COLUMBIA — Forty-four states require legislators to disclose who they work for. Many also require some disclosure about how much those legislators are paid by their employers.
Not South Carolina.
Palmetto State politicians only must disclose money earned from government agencies and from contracts between their employers and government agencies. There is no requirement to disclose the private companies that legislators work for, some of which may stand to gain financially by laws passed by the General Assembly.
Recent events have exposed many weaknesses in South Carolina’s ethics and open-records laws, weaknesses that leave taxpayers in the dark whey they try to watch-dog what legislators are doing and hold them accountable for their actions.
Case in point:
A recently completed ethics investigation into Gov. Nikki Haley that cleared the Lexington Republican of wrongdoing, reaffirming state law that the former state representative was not required to tell anyone that, as an S.C. House member, she had a consulting contract with a Midlands engineering firm that did millions of dollars worth of work for the state.
And that was not an isolated case.
S.C. ethics regulations are so weak – so watered down and riddled with loopholes – that the state was given an “F” grade this year and a ranking of 45th among the 50 states from the State Integrity Investigation, a project of the Center for Public Integrity, Global Integrity and Public Radio International.
Critics says the failing grade was well-deserved.
“We have no idea who pays these guys [legislators],” said Ashley Landess, director of the S.C. Policy Council, a conservative Columbia think tank that espouses limited government and libertarian-leaning politics. “Therefore, we have no idea whether there are conflicts of interest.”
Landess and other advocates of open government say the state’s weak ethics laws limit accountability and transparency.
“The recipe for corruption is concentration of power and secrecy. And we have both in this state to a high degree,” said Landess. Her group just released an eight-point plan to increase transparency, including requiring full income disclosure from legislators.
Most states are working to become more transparent, said Peggy Kerns, director of the Center for Ethics in Government at the Washington, D.C.,-based National Conference of State Legislatures.
“Nationally and internationally, we’re seeing changes that increase transparency, which means more disclosure” from legislators and lobbyists, Kerns said.
A new ethical day for S.C.?
South Carolina could follow suit.
State Sen. Wes Hayes, R-York, chairman of the Senate Ethics Committee, and the House Ethics Commission, the S.C. Ethics Commission and state Attorney General Alan Wilson began talks in July on overhauling the state’s ethics laws.
The group hopes to prefile legislation in December, prior to the January start of the Legislature’s new session.
State ethics laws were last overhauled in 1991 following Operation Lost Trust, an FBI sting that snared more than two dozen S.C. lawmakers, lobbyists and others in one of the largest legislative public-corruption scandals in U.S. history.
The laws hammered out in that scandal’s aftermath were a national model at the time, Hayes recalled. He was chairman of the House Ethics Committee then and served on a conference committee that hashed out the post-Lost Trust ethics laws.
“We made some big changes,” Hayes said. Those included requiring lobbyists and groups that did business at the Statehouse to publicly disclose some information and requiring lawmakers to disclose income that they received from the state.
“But we didn’t take the final step of [requiring lawmakers to disclose] all sources of income,” Hayes said. “It was just one of those things that we were hammering out a compromise and taking it one step at a time.
“Now, I think we’re ready to take that final step.”
It could be a hard fight.
In the years since Lost Trust, including the legislative session that just ended, many legislators and public officials have pushed for increasing government accountability and opening up public access to government information.
But changes never happened.
Instead, politicians, including most recently Haley, talked about the need for change.
“It makes good campaign rhetoric, and that’s why you get so much talk about transparency,” said John Crangle, a lobbyist and director of the S.C. chapter of Common Cause, a government watchdog group. “But a lot of public officials like that what they’re doing is hidden because they’re making money off of those undisclosed transactions.”
A series of recent ethics scandals – from Haley’s undisclosed consulting work to legislators’ sweetheart pensions to a court decision that cleared the way for unlimited donations to the state’s political parties to confusion over paperwork that led to more than 250 candidates being thrown off the ballot this year – is setting the stage for big changes, Hayes said.
