Progress Lacking on Some Ethics-Reform Proposals

February 26, 2013

Investigative Reports

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Press Conference Ethics ReformOne month after the S.C. Commission on Ethics Reform announced sweeping changes to bring more transparency and accountability to state government, the progress on legislation addressing those recommendations could be graded “average.”

The ethics-reform report focuses on the issues of government accountability, income disclosure, campaign finance and lobbyist reporting, open-records requests and enforcement of ethics laws.

But some of the proposals by the 11-member, governor-appointed task force have not yet materialized in legislation, a review by The Nerve found, though observers say related bills are expected to be introduced soon.

“We believe all of what we recommended is going to be adopted,” said former state Attorney General Henry McMaster, who along with former Attorney General Travis Medlock chaired the Commission on Ethics Reform.

Several of the commission’s proposals are included in an eight-point reform agenda announced last year by the South Carolina Policy Council, the parent organization of The Nerve.

A key recommendation in the Ethics Reform Commission’s report calls on forcing lawmakers to reveal their public and private sources of income, including that of their spouse and dependent children. It would extend to local government officials, school board members and those working for a special-purpose district.

Other recommendations include having the State Ethics Commission take over investigations of ethics-law violations involving members of the General Assembly, creating a “Public Integrity Unit” in the Attorney General’s Office, eliminating the legislative exemption for certain records requests, and moving appeals of open-records requests to the state Administrative Law Court.

Contacted by The Nerve last week, McMaster said he hasn’t heard any lawmaker say, “‘That’s a terrible idea (any of the commission’s 23 recommendations), and we don’t think it will pass.’”

Medlock did not return a message from The Nerve seeking comment for this story. He said at the time of the report’s release the biggest issue would be the willingness of lawmakers to disclose their private sources of income. Currently, lawmakers have to disclose only their taxpayer-funded income for themselves, their spouse and dependent children.

Both houses of the General Assembly have bills that would address many – but not all – of the ethics commission’s recommendations. Sen. Wes Hayes, R-York and former chairman of the Senate Ethics Committee, has taken the lead on this issue with three bills: S. 338, S 346 and S. 347. A hearing is set for March 7 before a Senate Judiciary subcommittee.

Hayes said S. 346 would allow a constitutional ballot issue in a future election to give the State Ethics Commission power to discipline members of the General Assembly for ethical misconduct. The House and Senate Ethics committees would not be eliminated, retaining the power of expulsion from the Legislature, as well as discipline for minor matters.

S. 347 is the enabling legislation to implement S. 346, if voters approve it in a future election. Both bills have eight co-sponsors from both sides of the aisle.

“I think that clearly (by) putting the House and Senate under the executive branch, we need to amend the state constitution,” Hayes said.

Some lawmakers could raise the issue of “separation of powers,” which the Ethics Reform Commission addressed in its report.

James Burns, a partner at the Columbia-based law firm of Nelson Mullins, serves as counsel for the Ethics Reform Commission.

“Anyone who raises the separation-of-powers issue, show us what you’ve got,” Burns told The Nerve. “Separation of powers isn’t a one-way street.”

The “2013 Ethics Reform Act,” or S. 338, has 11 co-sponsors from both sides of the aisle. Hayes said that bill would:

  • Require political committees to file expense reports. This would address the state’s definition of “committees”; two federal courts ruled the old definition was too broad. As a result of those decisions, groups have been able to raise and spend unlimited amounts of money from undisclosed sources;
  • Require lawmakers to disclose all sources of income; and
  • Ban leadership political-action committees.

Hayes said he believes his legislation supports many of the recommendations in the ethics commission report.

“I think everything is lining up for us to pass ethics reform,” he said.

On the House side, freshman Rep. Beth Bernstein, D-Richland, has sponsored an ethics-reform bill, H. 3407.

Her bill would prohibit political-action committees organized by constitutional officers and members of the General Assembly. House Speaker Bobby Harrell, R-Charleston, has been tied to a leadership PAC known as the Palmetto Leadership Council, though he has maintained he has no direct involvement.

Bernstein’s bill also would:

  • Allow the State Ethics Commission to investigate ethical misconduct of legislators;
  • Require disclosure of all governmental income, including income from the federal government;
  • Prohibit lawmakers from serving as lobbyists for five years after leaving office instead of the current one-year ban;
  • Strengthen the reporting requirements for gifts and income on lawmakers’ statements of economic interest; and
  • Require copies of receipts for all campaign expenditures to be included on certified campaign reports.

“I may be idealistic, but I would hope (we can pass ethics reform),” Bernstein said when contacted by The Nerve.

Jay Lucas, R-Darlington and the House speaker pro tempore, also has two ethics-reform bills. H. 3422, which is co-sponsored by Harrell and Rep. Greg Delleney, R-Chester and the House Judiciary Committee chairman, would bar lawmakers from taking contributions from some political groups.

“We don’t need candidates funding other candidates,” Lucas said when contacted last week by The Nerve.

Lucas’ other bill, H. 3249, would require disclosure of all federal sources of income for public officials and their immediate family members, in addition to existing state sources of income.

“That’s money that should be reported,” said Lucas.

Two ideas not in legislative bills now, but are expected to be forthcoming, are the creation of a Public Integrity Unit in the state Attorney General’s Office, and a provision for better protection of state employees who become whistleblowers on corruption.

A source close to the legislative process told The Nerve Monday that the House GOP ethics study group will file a bill soon that would create the new unit,  a multi-agency body which, under a proposal by the Ethics Reform Commission, would investigate potentially criminal ethics violations by state lawmakers.

Rep. Murrell Smith, R-Sumter and the head of that study group, did not return a message to The Nerve Monday seeking comment.

Additionally, Sen. Gerald Malloy, D-Darlington, told The Nerve Monday the whistleblower-protection proposal will come either as legislation or an amendment to an ethics-reform bill.

“We need to incentivize people to report corruption in state government,” John Crangle, executive director of Common Cause of South Carolina, said Monday when contacted by The Nerve. “It’s something we’ve been interested in the past couple of years.”

Meanwhile, a bill that would help citizens obtain public documents faster, and with a new appeal process, is before the House Judiciary Committee.

Rep. Bill Taylor, R-Aiken, has sponsored H. 3163, which would:

  • Establish a deadline of 10 working days for responses to requests under the state Freedom of Information Act, an improvement from the current 15 business days. The Ethics Reform Commission wanted seven calendar days, which was language in the introduced bill;
  • Establish a deadline of 30 days to fill the request. No deadline exists now;
  • Continue to allow public entities to charge fees for searching for records, though the fees would have to be “reasonable” as defined in the legislation;
  • Create the “Office of Freedom of Information Review” within the Administrative Law Court for appeals of open-records requests, taking that function away from the state circuit courts; and
  • Enhance penalties in the law for violations of the FOIA, though prosecutions are rare.

A loophole in the open-records law allows lawmakers to exempt their correspondence and “working papers” from public disclosure. Taylor’s bill could be amended by the House Judiciary Committee to eliminate the exemption.

Olson can be reached at (803) 254-4411 or curt@thenerve.org. Follow him on Twitter @thenerve_curt and @olson_curt. Follow The Nerve on Facebook and on Twitter @thenervesc.