THE ETHICS ACT IS OBSOLETE.
HERE’S WHAT ONE LONGTIME OBSERVER
SAYS WE SHOULD DO ABOUT IT.
The 2015 session of the General Assembly faces a rare opportunity to pass new ethics legislation to address all of the major problems revealed since the last ethics law was passed in 1991. Common Cause/South Carolina was very much a part of the effort to write and pass the 1991 bill.
Since the 1991 Ethics Act took effect a generation ago, it has become apparent that the law is obsolete. It has also become evident that the best portions of the law have not been enforced. Both the substance and the enforcement of our ethics laws much be improved.
The recent indictment and guilty plea of former Speaker of the House Bobby Harrell raises the question of whether Harrell converted campaign funds to personal use in violation of the law. Harrell’s use of campaign funds raised questions as early as 2006, when I wrote an op-ed for the Post and Courier about his leadership political action committee, or leadership PAC, which was collecting hundreds of thousands of dollars from special interests and which was being run as a political slush fund funneling money to Harrell and his cronies.
Harrell’s actions raised serious questions about whether he was violating the 1991 Ethics Act. Yet it wasn’t until Ashley Landess of the South Carolina Policy Council, Talbert Black of the tea party movement, Brett Bursey of the S.C. Progressive Network, and Common Cause/South Carolina held a news conference on October 12, 2012, that a public demand for an investigation of Harrell was directed to Attorney General Alan Wilson.
For years, the House and Senate were on public notice from Harrell’s disclosure forms that his use of political money was out of control, but not one of the 170 members of the General Assembly said anything in public or took any official actions to try to stop Harrell’s abusive conduct. The House Ethics Committee ran through two chairmen, including Roland Smith and Kenny Bingham, and went through a reorganization for the 2013 session. But neither the old or new ethics committees did anything.
It was left to Landess to finally take action and force the issue. On February 14, 2013, Landess went to see Attorney General Wilson and convinced him to order a SLED probe of Harrell. That probe lasted nearly a year. Wilson then convened the state grand jury, but ran into problems with the presiding judge, Casey Manning, and the South Carolina Supreme Court, which seemed to be collaborating to stop the state grand jury probe. Wilson then turned the Harrell case over to First Circuit Solicitor David Pascoe, who took the matter to Richland County grand jury and got a nine-count indictment against Harrell related to his use of campaign funds.
The Harrell case makes it clear that the best ethics laws are of little value if they are not enforced, or only enforced after a long delay during which more criminal conduct mounts up. The House Ethics Committee has been shown again to be neutralized by conflicts of interest and cowardice, if not partisanship, racism and selective enforcement. The committee was obviously afraid of Harrell because he had aggregated so many powers, including the power to appoint the chairmen and members of all but two committees, the powers to make appointments to some 80 boards and commissions, and the power to effectively dominate the flow of legislation and the budget process.
It is very clear that any serious reforms of ethics law in South Carolina must include not only new substantive rules of conduct banning certain practices, but must also legislate a new enforcement system to stop violations as soon as possible. This new enforcement system should include more than the old reliance on citizen complaints to trigger the investigative and enforcement process.
Among the proposals advanced by Common Cause/South Carolina are the following: (1) All public officials in South Carolina at every level should take an oath on taking office that they will not only obey the law themselves but also will report any person in office or public employment who is violating the law in his or her official capacity; (2) The State Ethics and legislative ethics committees (if they continue to exist) will have authority and responsibility to affirmatively monitor the conduct of the persons under their jurisdiction and take enforcement action on sufficient evidence of violations; (3) Citizens will be empowered to file complaints with the Ethics Commission and legislative ethics committees in cases where citizens believe the violations are unintentional and/or minor; and (4) Citizens will have the power to file criminal complaints with the Attorney General or the Solicitor of the county where the violations took place, or the accused is a resident if the complainant believes the violations to be intentional and serious.
In addition, the enforcement process will be enhanced by the adoption of a new whistleblower law in place of the existing one. The new law would protect public employees from retaliation when they expose and report illegal behavior by public officials and public employees, and reward them with part of the recovery if public funds are returned to state or local governments by a result of the whistleblower’s actions. Public officials and employees would be entitled to fair compensation and legal expenses in cases of proven retaliation for legitimate whistleblowing actions.
Further, the Inspector General of South Carolina should be directed to conduct random site visits, audits and inspections of state and local government agencies, including state, city and county entities such as police departments, sheriffs’ departments, treasuries, school districts and other such agencies prone to embezzlements and misuses of public funds.
Without a much stronger enforcement system in South Carolina, any new ethics rules and reforms will be of little value. The Harrell case clearly demonstrates that there is nothing wrong with the laws that Harrell is accused of violating, but that the laws have not been firmly and systematically enforced for years, perhaps since enactment. The people of South Carolina should not have to wait until a brave private citizen has finally had enough of crooked politicians and demands action by the political class. Public officials should be mandated to enforce the laws regardless if the suspect is Bobby Harrell, Sen. Robert Ford, Lt. Gov. Ken Ard or Gov. Nikki Haley. Public officials should know that if they violate the law, the law enforcement system will be watching and ready to take action.
John Crangle is executive director of Common Cause South Carolina. He recently wrote about Operation Lost Trust for The Nerve here.