Different Standards for Different Officials?

SOME GET THE BOOK THROWN AT THEM, SOME GET SLAPPED ON THE WRIST, AND SOME GET IGNORED

Action on ethics charges has been almost non-existent in South Carolina until recently, and even now it appears to be selectively taken. The matrix here documents several matters that have been investigated, are in the process of being investigated, or should be investigated for violations of the Ethics Act. Many of these cases involve ethics violations of the same nature – yet the processes and outcomes are startlingly different.

Speaker Harrell

A complaint filed against the Speaker alleges multiple violations of state law.  It’s alleged that he solicited business for his private company in a letter to potential clients that deliberately mentioned his official position. State law prohibits public officials from using their official position for financial gain. Further, the Speaker used his campaign funds to reimburse himself more than $325,000 – much of which was used to pay the taxes, depreciation and loan on his private plane, and none of which is specifically documented as state law requires for all campaign expenditures. Rep. Mitchell, incidentally, is currently under investigation by the House Ethics Committee for similar violations. In his case, Rep. Mitchell is being questioned about 12 checks he wrote in 2008 to himself or his wife for a total of more than $7,800.

The Speaker has also continually violated a law that prohibits public officials from causing the employment of a family member, and which states that a public official may not participate in the discipline of a public employee who is a family member. In this matter, the Speaker appointed his brother to the Judicial Merit Selection Commission (JMSC). The law clearly states that non-legislative members of the JMSC are subject to removal by the appointer – in this case, the Speaker’s brother could only be removed from the commission by the Speaker himself.

Sen. Jake Knotts

After a preliminary investigation, the Senate Ethics Committee met in executive session – proceedings that occur out of public view and without public input – and decided to move forward with an investigation into the former senator’s campaign finances through the avenue of an official complaint. Proceedings on the complaint by the Senate Ethics Committee also occurred in executive session. While the members of the Committee found that the former senator had committed multiple ethics and campaign finance violations (violation of state law), the Committee did not refer the matter to the Attorney General, as state law requires when an investigation alleges criminal violations. Rather, the Committee chose to issue a “public reprimand” against Knotts – a comparatively negligible punishment. The former senator was ordered to keep better records and reimburse the contributions he took over the limit.

Sen. Robert Ford

Former Senator Ford’s belief that he was a “sacrificial lamb” has at least some basis in reality. Ford was accused of using campaign funds since July 2009 for such things as car payments, gym memberships, adult superstore items and a male-enhancement drug. He was also accused of diverting approximately $19,000 in campaign contributions to his personal account, making multiple over-the-limit cash withdrawals from his campaign account, falsifying campaign reports to reflect thousands of dollars in expenditures that he never paid, and taking out an $8,000 campaign loan and using it for a constituent’s home repairs. In contrast to former Senator Knotts’ secretive investigation and hearings, Ford’s hearings – and findings of the investigation – were live-streamed from the State House over the internet for all with access to see. The former senator resigned before the Ethics Committee could issue any findings. Even with his resignation, the Senate Ethics Committee referred Ford’s case to the Attorney General’s office for further investigation – also unlike former Senator Knotts’ case.

Rep. Harold Mitchell

Rep. Mitchell is the current subject of a House Ethics Committee investigation into allegations that he failed to report expenditures from his campaign account, used campaign funds for personal expenses, and failed to maintain proper records for campaign account expenditures. He is being questioned about 12 checks he wrote in 2008 to himself or his wife for a total of more than $7,800. Mitchell has also been questioned for withdrawing $400 to pay his cell phone bill in cash rather than writing a check to T-Mobile directly. This practice has also been used by Speaker Harrell in the past. Reports show that Harrell paid himself more than $16,000 since 2008 to cover phone and internet costs and other “communications” and “computer services” costs rather than pay a provider directly.

In another interesting comparison, Rep. Mitchell’s House Ethics Committee investigation was prompted by his guilty plea in November 2012 to misdemeanor charges of not filing his 2007 and 2008 returns on time. Rep. Kris Crawford (a House Republican) was found guilty of misdemeanor tax evasion for failing to file tax returns from 2004 and 2007 in a timely manner. He, however, was not subsequently investigated by the House Ethics Committee.

Lt. Governor Ken Ard

The investigation into former Lt Governor Ken Ard took the Attorney General’s office and the State Law Enforcement Division (SLED) nine months. Not only was Ard investigated by SLED; he was also the subject of a State Ethics Commission investigation that found he violated the Ethics Act on more than 107 occasions. The charges in the indictment against him included unlawful reimbursement of campaign funds, false reporting, and use of campaign funds for personal use. Some of the expenditures under that last charge included things like a PlayStation, a flat-screen television, two iPads, football tickets to the SEC championship game, and a dress for his wife. While all are violations under state law, Ard’s expenditures do not seem to rise to the level of the Speaker’s reimbursement of expenses for his personal plane from his campaign account – $94,000 for flights, $14,980 for insurance, $19,497 in Charleston County property taxes, $37,629 in loan interest expenses, and $32,758 in depreciation costs.

