The ‘Destroyed’ Ethics Commission Letter Saga Continues

March 12, 2014

Investigative Reports

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Delete KeyFirst, he said the letter was destroyed.

Now, he contends the letter exists, but only as an unsigned draft.

The Nerve can show, however, that those claims and others by State Ethics Commission Executive Director Herb Hayden are not true or misleading.

A bit of background: On Sept. 5, The Nerve submitted a request under the S.C. Freedom of Information Act to Hayden for a copy of an Aug. 28 letter written by Cathy Hazelwood, the commission’s deputy director and chief attorney, to Gov. Nikki Haley.

In that letter, Hazelwood directed Haley, a Republican, to reimburse the state for the costs of travel for her and her campaign staff to attend a fundraising event on June 27 at a North Carolina resort for a group with ties to GOP N.C. Gov. Pat McCrory.

Questions about the costs of the trip first arose after media outlets in August reported that the State Law Enforcement Division, which provides security for Haley, had not initially revealed that she was involved in a traffic accident at the resort involving a state-owned vehicle driven by a SLED agent. Haley was not injured, according to authorities.

Although Haley’s campaign staff had received campaign contributions that day, Hayden told The Nerve in a Sept. 30 email that when he learned the event was a fundraiser for a “non-profit and not a campaign event, I determined that the letter (written by Hazelwood to Haley) was not necessary.”

In his initial Sept. 26 email response to The Nerve’s FOIA request, Hayden said only, “No letter was sent to Governor Haley.”

When The Nerve in a follow-up request on Sept. 27 pointed out that the FOIA required the release of the letter regardless of whether it was sent to Haley, Hayden in an email response that day said, “The letter was destroyed when the decision was made that it was not necessary.”

After The Nerve on Sept. 30 requested under the FOIA an electronic copy of the letter, Hayden replied by email that the letter was “destroyed, both hard copy and electronic copy.”

The Nerve, however, on Nov. 27 obtained, through another FOIA request, an Aug. 28 email from Hazelwood to Butch Bowers, an attorney for Haley, which contained a scanned, signed copy of the letter.

“The letter I mailed is attached,” Hazelwood told Bowers in the email, which was copied to Hayden.

After The Nerve on Dec. 2 reported the existence of the letter, the South Carolina Public Interest Foundation, a Greenville-based, government watchdog organization, and Edward “Ned” Sloan, the foundation president, filed a lawsuit against Hayden and the Ethics Commission, contending that by “responding with a falsehood, Defendants have violated (the) FOIA.”

The Jan. 10 suit, filed in Richland County Circuit Court, asks for a judge’s ruling that Hayden and the commission violated the FOIA, the awarding of plaintiff attorney fees and costs as allowed under state law, and “such other and further relief as the Court deems and proper.”

In their formal response, a copy of which The Nerve obtained last week, Hayden and the commission denied they violated the FOIA, contending that the Aug. 28 letter was “nothing more than a ‘draft’ and was arguably not a ‘public record’ under the FOIA.”

They also said in their response that the letter was “never signed nor was it formally transmitted to the governor via the United State Mails.”

The defendants ask that the suit be dismissed, that they be awarded their costs of defending the suit, and “such other and further relief as this Honorable Court deems just and proper.”

Hayden did not respond Monday to written questions submitted by The Nerve asking him to explain the discrepancies between the lawsuit response and written documents obtained by The Nerve.

Christian Stegmaier, an attorney with the Columbia law firm of Collins & Lacy, which represents the defendants, declined comment when contacted this week by The Nerve, saying only in an email response, “As we understand and apply the rules governing the practice of law in South Carolina, we are constrained from making any public comment regarding pending litigation” involving Hayden and the commission.

Sloan also declined comment on the defendants’ response to the suit when contacted by The Nerve.

Bill Rogers executive director of the South Carolina Press Association, described the defendants’ legal arguments as “ridiculous.”

The Nerve, through its parent organization, the South Carolina Policy Council, is an associate member of the Press Association.

“The FOIA doesn’t have a ‘draft’ exemption,” Rogers told The Nerve last week. “I think by definition, the Ethics Commission should follow the highest standards.”

The Ethics Commission, an agency governed by a nine-member panel appointed by the governor with consent of the General Assembly, is charged with monitoring the governor and other elected state officials – excluding legislators – local elected officials, lobbyists and their clients to make sure they comply with state ethics laws.

Jay Bender, the Press Association’s attorney, told The Nerve last week that a draft of a letter by a public agency, “even if it’s only in a computer, is a public record.”

“It becomes a public record when it is created or when it’s in the possession of a public body,” he said.

As for Hayden’s initial claim that the Aug. 28 letter to Haley was destroyed, Bender said, “You can’t destroy a record just because you don’t like it.”

The S.C. General Assembly has been considering a bill (H. 3163) since last year that would strengthen the FOIA by, among other things, shortening the time period for agencies to respond to requests and provide the requested records, and requiring that copies of records be furnished at a cost that can’t “exceed the prevailing commercial rate.”

The bill, sponsored by Rep. Bill Taylor, R-Aiken, passed the House Judiciary Committee in February 2013 but was sent back to the committee from the House floor less than a month later. It hasn’t moved out of committee since then.

The main sticking point, observers say, is an amendment that would do away with an exemption allowing legislators to keep secret their “correspondence” and “working papers.”

The Nerve first reported about the exemption in its inaugural week in January 2010, pointing out that lawmakers had claimed it in denying multiple FOIA requests by The Nerve for their correspondence related to a massive taxpayer-funded incentives package that they approved for the Boeing assembly plant in North Charleston.

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