Proviso Aims to Quiet Ethics Agency

March 3, 2011

Investigative Reports

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The NerveGag me with a proviso.

One has to wonder whether that thought has crossed the minds of State Ethics Commission administrators regarding a proposal recently approved by a key committee of the S.C. General Assembly.

The measure, proviso 82.co, would prohibit Ethics Commission staff “from making any public comment which in any way reflects a personal opinion about any matter which is before or which is pending action before the commission or the commission staff.”

Rep. Murrell Smith, R-Sumter, says he was closely involved in drafting the proviso with Rep. Jim Merrill, R-Berkeley.

“No, this is not meant to be a gag order,” says Smith, an attorney and businessman.

Rather, the lawmaker says the measure is aimed at ensuring that the Ethics Commission acts impartially.

Created in 1975, the commission enforces state laws and rules governing ethics, campaign finance practices and lobbying activities. The commission features an administrative staff, which investigates allegations of wrongdoing, and a nine-member panel, which adjudicates the cases.

The commission exercises jurisdiction over the state’s nine constitutional officers and a handful of high-ranking appointed state officials as well as locally elected representatives.

Casting a shade of irony over the proviso, the commission does not have authority over state lawmakers. Instead, legislators police themselves via separate House and Senate Ethics committees. It is a long-criticized fox-guarding-the-henhouse arrangement, and some reform-minded lawmakers are trying to end it. (Keep reading for more about that.)

Asked about the origin of his proviso, Smith says several lawmakers are concerned about comments an Ethics Commission staffer made relating to matters pending before the commission.

Smith did not name the employee. But he did cite two examples.

Smith’s first example involved charges against former Gov. Mark Sanford, who paid $140,000 in fines and other costs to settle the proceeding with no admission of wrongdoing. In that case, Smith says a commission staffer stated at one point in reference to Sanford, “‘I don’t know what planet he lives on.’”

The second instance Smith mentioned relates to an ongoing Ethics Commission review of spending by Lt. Gov. Ken Ard.

In that case, Smith pointed to a Jan. 31 report by the Columbia Free Times, which quoted commission attorney Cathy Hazelwood saying in reference to Ard, “It seems like the man can’t eat a meal without putting it on his campaign account.”

Commission staff members “certainly have every right to talk to the press,” but such remarks are improper and inappropriate, Smith says. “And I think that [kind of commentary by commission staff] calls into question the impartiality of the Ethics Commission.”

Hazelwood declined to comment. Commission director Herbert Hayden also opted not to comment, referring questions to Smith and Merrill.

Smith says he had hoped the commission would promulgate a rule forbidding commission staff from making opinionated comments. But the commission hasn’t, so he and Merrill drafted the proviso, Smith says.

In fact, he says he has discussed the measure with Hayden “and, quite frankly, it’s my understanding that there’s not an objection to this proviso.”

The Ways and Means Committee, which writes the House version of the state budget, approved the proviso last week as part of the committee’s proposed spending plan for fiscal year 2011-12.

Efforts to reach Merrill last week were unsuccessful.

Meanwhile, lawmakers in both chambers of the Legislature are working to put an end to the longstanding, oft-criticized system of legislative self-enforcement of ethics requirements.

Sen. Mike Rose, R-Dorchester, already has a proposal pending to that effect, and now Republican Rep. Rick Quinn of Lexington says he is preparing to join him on the House side.

Quinn says he has been researching how other states handle legislative ethics and is working on a bill he plans to introduce later this week or early next week. “Forty states have some form of an independent ethics commission,” Quinn says.

His bill would put an entity separate from the General Assembly, such as the State Ethics Commission, in charge of investigating and prosecuting ethics cases involving lawmakers.

At the discretion of that independent body, a retired or sitting judge would preside over a case “depending on how complex it was,” Quinn says. “I’m leaving it up the commission.”

With the current system of legislators serving as prosecutor, judge and jury for themselves, he says, “It can present some conflicts.”

Rose’s proposal to disband that closed circle, which he describes as “outrageous and shameful,” is a constitutional amendment, S. 324.

It would expand the Legislature’s rule-making authority under Article 3, Section 12 of the S.C. Constitution such that the General Assembly could “grant concurrent or exclusive jurisdiction to investigate, adjudicate, and punish its members for allegations of ethical misconduct to a state agency, board, or commission.”

“What we need is independent scrutiny to make it honest,” Rose told The Nerve for an earlier story.

Passing a constitutional amendment requires a two-thirds vote by the House and Senate to put it on an election ballot, approval by a majority of voters and ratification by a majority of lawmakers in both chambers.

“I like Sen. Rose’s way of doing it,” Quinn says. “I just don’t think we’re going to get a two-thirds vote on this issue.”

As of Tuesday, no other senators had signed on to Rose’s proposed amendment since it was introduced on Jan. 11.

“But I think we’re both trying to accomplish many of the same things,” says Quinn, who is immediate past chairman of The Nerve’s parent organization, the South Carolina Policy Council.

Asked about the Ethics Commission proviso, Quinn said he was unaware of it but offered a positive review of Hazelwood, describing her as “pretty tough.” Said Quinn, “I like her challenging the system, myself.”

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