State Ethics Director Mum on Questions Surrounding Agency Records

September 30, 2013

Investigative Reports

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By RICK BRUNDRETT

“No letter was sent to Gov. Haley.” Only there was.

When it comes to transparency, the State Ethics Commission’s executive director isn’t exactly practicing what his agency demands of public officials and candidates for office.

Consider Director Herb Hayden’s response last week to a Sept. 5 request by The Nerve for various agency records under the S.C. Freedom of Information Act:

The Nerve asked for a copy of a letter written by Cathy Hazelwood, the commission’s attorney and deputy director, to Gov. Nikki Haley’s campaign asking that it reimburse the state for providing a security detail for the governor during a June trip to North Carolina.

Hayden’s response?

“The letter was destroyed when the decision was made it was not necessary,” he said in an email Friday morning, noting in an initial email response Thursday evening, “No letter was sent to Governor Haley.”

Hayden didn’t respond to a follow-up question about whether an electronic copy of the letter existed. Under the Freedom of Information Act, electronic records are considered public records and must be released upon request unless specifically exempted by law.

Hayden made headlines last month when he announced that Haley’s campaign will not have to reimburse the state for the cost of State Law Enforcement Division agents who accompanied Haley on a North Carolina trip in late June sponsored by a foundation supporting Republican N.C. Gov. Pat McCrory. Haley, a Republican, received $36,500 from North Carolina-based donors during the trip period, and a state-owned vehicle in which she was a passenger was involved in a minor traffic accident then, according a State newspaper story.

Hayden’s announcement contradicted – and effectively negated – an earlier decision by Hazelwood to send a letter to Haley’s campaign requesting reimbursement for the costs of the security detail.

Besides Hazelwood’s letter, The Nerve in its Sept. 5 FOIA request also asked Hayden and Hazelwood for copies of all commission records pertaining to Haley’s appointments earlier this year of James Warren of Greenville and Twana Burris-Alcide of Rock Hill to the commission.

The Nerve in a July 29 story revealed that that the appointments violated state law because neither appointment was confirmed by the S.C. House. Both candidates were confirmed earlier this year by the Senate, but not the House.

By the next day, the names of Warren and Burris-Alcide were removed from the commission’s website, which now lists four of nine seats –all of which are appointed by the governor – as being vacant. The remaining five commission members are in “holdover” status, meaning they can continue to serve though their terms have expired, but can be removed from the commission by Haley at any time, according to John Crangle, director of Common Cause of South Carolina, a government watchdog organization.

In response to The Nerve’s FOIA request, Hayden provided copies of Haley’s appointment letters to the Senate for Warren and Burris-Alcide; resumes of both candidates, both of whom are attorneys; confirmation letters on their appointments from Senate Clerk Jeffrey Gossett; and welcome letters to the pair from Hayden.

Also included was a letter from House Clerk Charles Reid to Haley on July 25 – the day after The Nervefirst contacted House Ethics Committee Chairman Kenny Bingham, R-Lexington, about the appointments of Warren and Burris-Alcide – informing Haley that the House had not acted on the two appointments and asking her to send appointment letters to the House “so that the appointment procedures may be carried out as soon as possible.”

No emails regarding their appointments were included in the documents provided to The Nerve. In a follow-up email response Friday to The Nerve, Hayden said only, “There were no emails.”

In a related matter, The Nerve in its Sept. 5 FOIA request also asked if Warren or Burris-Alcide participated in any commission votes or discussion regarding a July 15 “consent” order in which Haley agreed to pay a $3,500 fine for a reduced list of campaign-reporting violations – after more than a year of secret negotiations between her campaign and the commission.

In his initial email response Thursday evening, Hayden said neither Warren nor Burris-Alcide – who each attended at least one commission meeting earlier this year, according to meeting minutes, though their appointments violated state law –  “participated in any open session/public action relating to the Haley consent order.”

When The Nerve asked a follow-up question about whether the pair participated in any closed, executive sessions on the settlement, Hayden offered the following short reply:

“Action taken in executive session is confidential.”

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