If Gov. Nikki Haley uses her taxpayer-funded security detail during campaign events, her campaign won’t have to reimburse state law enforcement agencies for the officers’ regular pay, according to an agreement signed by the governor earlier this month.
“Wages and salaries are not reimbursable because they are not an additional cost to the State,” so reads the Oct. 4 agreement signed by Haley, State Law Enforcement Division (SLED) Chief Mark Keel and Herb Hayden, executive director of the State Ethics Commission.
That arrangement, however, appears to contradict a 21-year-old state law (Section 8-13-765 of the S.C. Code of Laws) that says, “No person may use government personnel, equipment, materials, or an office building in an election campaign.”
The agreement – a copy of which SLED provided to The Nerve last week – also says Haley’s campaign doesn’t have to reimburse law enforcement agencies for advance security work on campaign events.
The agreement was drafted after a recent controversial decision by Hayden, who publicly said Haley’s campaign didn’t have to reimburse the state for her security detail costs during a June trip to North Carolina, even though she received thousands of dollars in campaign contributions when the event, which was hosted by a foundation supporting the agenda of GOP N.C. Gov. Pat McCrory, was held.
Online campaign records with the State Ethics Commission show that Haley received a collective $34,500 from 16 North Carolina donors when the June 27-28 event at the Grandover Resort in Greensboro, N.C., was held.
The Nerve’s review of the “memorandum of agreement (MOA)” signed by Haley, Hayden and Keel likely would allow Haley to attend similar events without having to reimburse the state for security costs.
“The receipt of campaign contributions at an event or comments made by the governor in response to questions about a candidate’s campaign at an event are not instances, that, in and of themselves, re-classify a non-campaign event as campaign-related,” according to the agreement.
Not everyone, however, is convinced by that reasoning.
“I think there are serious questions whether the provisions (of the MOA) are compatible with (state law),” said John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, who reviewed the agreement last week at The Nerve’s request.
He cited the state law (Section 8-13-765) prohibiting the use of government personnel and equipment for campaign purposes, and another law (8-13-1346) banning the use of “public funds, property, or time to influence the outcome of an election.” Both laws are cited in the MOA.
Crangle said his main question is whether Haley, Hayden and Keel have the legal authority to enter into such an agreement.
The signed document says that “until such time as legislation is enacted to provide clear legal guidance, the governor will continue the practice of previous governors, but, for the first time, with clearly-established written procedures and reimbursement policies set forth in this MOA jointly developed and approved by SLED, the Office of the Governor, and the State Ethics Commission.”
Haley spokesman Doug Mayer; Swati Patel, Haley’s chief lawyer; and Hayden didn’t respond to written questions Friday from The Nerve.
SLED spokeswoman Kathryn Richardson declined Friday to discuss specifics about the makeup of the governor’s security detail. But she provided The Nerve with records showing that Haley’s campaign on July 10, 2012, reimbursed SLED a total of $4,633.35 for security expenses for “various political events that SLED agents were assigned” to in fiscal 2011-12, and $3,105.20 on July 17 for security expenses in fiscal 2013, which ended June 30.
The MOA says the governor is required to have a security detail “at all times and in all places.” But a state budget proviso (117.76) authorizing the detail doesn’t specifically say that; instead, it says more generally that SLED and the state departments of Public Safety and Natural Resources “shall provide a security detail to the Governor in a manner agreed to” by those agencies and the Governor’s Office.
The proviso, which has to be renewed annually, doesn’t address campaign-related events or reimbursements from a governor’s campaign account. Rather, it says reimbursement of security costs “shall be made in an amount agreed to” by SLED, DPS, DNR and the Governor’s Office, “from funds appropriated to the Office of the Governor for this purpose.”
The MOA says campaign-related events include such things as “fundraisers hosted for the governor, campaign rallies planned by the governor’s campaign, and any other event paid for and planned by the governor’s campaign.” It also includes campaign events “hosted for other candidates running for office that are attended by the governor.”
Reimbursable expenses are defined as “an additional costs to the State incurred by the Security Detail when traveling with the governor to a campaign-related event,” including travel, hotel and meal expenses.
It doesn’t include costs of advance security work for the governor’s campaign events because, according to the MOA, such work is a “protective service done as part of the normal duty of the Security Detail and the governor does not accompany the Security Detail during advance work.”
It also doesn’t include wages and salaries of the assigned officers for those events, though any overtime worked by the officers would have to be reimbursed by the governor’s campaign.
Upon receiving an invoice from SLED, DPS or DNR, the governor’s campaign must reimburse the agency within 30 calendar days of the bill, under the agreement.
The MOA says it can be amended “from time to time by mutual written agreement of the Parties,” and that it “becomes void when legislation is enacted superseding the terms of this agreement.”
In a related matter, Crangle told The Nerve that he plans to ask a state lawmaker, whom he declined to identify, to request a formal opinion from the S.C. Attorney General’s Office on whether Haley’s campaign is required under state law to reimburse the state for her security detail costs on the June trip to North Carolina.
Cathy Hazelwood, the Ethics Commission’s deputy director and chief lawyer, drafted a letter calling for Haley’s campaign to reimburse the state. But Hayden reversed Hazelwood’s decision – an unusual move – and both the paper and electronic copies of her letter were destroyed, Hayden said, as The Nerve reported earlier this month.
Because the June event was a fundraiser for a nonprofit organization and not for a candidate, Haley’s campaign didn’t have to reimburse the state for her security detail costs under state law, Hayden told The Nerve.
Crangle in a Sept. 30 letter asked that the Ethics Commission request an attorney general’s opinion on the North Carolina trip. But Hayden informed Crangle in an Oct. 15 letter, a copy of which Crangle provided to The Nerve, that the commission – whose members are appointed by the governor – had rejected his request.
The nine-member commission currently has four vacancies, two of which occurred after The Nerve reported in July that the appointment of two Haley candidates violated state law because they had not been approved by the S.C. House.
“Notwithstanding the fact that issuing advisory opinions on the State Ethics Act is a statutory duty of the Commission, the recent Memorandum of Agreement with the Governor’s office and SLED addresses the issues brought out regarding the Governor’s North Carolina trip,” Hayden said in the Oct. 15 letter. “(T)herefore, the State Ethics Commission considers the matter closed, and absent the filing of a complaint, will take no further action.”
Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.