“The silver lining is it is creating an atmosphere where people are realizing the importance of changing our ethics laws,” he said.
‘A very precarious position’
Legislators’ income isn’t the only issue.
Others range from cronyism and nepotism to government secrecy.
State law, for example, has little to say about lawmakers and other elected officials who help family and friends get taxpayer-paid jobs.
State law only bars a public official from hiring a family member for a position that the public official supervises or manages. That leaves lots of room for jobs once- or twice-removed from the person in power.
This summer, for example, Haley’s 14-year-old daughter landed a part-time job with a state agency, whose director is named by and reports to Haley. Last year, the wife of the governor’s chief of staff also landed a job with that same agency.
This year, Senate President Pro Tem John Courson, R-Richland, also defended the 2007 hiring of his sister-in-law by the Senate Education Committee, which Courson chairs.
Herb Hayden, director of the S.C. Ethics Commission, said it is time to more specifically define cronyism and what is allowed – a topic that will be discussed by Hayes and the others as they prepare new legislation to strengthen the state’s ethics laws. Courson also has expressed interest in updating the state’s ethics laws, Hayden said.
“I don’t know what the answer is right now,” Hayden said. “But, at the very least, those kinds of situations create appearance issues.”
As an example of a conflict, Hayden suggested the scenario of a supervisor at a state agency who must decide whether to hire the child of the agency’s director.
“How does a supervisor, getting ready to hire someone, say, ‘No, we’re not going to hire the son or daughter of the agency head’ or ‘Yes, we are’? And how should the supervisor discipline that employee if they don’t do a good job? What if they have to fire them?” Hayden asked.
“There are lots of issues here whether the agency head is involved in the [hiring] decision or not. It puts that supervisor in a very precarious position.”
‘Law is very limited, very weak’
The public also can have a difficult time getting access to documents, correspondence and other public records from state agencies and public officials.
That difficulty illustrates the need to update the state’s Freedom of Information Act, open-government advocates say.
They cite several problems with the law. State agencies can deny access to records; there is no appeals process if access is denied; and state agencies can charge excessive fees for gathering information, making it too expensive for the public to get information.
Also, lawmakers are exempt from following the law.
“There is no good reason for them to be exempt,” said the Policy Council’s Landess.
But a majority of legislators do not want to make it easier for the public to find out what they and government are doing. Instead of improving the open-records law, this past legislative session featured political fireworks about it.
A proposed bill – offered by state Rep. Bill Taylor, R-Aiken, and backed by the S.C. Press Association, of which The Sun News is a member – would have shortened the time period that state agencies get to respond to FOIA requests. It also would have prohibited agencies from charging fees for staff time spent to comply with FOIA requests and set limits on the amount that those agencies can charge for copying records.
Haley’s office worked to get an amendment added onto the bill. That amendment would have removed the legislative exemption from FOIA, meaning lawmakers would have to share their correspondence and documents with the public, something then-state Rep. Haley declined to do when she was running for governor and was accused of having extramarital affairs.
But some lawmakers and state agencies objected to the bill. Their opposition, along with Senate jockeying, killed the effort.
“I think [removing the legislative exemption] gives some people around here heartburn and indigestion,” Rep. Taylor said at the time, referring to legislators who do not want to share their communications with the public.
That means efforts to update the open-records law will have to start anew in the next legislative session, and Hayes’ group – which is spearheading the ethics reform effort – is not considering changes to the FOIA laws. The group does not consider the open-records law to be part of its ethics reform agenda.
Open-records advocates are hopeful the public will realize the shortcomings of the current law and demand changes.
Said Crangle: “Until they put some sanctions in there for noncompliance, in terms of fines or penalties for agencies that don’t comply promptly, and get limits on what they can charge for documentation, the FOIA law is very limited, very weak.”