Power Play: Who Gets to Appoint the DOT Secretary?

June 22, 2015

Investigative Reports

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Power PlayBuried near the bottom of Act 114 of 2007 is one sentence that strips the governor of the authority to appoint the Department of Transportation secretary and gives that power to the already legislatively-controlled DOT Commission – effective Wednesday of next week.

The general public won’t find the sunset provision in the Code of Laws section on the General Assembly’s website. After The Nerve pointed that out recently to State Code Commissioner Jim Harrison, a former House member from Richland County, he said the code’s publisher would revise that section of the website, possibly as early as this summer.

Gov. Nikki Haley, who took office in 2011, has been largely silent about the sunset provision, though she reportedly supported legislation earlier this year that would have allowed her to appoint all the members of an expanded DOT Commission, which would have been given the authority to appoint the DOT secretary – the administrative head of the 4,300-employee, $1.6 billion agency.

But there was no overhaul of DOT this year as sought by Haley. The last major restructuring legislation was Act 114 of 2007, which gave the governor the power to appoint DOT’s administrative head instead of the DOT Commission, though it left the policy-making authority to the commission – all but one of whose eight members are elected by lawmakers.

Critics say DOT – an executive agency – effectively is still controlled by the Legislature with no accountability.

Haley’s first appointee to DOT secretary position, Robert St. Onge, abruptly resigned in January 2014 after he was arrested on a drunken driving charge. Her second appointee, Janet Oakley, unexpectedly announced June 1 that she was resigning – for still publicly unexplained reasons – though she offered to remain on the job until a replacement was found.

Lawmakers included a proviso in the proposed state budget for fiscal 2016 ( Proviso 84.16 in the amended House version) – which starts Wednesday of next week along with the sunset provision – that would keep the governor’s appointment power intact for next fiscal year.

And, in case a state budget isn’t passed by July 1, lawmakers came up with a backup plan: Last week, they amended a joint resolution (H. 4266), which primarily is intended to keep state government operating under current funding levels should they miss the July 1 deadline, to include suspending the sunset provision for next fiscal year.

But either strategy could invite legal challenges, some observers say. Critics contend, for example, that sticking the sunset-suspension clause in the state budget would violate the state constitution’s “one-subject” rule (Article III, Section 17) for legislation. In 2009, the S.C. Supreme Court ruled that if it found, going forward, an unconstitutional provision in a challenged law under the one-subject requirement, it would declare the entire law unconstitutional.

In effect, that could negate the entire state appropriations act for next fiscal year if the sunset provision is kept in the enacted bill and is successfully challenged, given the top court’s 2009 ruling.

Lawmakers are expected to act this week on a final compromise version of the $24 billion-plus total budget. A conference committee made up of Senate Finance Committee Chairman Hugh Leatherman, R-Florence and the Senate president pro tempore; Sen. Harvey Peeler, R-Cherokee; Sen. Nikki Setzler, D-Lexington; House Ways and Means Committee Chairman Brian White, R-Anderson; Rep. Mike Pitts, R-Laurens; and Rep. Bill Clyburn, D-Aiken, met over the weekend – reportedly behind closed doors – to work out differences between the chambers’ budget versions, though it was not known by publication of this story whether the proviso suspending the sunset provision was retained.

Giving the eight-member DOT Commission – seven members are elected by legislative delegations in the state’s seven congressional districts and one member is appointed by the governor – the power to appoint the DOT secretary by allowing the sunset provision to take effect also could invite a court challenge on the grounds of a constitutional separation-of-powers violation, some observers say. Before the 2007 law, the commission appointed the DOT director.

Still, the five-member Supreme Court – whose members are elected by lawmakers – generally has been reticent about reining in the Legislature’s power. In 2013, for example, the court ruled that the membership of Leatherman and Rep. Chip Limehouse, R- Charleston, on the legislatively controlled, seven-member State Transportation Infrastructure Bank Board of Directors– which critics contend has funded massive new construction projects over the years primarily for political reasons – didn’t violate the state constitutional ban on dual office-holding (Article III, Section 24) for lawmakers or the separation-of-powers provision (Article I, Section 8).

Leatherman, who’s been in the Senate since 1981, exerts considerable control over transportation projects in South Carolina through his memberships on various committees and boards. Besides being the Senate Finance Committee chairman and an Infrastructure Bank board member, he also is a member of the Joint Transportation Review Committee, which nominates candidates to the DOT Commission (including his son-in-law, John Hardee); the Joint Bond Review Committee chairman; a member of the Senate Transportation Committee; and a member of the governing panel of the Budget and Control Board, which is chaired by Haley.

In rare break with Senate protocol, Peeler, the Senate majority leader, publicly called last week on Leatherman to step down as the Senate president pro tempore, contending Leatherman has too many duties as the Senate’s leader and Senate Finance chairman.

Leatherman – arguably the state’s most-powerful lawmaker – didn’t resign any of his positions.

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