MY LAST NERVE: Legislators Continue to Buck Recusal Law

March 28, 2014

Inside Insight

Print Friendly, PDF & Email

legislators hiding moneyThe S.C. House Judiciary Committee took up a highly publicized bill earlier this week. The bill, commonly referred to as “Emma’s Law,” would impose tougher penalties on individuals convicted of DUI.

A narrative that continued to play out in the mainstream media as the bill headed to its first hearing was that the largely lawyer-legislator dominated subcommittee and committee had been, and was continuing to delay, consideration and a vote on the bill because of “self-interests.”

The House Judiciary Criminal Laws Subcommittee, to which the bill was referred in March of last year, is comprised of five members, four of whom are attorneys, and at least three of whom practice criminal law. The full House Judiciary Committee is comprised of 25 members. Of those 25, 19 are attorneys. At least five of those 19, either directly or through their law practices, have a stake in criminal law and specifically DUI offender representation.

Those five legislator-attorneys are Reps. Greg Delleney, R-Chester; Peter McCoy, R-Charleston; Chris Murphy, R-Dorchester; Todd Rutherford, D-Richland; and Bakari Sellers, D-Bamberg.

Why does any of this matter? In the past lawmakers have argued that their private-sector business experience somehow qualifies them as experts in promoting certain policy changes. Contradictory to that assessment, state law requires that lawmakers recuse themselves from in any way influencing public policy in areas where they stand to benefit.

The law is clear that public officials cannot use their official office for financial gain, stating that “no public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a family member, an individual with whom he is associated, or a business with which he is associated.”

The law further states a public official may not “make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a family member, an individual with whom he is associated, or a business with which he is associated has an economic interest.”

State law also requires disclosure by public officials when personal economic interests conflict with their government roles. Under the law, when public officials are required to take any action that may affect their personal economic interest (or that of a family member, an individual with whom he is associated, or a business with which he is associated) they shall “prepare a written statement describing the matter requiring the action or decisions and the nature of his potential conflict of interest with respect to the action or decision.”

If the public officials are legislators, those statements must be delivered to the presiding officer of their respective chamber, who should then “require that the member of the General Assembly be excused from votes, deliberations, and other action on the matter on which a potential conflict exists.”

In short, the law says that lawmakers should not even participate – let alone vote – on matters that may conflict with their business interests, their immediate family’s business interests, and also any economic benefit they may derive from the matter at hand.

In the case of the recent high-profile debate on “Emma’s Law,” not a single attorney who either directly represents DUI clients or works for a firm that does so, recused themselves from voting on the matter. In subcommittee, the vote was 3-2 in favor of passage – meaning every member of the committee voted. In full committee the vote was 22-0, with all members present voting. Regardless of whether one favors the proposal or not, accountability for following this law should be enforced, and at least five members of the committee should have abstained from voting, whether in subcommittee or full committee.

This is not a unique case of lawmakers flouting the law.

In December, The Nerve reported on a legislative proposal that would allow funeral homes to “keep the bodies of families’ loved ones until their funeral tabs are paid” while also eliminating the threat of having their professional licenses suspended or revoked if they refuse to “properly release a dead human body” to a person who has a legal right to the body. The bill’s sponsor is funeral home director and owner, Rep. John King, D-York.

In October, The Nerve reported that Sen. Luke Rankin, R-Horry, has received more than $2.8 million in legal fees from workers’ compensation cases from 2007 to 2012, while also serving as a member of the Senate Judiciary Committee, which screens Workers’ Compensation Commission candidates. Further, Rankin, who serves as the Senate Ethics Committee chairman, has co-sponsored at least nine bills dealing with workers’ compensation issues since 2007, and was a member of a Senate Judiciary subcommittee that debated at least seven other workers’ compensation-related bills.

There are several other instances where this has happened; however, legislators often cite what can only be construed as a loophole in the law which permits this behavior. Section 8-13-100 (11) (b) of the S.C. Code of Laws allows public officials to participate in, vote on, or influence or attempt to influence “an official decision if the only economic interest or reasonably foreseeable benefit to the official is gained by the official as a member of a profession, occupation, or large class to no greater extent than the economic interest or potential benefit could reasonably be foreseen to accrue to all other members of the profession, occupation, or large class.”

Translation? A lawmaker can promote legislation from which he, a family member, or a business with which he is associated benefits as long as others in their industry benefit.

It’s debatable as to whether this exception should exist. Too many instances have occurred throughout the years (and continue to occur) of legislators clearly violating the spirit of the law to gain an edge over their competitors who don’t have the same access as lawmakers.

Do you think it’s fair for lawmakers to use their position to benefit their industry or profession and ultimately themselves? Or, would you rather see your public official represent the interests of their constituents?