S.C. Politicians Still Legislating Behind Closed Doors

August 25, 2014

Investigative Reports

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SC HouseThe Marriott Grande Dunes hotel on its website bills itself as a “stunning gateway in Myrtle Beach with the perfect balance of resort comfort and business-friendly amenities,” boasting “45,000 square feet of flexible meeting space at our oceanfront resort.”

It was the site of this year’s annual S.C. House GOP Caucus retreat, where House Speaker Bobby Harrell, R-Charleston and the caucus leader, in a surprise announcement declared that the state grand jury investigation of him had ended, and that S.C. Attorney General Alan Wilson had transferred the case to David Pascoe, the solicitor based in Orangeburg.

But there were other matters discussed by the 78-member caucus behind closed doors on Aug. 16, including the House Republicans’ agenda for next year’s legislative session, several legislative sources told The Nerve.

Some are questioning whether those discussions violated the state’s Freedom of Information Act, which requires that “(e)very meeting of all public bodies shall be open to the public” unless specifically exempted. The law also bans any “chance meeting, social meeting, or electronic communication” in “circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.”

“When you have a party as dominant as the Republican Party is, discussions that are made at certain functions are determinative of the legislative process,” said John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, when contacted last week by The Nerve. “So they (caucus meetings) are part of the legislative process, and as such, they should be open to the public.”

Crangle said the Aug. 16 caucus meeting was essentially a prelude to the 2015 legislative session, describing it as a “meeting before the meeting.”

“The House Republican Caucus constitutes a quorum of the full House,” Bill Rogers, executive director of the South Carolina Press Association, told The Nerve. “Under the law, their meetings shouldn’t be off the record.”

The House has 124 members; the 78 Republicans represent about 63 percent of the total.

Conducting the public’s business behind closed doors often has been the norm for the 170-member General Assembly. One of the most egregious examples from this year’s legislative session was the adoption of the $25 billion-plus state budget: Instead of having a conference committee made up of Senate and House members hash out a final version in open meetings, as has typically been done in past years, Senate Finance Committee Chairman Hugh Leatherman, R-Florence, and House Ways and Means Committee Chairman Brian White, R-Anderson, along with several of their staff members, produced a compromise version in secret.

Contacted this week by The Nerve, Jay Bender, the Press Association’s attorney, said although he believes the legislative caucuses generally are public bodies under the FOIA, whether the Aug. 16 caucus meeting should have been open to the public is not as clear cut.

“I think it is a more difficult question when the body (the full Legislature) has adjourned (for the year),” Bender said. “The Legislature has no authority as a body unless it is session.”

This year’s legislative session started on Jan. 14 and ended on June 19. The House is scheduled to return Wednesday for a one-day special session to consider whether to override Gov. Nikki Haley’s vetoes on two relatively minor Senate bills – one that would allow a criminal misdemeanor charge to be issued to those who enter a library after being previously warned to stay away for creating disturbances, and another that would allow a tax increase in the Murrells Inlet-Garden City Fire District.

Harrell’s spokesman, Greg Foster, earlier told the (Charleston) Post & Courier newspaper that Harrell planned to poll House members at the caucus retreat whether they supported the one-day special session – which would cost taxpayers approximately $34,000 – though a legislative source told The Nerve after the Aug 16 meeting that the matter wasn’t discussed in the meeting.

The caucus during its private meeting talked about its agenda for the new legislative session that starts in January; topics included reforming state ethics and income tax laws, along with reforms at the state Department of Transportation, several sources told The Nerve.

Charles Cannon, executive director of the House GOP Caucus, and House Majority Leader Bruce Bannister, R-Greenville, did not respond to written or phone messages last week from The Nerve seeking comment about the Aug. 16 meeting.

Bender said if the caucus retreat received any public funding, the meeting where legislation was discussed should have been open to the public. House Clerk Charles Reid did not respond last week to written questions from The Nerve, including whether the retreat was supported with any tax dollars.

The House GOP Caucus’ office is in the Blatt Building, where House members’ offices are located, on the State House grounds.

A legislative source told The Nerve it was his understanding that the cost of the hotel meeting room and certain other costs of the caucus retreat were covered by the caucus, with individual House members responsible for their own room costs – paid either with their own money or campaign funds.

But many Republican House members wouldn’t necessarily have to tap their bank or campaign accounts for the retreat if they held onto caucus money given to them earlier this year. State Ethics Commission records show 62 Republican House candidates received $1,000 individual contributions from the caucus in February; of those, 13 candidates facing primary elections each received an additional $4,000.

The Nerve in May reported that from 2010 through 2012, the House Republican Caucus Committee made 82 donations in mainly $5,000 amounts, totaling $397,000, to GOP House candidates, including $5,000 to Harrell. The Nerve also revealed then a political action committee with ties to Harrell, known as the Palmetto Leadership Council (PLC), donated a collective $332,750 from 2009 through 2013 to Republican organizations – $290,750 of which went to the House GOP Caucus. The PLC contributed an additional $214,500 to candidates over the period, mostly $1,000 individual contributions to incumbent Republican House members, records show.

During this year’s legislative session, the House Republican Caucus usually met as a group in the Blatt Building on Tuesday mornings. Those meetings typically were open to the public, though follow-up afternoon caucus meetings often were closed.

The House caucus meetings usually were posted in advance on the Legislature’s website, in contrast to Senate GOP Caucus meetings. Of the 46-member Senate, 28 senators, or about 61 percent, are Republicans.

Longtime Sen. John Courson, R-Richland and who served as the senate president pro tempore before Leatherman assumed the position in June, told The Nerve when contacted last week that Senate Republican and Democratic caucus meetings during session were closed to the public.

“It’s always been that way,” Courson said. “I assume the rationale behind closed meetings by both caucuses is that they are party functions.”

Asked if Senate caucus meetings should be public, especially if pending legislation is discussed, Courson replied, “I don’t recall any discussion whether it should be open or closed.”

The FOIA allows the Legislature to meet in “executive sessions authorized by the Constitution of this State and rules adopted pursuant thereto.” Courson said the purpose of those closed meetings typically is to allow senators to discuss, though not vote on, the qualifications of gubernatorial nominees to various boards, which he described as “personnel issues” exempted from the open meetings law.

“Nothing as far as legislation or party politics is discussed,” he said.

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