Whether the same level of scrutiny is applied to the Speaker of the House as was applied to the far less powerful lieutenant governor is an open question.

Rep. Bill Chumley

Rep. Chumley is facing allegations that he misused state resources when he authorized the use of a state plane in March to bring George Mason University economics professor Walter Williams from the Washington DC area to testify at a House Judiciary subcommittee hearing on a bill sponsored by Chumley. It should be noted that Rep. Chumley has taken issue with an advisory opinion issued on May 23 by the House Ethics Committee stating that the “use of the state airplane to transport witnesses for testimony before legislative subcommittees may violate section 8-13-765 of the State Ethics Act, which prohibits the use of government resources for political purposes.” The law cited doesn’t include the phrase “political purposes.” Instead, it reads far more narrowly: “No person may use government personnel, equipment, materials, or an office building in an election campaign.” Rep. Chumley has objected to the broad interpretation, saying in his response to the complaint that the meeting in questions was “unequivocally not an ‘election campaign’ or a campaign event, nor was it in any way associated with any election campaign or campaign event.”

A review of state plane use by The Nerve raises the question: Are there different rules for certain lawmakers? For instance, what makes it permissible for certain lawmakers to use the state plane to fly their spouse to Washington for a visit with the Vice President? Why is it permissible for one lawmaker and his spokesman to use the state plane to take a trip for an unspecified speaking event and meeting with local government officials?

Are there others?

The answer is yes. This year, for instance, less than three weeks after The Nerve submitted a formal open-records request for information about state payments to Florence Concrete Products Inc., Senator Leatherman – for the first time – listed his stock ownership on his required state income-disclosure form filed with the S.C. State Ethics Commission. This is significant because state law prohibits lawmakers from “entering into contracts with state agencies involving businesses in which the lawmaker or an individual with whom he is associated has an ownership interest of greater than 5 percent in that business if the legislator voted on that year’s section of the state budget bill dealing with that agency.” As chairman of the budget-writing Senate Finance Committee, Leatherman has a great deal of influence over DOT’s annual budget. The change in heart regarding the senator’s disclosure of his stock ownership appears to have sufficed.

Further, over the course of five years Senator Leatherman spent in excess of $78,000 on Christmas ornaments for “constituent gifts.” This amount far outweighs Senator Ford’s expenditures of less than $200 on “gag gifts” from an adult store for volunteers with some of his charity work.

A review of internal House budget documents by The Nerve showed that Rep. Gilda Cobb-Hunter (member of the House Ways and Means Committee) requested a proviso for $200,000 that would go directly to the non-profit for which she works. State law prohibits state lawmakers or other public officials from knowingly using their “official office, membership, or employment to obtain an economic interest for himself, a family member, an individual with whom he is associated, or a business with which he is associated.” The earmark made it into the final budget passed by the General Assembly where it was vetoed by the governor. The House, at the request of Rep. Cobb-Hunter, sustained the veto. No further action on this matter has been publicly reported.

Need for Reform

The need for substantial reform is plain. First, legislative ethics committees should have only the authority to handle internal matters, not the violation of state law. Clearly these committees have not applied the law equally in the past and are failing to do so presently. Further, in the case of the Speaker of the House, reports strongly suggest that there was a clear conflict in the interpretation of state law between an attorney working with the House Ethics Committee and the general counsel for the State Ethics Commission (who oversees all ethics matters for all state officials other than the legislature). In this instance, the general counsel said state law required more detail for reimbursement than the attorney for the ethics committee. However, the State Ethics Commission has no jurisdiction over the legislature. In the instance of Rep. Chumley, records show that he also requested an opinion from the House Ethics Committee as to whether or not using the state aircraft to fly in an expert witness for a House Judiciary subcommittee meeting would violate the Ethics Act, and was told that it would not. That very same House Ethics Committee has since found probable cause that Rep. Chumley violated state law by using the state aircraft for this matter. Both of these cases highlight the clear need for a more accountable system – a system such as that which all other state officials are subject.

Second, lawmakers should disclose their private income so that their constituents can know who has influence over their lawmaker. Public officials are required to disclose any public income – their government salaries, any money made from contracts with state agencies, etc. – they’re not required to disclose private income. Indeed, South Carolina is the only state in the nation where state lawmakers are not required to disclose any private income.

Finally, the use of campaign funds should not be used for purposes that have nothing to do with campaigns. Any matter that can be justified as state business should be paid for by the state. Ultimately this would force the oversight entity to develop a more uniform definition of state business, which in turn would prevent public officials from using state dollars for non-state purposes – and, more importantly, discourage those officials from using their authority as lawmakers to solicit campaign dollars and use them for non-official purposes.