appointees by the House speaker, Senate president pro tempore and the governor, though no panel members could be lawmakers. The current commission is appointed by the governor, with consent of the General Assembly.

The reconstituted Ethics Commission would have the authority to investigate state lawmakers, referring criminal matters to the Attorney General’s Office and non-criminal matters to the House and Senate Ethics committees.

Both the House and Senate Judiciary versions of H. 3945 authorize the creation of a multi-agency “Public Integrity Unit” within the Attorney General’s Office, which would, among other responsibilities, handle criminal complaints against lawmakers.

The Lawsuit

Kimpson, an attorney with the Motley Rice law firm in Mt. Pleasant and a former chairman of the State Election Commission, did not respond to written and phone messages Tuesday from The Nerve seeking comment on the lawsuit.

Mark Powell, spokesman for Attorney General Alan Wilson, told The Nerve on Tuesday that no court date has been set on the suit. When asked, he said he couldn’t recall any recent previous cases involving a state lawmaker sued for improperly filling out an income-disclosure form.

Contacted Tuesday by The Nerve, Walters, who is representing himself in his suit, said he believes it’s important for a court to clarify state law on how statements of economic interests should be filled out. An unsuccessful House candidate in last year’s general election, Walters said he specified the year 2011 on his SEI filed with the State Ethics Commission.

“If they (the defendants in his suit) are right, then mine (SEI) was wrong and I shouldn’t have been on the ballot,” he said.

Walters in his suit relies on a version of the state law (Section 8-13-1356) that requires candidates to file their SEIs “for the preceding calendar year at the same time and with the same official with whom the candidate files a declaration of candidacy or petition for nomination.”

Walters contends that putting the wrong year on an SEI form is more than a technical violation. As a comparison, he said it would be like taxpayers filling out their 2013 income tax returns due in April based on income earned and taxes paid from January through March of this year, instead of calendar year 2012.

One of the issues in Walters’ suit is what version of the state law was in effect at the time he filed his complaint. Under the version that Walters relies on, if an SEI is not filed with the candidate’s respective political party, the party official authorized to receive the candidate’s paperwork “must not certify the candidate subsequent to the election.”

Walters’ suit, which was filed before the Oct. 1 special election, sought to remove Kimpson’s and Shuman’s names from the ballot. He said before the suit was filed, State Election Commission spokesman Chris Whitmire informed him that he needed to contact the Charleston County GOP and Democratic Party chairmen to request that Kimpson and Shuman not be listed on the ballot.

Walters said he decided to file his suit after both chairmen declined his request.

The amended state law (S. 2, Act 61), which was signed by Haley on June 13, requires political party candidates, including incumbents, to file their SEIs electronically “for the preceding calendar year” before the close of filing “for the particular office.” Candidates who don’t meet the deadline face a civil fine but can remain on the ballot.

Kimpson and the State Election Commission in court papers contend that under the amended law, Kimpson would only face a civil fine if it were determined he didn’t properly fill out his SEI.

The amended law specifies it won’t take effect until receiving approval from the U.S. Department of Justice or the U.S. District Court for the District of Columbia. In previous years, South Carolina was one of nine states required to seek federal “preclearance” before election law changes could be implemented, though the U.S. Supreme Court in June ruled that the formula used in the federal Voting Rights Act for determining preclearance was unconstitutional.

Powell told The Nerve on Tuesday that given the June ruling, preclearance of the amended state law is not required.

Kimpson and the commission also argue the suit should be dismissed on the grounds that the issue is “moot” because the suit asks only that the names of Kimpson and Shuman be removed from the ballot, though the election was held and Kimpson was elected.

The commission’s response noted, citing a ruling  this year by the S.C. Supreme Court in an ethics case involving Haley when she was a House member, that a court can decide an ethics complaint against a lawmaker or legislative candidate during a 50-day period before an election, though the commission contends the exception doesn’t apply in Kimpson’s case.

Walters told The Nerve he believes the exception applies in his suit.

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