S.C. Supreme Court Silent on Double-Dipping Claims

December 17, 2012

Investigative Reports

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Money on scaleThe state’s top court doesn’t always interpret the S.C. Freedom of Information Act liberally – especially when it comes to itself.

The Nerve in October submitted a Freedom of Information Act to Supreme Court Chief Justice Jean Toal seeking records relating to her office’s investigation into allegations of double dipping by some county magistrates who also serve as local municipal judges.

In a July 23 memo obtained by The Nerve, Toal said she “remains concerned that some of you are serving your respective municipal courts during times of the day when you are assigned to be serving as a magistrate, thereby being paid twice for the same hours.”

“This was not the intent of the orders of various Chief Justices authorizing magistrates to serve as municipal judges,” Toal continued.

The Nerve first reported about the problem in August.

Toal in her memo did not identify any of the magistrates in question or say how many might be involved.The Nerve submitted a Freedom of Information Act request for records related to the memo after court officials at the time declined to comment.

The high court made it clear in its Nov. 21 response to the FOIA request that it didn’t intend to release any records.

“Since this information, documents and records were part of the deliberative process of the Chief Justice as the administrative head of the Unified Judicial System, this information, documents and records are privileged,” Dan Shearouse, the Supreme Court’s clerk of court, wrote.

“Further,” Shearouse continued, “any research that was conducted was done by attorneys employed by the South Carolina Judicial Department or by personnel working under the supervision of those attorneys. Therefore, any documents or records that these employees may have created are subject to the attorney-client privilege.”

Shearouse didn’t cite any law supporting his denial of the request. The Freedom of Information Act contains no specific exemption for records related to the “deliberative process” of the chief justice.

The open-records law does exempt “correspondence or work products of legal counsel for a public body and any other material that would violate attorney-client relationships.” But ironically, the Supreme Court in a 2011 ruling said governing bodies couldn’t issue blanket denials of requests under the Freedom of Information Act based on attorney-client privilege.

“”The General Assembly, by the clear language of the statute, believes (the) FOIA should be broadly construed to allow the public to gain access to public records,” Justice Kaye Hearn wrote for the court. “The interest in confidentiality expressed through the attorney-client privilege should not trump the public’s right to know at this juncture.”

Toal did not participate in that ruling.

Of 306 county magistrates in the state, 56, or 18 percent, also serve as local municipal judges in their respective counties, according to Judicial Department records provided to The Nerve for the August story. Of those, at least 16 serve two or more municipalities, records showed.

Earlier this year, Aiken County resident Jim Bouknight filed several complaints with the S.C. Office of Disciplinary Counsel alleging the double-dipping issue with certain magistrates, according to documents provided by Bouknight to The Nerve.

In one case, Bouknight alleged that a magistrate serving as a municipal judge was earning more than $139,000 annually between the two jobs, most of which was paid by a county and the balance funded by a municipality.

The Office of Disciplinary Counsel – a division of the Supreme Court – dismissed Bouknight’s allegations, contending in written responses to him that his complaint “involves matters that would not constitute misconduct or incapacity under these (ethics) rules even if true, and, as such, are outside the jurisdiction of this office and the Commission on Judicial Conduct.”

Bouknight asked Toal in writing to investigate the matter, which resulted in her July 23 memo to all magistrates who serve as municipal judges, chief magistrates and associate chief magistrates.

Contacted Sunday, Bouknight said he wasn’t surprised by the high court’s denial of the The Nerve’sFOIA request.

“None of that is privileged,” he said. “She (Toal) needs to quote the law that says it’s privileged.”

Bouknight said state Rep. Bill Taylor, R-Aiken, earlier indicated he planned to talk with Toal about the double-dipping issue. But he said he hasn’t received any response from Taylor, who was the author of an FOIA-reform bill that died in the Senate at the end of this year’s regular legislative session.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.