Gov. Mark Sanford must convince the State Ethics Commission that a report detailing his use of state and private planes and campaign money should be kept private, the S.C. Supreme Court ruled Thursday.
The court ruled that Sanford waived confidentiality in the yet-to-be completed investigation but that it is up to the Ethics Commission to decide what is made public.
"The only reasonable interpretation ... is that it was an intentional relinquishment of the right to confidentiality, and therefore a valid - and complete - waiver," the court wrote of Sanford's Aug. 28 letter to the Ethics Commission in which he said he was waiving confidentiality.
That letter also was released to the public by Sanford, who touted his action as going above and beyond what was required because of his belief in open government.
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Sanford's attorney had argued the letter only was intended to allow the Ethics Commission to disclose that it was investigating allegations against Sanford and the scope of that inquiry.
"We hasten to add that the governor's waiver does not reach the commission's work product," meaning the notes and records used to produce the Ethics Commission report, the court said.
However, the court added, "Governor Sanford's waiver ... reaches all documentation to which he is entitled," meaning anything given to Sanford also should go to the public, including the investigative report.
The Ethics Commission investigation was prompted by media reports about Sanford's use of state resources and questions about his use of campaign money. Both were questioned after the two-term, Republican took a clandestine five-day trip to Argentina in June. Sanford later admitted to having an extramarital affair.
Sanford had asked the Supreme Court to block the release of the Ethics Commission's pending investigative report, which could allege ethical or criminal violations. The S.C. House of Representatives also asked the court to require the Ethics Commission to turn over the report to lawmakers, who could move to impeach Sanford.
The court denied both requests, leaving the question unanswered as to whether lawmakers and the public can see the report. However, the court said lawmakers could subpoena the report if they launch impeachment proceedings.
State Ethics Commission executive director Herbert Hayden said he expects the nine-member panel to vote at a Nov. 18 meeting on Sanford's request to keep the report secret. Sanford could appeal that decision to the Court of Appeals.
"That motion is still on the table," Hayden said, referring to Sanford's secrecy request. "I don't think the report becomes public until after those administrative remedies are exhausted."
If the commission votes against Sanford, Hayden said, the Supreme Court decision makes it clear the investigative report is a public document.
Sanford's attorneys praised the court for rejecting the House's request for the report. The court decision, attorney Butch Bowers said in a statement, protects the confidentiality of the investigative process.
"We've fully cooperated with the commission thus far, and we will continue to do so throughout this process," Bowers said in a statement. "To be clear, Governor Sanford supports the public release of the full and complete Ethics report."
Sanford long has said he favored more open government but is in the position of arguing against the release of a document that he may have made public by his Aug. 28 waiver letter, according to the Supreme Court decision.
Sanford appointed all nine members of the State Ethics Commission with the approval of the Senate. Once appointed, the members may not be removed.
According to campaign filings, three commissioners donated to Sanford's campaign before they were appointed.
Sanford's attorneys previously have argued state law only allows the commission to release an investigative report to a prosecutorial body. The House has argued the state Constitution makes it such a body because only the House can begin impeachment hearings.
Thursday's Supreme Court ruling did not address that issue.
Though the court decision rejected the House's request to receive a copy of the report, House attorneys view the decision as a victory, said Greg Foster, spokesman for House Speaker Bobby Harrell, R-Charleston.
The initial reaction, Foster said, is "this will become a public report."
One lawmaker already has drafted an impeachment resolution, and others could follow when the House permits pre-filing of bills for January's session later this month. House leaders have been waiting on an Ethics Commission decision before acting on calls for Sanford's impeachment.
Some lawmakers say Sanford abandoned his post in June and impeachment will not depend on the Ethics Commission's investigation.