Market Bulletin Mystery Raises Legal, Constitutional Questions

March 26, 2012

Investigative Reports

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ConstitutionIt might sound like a trivial affair, but it actually carries legal and constitutional implications:

The S.C. Department of Agriculture and Gov. Nikki Haley’s office disagree about whether the department’s Market Bulletin publication is a money-losing operation.

If it is, Agriculture Commissioner Hugh Weathers could be bound by legal requirements and it is unclear whether he is adhering to them.

If it isn’t, Haley apparently erred in her executive budget for the 2012-13 fiscal year that starts July 1.

Call it the Market Bulletin mystery.

First published in 1913, Market Bulletin is like a Craigslist specifically for farm products.

The current iteration features a column by Weathers with his picture in color featured prominently on the front page.

The Agriculture Department produces Market Bulletin on the first and third Thursdays of each month and snail-mails or emails it to thousands of subscribers. A subscription is $10 per year. The cost is set under proviso 34.1 in the state budget.

Market Bulletin always has featured a column by the agriculture commissioner, according Agriculture Department spokeswoman Becky Walton.

But Weathers, a dairy farmer who has been commissioner since 2004, evidently is the first occupant of the office to include his mug with the commissioner’s column.

“At one point I think there was no picture (of the commissioner),” Walton, who has been public information director of the Agriculture agency since 1987, told The Nerve for an earlier story about politicians appearing in ads.

So what’s the what?

Well, the agriculture commissioner is a constitutional officer; and as such, he is bound by an S.C. Code of Laws provision (1-11-470 (B)) that says in part:

“No funds appropriated by the General Assembly may be used by a constitutional officer to print on, or distribute with, official documents extraneous promotional material … without unanimous prior written approval of the Budget and Control Board.”

The Budget and Control Board (BCB) has not received a request from the Agriculture Department to approve Weathers’ picture appearing in Market Bulletin, according to BCB spokeswoman Lindsey Kremlick.

“We have been informed by the Department of Agriculture that appropriated funds are not used at this time to print the Market Bulletin,” Kremlick said in an email.

An opinion from the state Attorney General’s Office, however, suggests the commissioner might need such written authorization from the BCB.

Walton told The Nerve for that first story that Weathers’ picture was approved to appear in Market Bulletin, but she wasn’t sure who OK’d it.

Self-Supporting?

Walton also said then that Market Bulletin is self-supporting via the subscription cost. “It pays for itself,” she said, adding in an email:

“Since 2001, no appropriated funds have been used to publish the periodical, and there is no paid advertising. Since the funds used to publish the Market Bulletin are not appropriated funds and since no advertising space is being purchased, outside approval is not necessary.”

Well then, that settles it, right?

Not exactly.

In her 2012-13 executive budget, Haley describes Market Bulletin as a “money-losing” endeavor, and she proposes codifying and changing the proviso to allow Agriculture to set its subscription rate, rather than the amount being defined in the proviso as it is now.

The House, in its recently passed 2012-13 spending plan, left the proviso unchanged.

Haley also recommends increasing Agriculture’s authorized “other” funds for Market Bulletin (other being neither federal nor state general fund dollars) from $180,000 to $400,000 “to account for the additional revenue potentially available if the Department raises subscription fees to the rate that would fully offset the costs of producing the publication.”

The agency requested nearly $400,000 for Market Bulletin for 2012-13.

Asked in an interview for this story about Haley’s budget describing Market Bulletin as “money-losing,” Walton responded, “Oh, that is just incredible.” She said she would look into it and get back in touch.

Walton did follow up, but she did not address the discrepancy in her assertion that Market Bulletin is self-supporting and Haley’s contention that the Agriculture agency subsidizes it. In an email, Walton reiterated that the publication’s revenue “is derived from subscription fees, not from advertisements.”

Later asked again to speak to the different accounts of the bulletin’s finances, Walton said it qualifies for a discounted postage rate as an agricultural periodical. Although the department is authorized to charge for the ads in it, she said, the agency doesn’t because doing so would nullify the reduced postage fee.

“Even with the agricultural periodical designation, the postage rate has increased nearly 60% in the past 10 years,” Walton said in an email. “Yet, the Market Bulletin does not use appropriated funding. Since we talked last month, we are now at or near a break-even point. With that in mind, we are evaluating all options for the future of the Market Bulletin.”

Haley spokesman Rob Godfrey did not respond to email and phone messages seeking comment and clarification on this conundrum.

Attorney General’s Opinion

Meanwhile, less than a month after that first Nerve story was published in April 2010, Anne Crocker, the Agriculture Department’s general counsel, sent a letter to then-state Attorney General Henry McMaster seeking a legal opinion.

The letter asked whether the state law pertaining to constitutional officers using appropriated state money to print or distribute documents and promotional material applies to “brochures, print advertisements, tv commercials and radio airtime” the agency uses to promote South Carolina agricultural products.

Crocker cited two other sections of state law that assign the commissioner to that advocacy role.

Replying to Crocker, the Attorney General’s Office said the laws about constitutional officers not using appropriated money to print promo material without BCB approval, and the commissioner being tasked with advocating state agricultural products, appear to conflict.

But the latter creates an exception to the former, the AG’s Office said. “If a court finds that the two cannot be harmonized, the specific (promoting state agriculture) statute would trump the general (constitutional officers) statute,” the opinion says.

The office hastened to add, though:

“Nevertheless, one should note that the Commissioner of Agriculture is likely bound by S.C. Code 1-11-470, meaning he or she may not use funds appropriated by the General Assembly for personal benefit or to gain name recognition across the state except in compliance with said provision.”

Attorney general’s opinions are not binding, but are considered authoritative guides on legal questions.

In her request for an opinion, Crocker included samples of some of the Agriculture Department’s promotional materials. Market Bulletin, however, was not among them, and Weathers’ likeness was not featured in any of the examples she provided.

Thus, at least for now it remains in question whether Market Bulletin gets state taxpayer dollars – and, if so, whether the agriculture commissioner needs written approval from the BCB for his picture to appear in the publication.

Reach Ward at (803) 254-4411 or eric@thenerve.org.

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