Legislature Still Polices Itself in Ethics Cases

Republican Lt. Gov. Ken Ard, who is the subject of a criminal probe into allegations that he used campaign money illegally, probably would be breathing a lot easier if he were a member of the S.C. House instead of a state constitutional officer.

There are a few explanations for this.

For one thing, if Ard were a House member there’s a good chance that he would not be facing such an inquiry.

Furthermore, as a state representative Ard could not have been hit with what has been reported as the second largest ethics fine in South Carolina history.

Thirdly, it’s also quite possible that South Carolina voters and taxpayers would know a lot less, if anything, about Ard’s case if he were serving in the House.

These scenarios stem from the fact that when it comes to enforcing ethics laws and rules among Palmetto State politicians, there’s one system for lawmakers – and another system for everybody else.

The S.C. Ethics Commission polices the state’s nine constitutional officers, certain high-ranking appointed state employees and all locally elected officials in the state, such as city and county council members.

The commission consists of an administrative staff, which investigates allegations of wrongdoing, and a nine-member board that acts as a jury in its cases.

By contrast, legislators operate under a self-enforcement system through separate House and Senate Ethics committees.

Defenders of the system, perhaps most notably Senate President Pro Tempore Glenn McConnell, R-Charleston, argue that it is proper under the separation-of-powers doctrine outlined in the S.C. Constitution.

The defenders point to Article 3, Section 12 of the constitution, which says in part that each chamber of the Legislature shall “determine its rules of procedure” and “punish its members for disorderly behavior.”

But such language notwithstanding, critics contend that the process of legislative self-enforcement in ethics matters is rife with secrecy, leniency and other weaknesses that make a mockery of transparency and accountability.

To the critics, the situation is even more pronounced for House members, as the Senate has taken two big steps to reform its ethics standards but no such change has come to the House.

Republican Sen. Mike Rose of Dorchester, who is fighting to reform the system of legislative self-enforcement, describes the fox-guarding-the-henhouse nature of it as “outrageous.”

But, like a lone voice in the wilderness, Rose’s effort has gone nowhere. “The only thing that’s going to get it going is public demand,” he says.

Along those lines, oftentimes a crisis leads to change – hence the Ard analogy.

Earlier this month, the Ethics Commission fined Ard $48,400 after he admitted to repeatedly using campaign funds for personal expenditures in violation of state law. The commission also ordered Ard to pay $12,500 in legal costs for his case and reimburse his campaign account a little more than $12,100.

It was a total penalty of about $73,000, and widely reported as the second largest ethics fine in state history. The commission had charged Ard with more than 100 violations.

Former Gov. Mark Sanford, also a Republican, received the largest ethics fine on record in South Carolina. It totaled nearly $75,000, as part of an approximately $140,000 settlement Sanford paid last year to resolve 37 ethics charges related to his travel on state and commercial aircraft; and, like Ard, his use of certain campaign funds.

Last week, meanwhile, Republican S.C. Attorney General Alan Wilson announced that he has referred Ard’s case to the State Grand Jury to consider whether a criminal prosecution of the lieutenant governor is warranted.

Said Ard in a two-sentence statement he released the same day, “Earlier today I requested that the attorney general refer my case for a full and complete investigation so that all of the facts in this matter can be determined. I look forward to continuing to work with the attorney general’s office.”

The Columbia alternative newsweekly Free Times first broke the Ard story in early February.

The case has sparked everything from calls for Ard to resign to a push to amend the state constitution to allow South Carolina voters to fire, or recall, a wayward elected official during his or her term via the ballot box.

The Ard case has not, however, transferred energy into the fledgling move to open up the legislative ethics enforcement process and put some teeth into it.

For the most part, the same was true of the Sanford case, even though both examples point up the glaring discrepancies in ethics enforcement among legislators and all other state and local elected officials in South Carolina.

“I see zero justification – none – for senators and House members treating themselves differently,” Rose says. “But if the public doesn’t care the legislators aren’t going to care. It’s that simple. I don’t know if the Ken Ard thing would have anything to do with it.”

Rose, who dismisses the constitutional argument as a matter of interpretation, is sponsoring two measures designed to tear down the wall of legislative self-enforcement.

One is a proposed constitutional amendment, S. 324. It would give the General Assembly authority to delegate jurisdiction over legislative ethics to an outside entity.

Rose’s other proposal is a bill intended to work hand in hand with a constitutional amendment.

The bill, S. 306, would reduce and change the appointments of Ethics Commission board members. Instead of the governor naming all nine of them, the governor would appoint four while the Senate president pro tempore and the House speaker each would appoint two, for a total of eight.

Rose prefiled both measures in December and they were introduced during the first week of this year’s regular legislative session in January.

And that was the last anyone heard from them.

Both proposals were sent to the Senate Judiciary Committee. The chairman of that committee is – wait for it – McConnell.

Despite the dearth of action on Rose’s proposals, however, a few cracks in the wall of legislative self-enforcement have started to form.

Also early in the session, Sen. Wes Hayes, R-York and chairman of the Senate Ethics Committee, succeeded in getting a rules change through the Senate.

Crafted in resolution S. 326, the revision opens Senate Ethics Committee proceedings to public disclosure upon a finding of probable cause that a violation has occurred.

Previously such cases could be, and almost always were, kept secret.

The change brings the Senate into conformity with an amendment to state law regarding Ethics Commission cases.

Prior to the law being changed, matters before the commission were not revealed until they were resolved or the subject of a case waived his or her right to confidentiality.

Rep. Jim Harrison, R-Richland, sponsored the amendment to the law.

It too passed at the outset of the session.

Shortly after that happened and Hayes’ rules change won approval in the Senate, Harrison introduced a proposal to modify House rules in much the same way.

That Harrison measure, H. 3445, picked up several sponsors en route to the House Rules Committee. But the committee never took it up, according to the Legislature’s website.

Efforts to reach Harrison on Monday and Tuesday were unsuccessful.

In one more step on the road to reform, Hayes’ rules change also gave the Senate Ethics Committee the power to fine members of the chamber up to $2,000 per ethics violation, excluding minor infractions.

Before that, the committee could fine senators only for failing to file requisite paperwork.

Asked whether he supports the idea of ending legislative self-enforcement, Hayes says he thinks it is worthy of consideration.

However, Hayes adds, “That would have to go through the Judiciary Committee, and I know that Sen. McConnell is a very strong believer in separation of powers.”

Reach Ward at (803) 254-4411 or eric@thenerve.org.

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