Lawmakers, Corruption, and Accountability

SC legislative ethics process

The process of investigating and prosecuting corruption in the legislature is confusing and complicated – at best. At worst, it is specifically designed to shield lawmakers from legal scrutiny and consequences for unethical behavior.

Last year the General Assembly passed a law purporting to end lawmakers’ power to police their own ethics violations. It didn’t, but it did reshuffle the pieces slightly. Here is an overview of how legislative corruption is investigated and prosecuted in South Carolina.

 

The Ethics Commission

The ethics commission is the “gatekeeper” for ethics complaints. While other agencies and entities may receive ethics complaints, this is the entity assigned by law to sort through corruption charges. The commission consists of eight members, four of which are appointed by the governor and four by the General Assembly. The General Assembly also confirms the entire slate of commissioners.

When the ethics commission receives an ethics complaint regarding a lawmaker, staff investigators perform an initial review to determine if “facts sufficient” warrant a more thorough investigation. If the complaint passes that initial review, the commission launches an investigation. At this point, the commission also notifies the House or Senate legislative ethics committee (depending on which branch the lawmaker under investigation belongs to) of the investigation.

The ethics commission considers the results of each investigation in a closed-door meeting, voting to either a) dismiss the complaint or b) issue a recommendation of probable cause, which requires six votes. However, the commission cannot penalize lawmakers. If they believe criminal intent is involved, the recommendation is forwarded to law enforcement – usually the Attorney General (AG). Otherwise, the commission forwards the complaint and recommendation of probable cause to the appropriate legislative ethics committee, which addresses the matter administratively.

Either way, the complaint, the response of the accused, and the recommendation of probable cause are all public at this point in the process.

Determining whether an ethics violation is criminal or administrative depends on two major factors: the significance of the alleged violation, and more importantly, the existence of evidence of criminal intent – that a person knowingly broke a clear rule of law for an improper purpose or personal gain.

This is a very high bar to clear. The Ethics Act (the section of state code dealing with ethics and corruption) is an odd hybrid between civil and criminal offenses and many violations could be treated as either. However, the maximum civil penalty for most offenses is a fine of $2,000, and the maximum criminal penalty for most offenses is a $5,000 fine or one year in prison. Moreover, indicted lawmakers aren’t suspended from office except in very specific circumstances – which do not include the majority of ethics violations. Criminal intent is difficult to prove, and when the law itself does not treat public corruption as a serious offense, most complaints will naturally fall under the administrative rather than the criminal process, both of which are detailed below.

 

The Administrative Process for Ethics Violations

The House/Senate Ethics Committees

SC Legislative ethics accountability process

Legislative ethics accountability process – click to enlarge

The General Assembly claims that the constitution requires them to judge and punish their own members for ethical infractions based on Article 3, Section 12 of the State Constitution, which states that “each house shall choose its own officers, determine its rules of procedure, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same cause.”

Of course, this is clearly referring to lawmakers’ behavior during their legislative proceedings. The idea that coworkers should police each other’s legal violations does not hold up to legal scrutiny.

However, this faulty interpretation of the constitution is why legislators administratively police their own ethics violations. When a House or Senate ethics committee receives a recommendation of probable cause regarding a lawmaker from the ethics commission, it can do one of the following:

  1. Dismiss the complaint in a public notice.
  2. Request the ethics commission to investigate further. The publication of the complaint and the commission’s finding are delayed until this second report is completed.
  3. Determine that the violation was technical and issue appropriate penalties.
  4. Concur with the probable cause recommendation and either
    1. Issue an advisory opinion and require the defendant’s compliance, or
    2. Hold a formal public hearing.

If the committee holds a public hearing, the ethics commission’s investigator would present the evidence in the role of “prosecutor” and the accused lawmaker would be entitled to all due process rights such as representation, subpoenaing witnesses, etc. At the conclusion of this hearing the committee could either dismiss the complaint or issue a finding of guilt, along with penalties ranging from reprimands to fines and expulsion, depending on the offense.

The lawmaker can appeal the committee’s decision to the entire General Assembly, which would then hold a session to consider the appeal. This could occur in either open or executive session.

 

The Criminal Process

The Attorney General

If the ethics commission determines that criminality may be involved in a particular situation, they forward the complaint to law enforcement – usually the Attorney General (AG). The AG’s office can either pursue investigation of a complaint (delegating the actual investigation to the State Law Enforcement Division, or SLED), or return the complaint to the ethics commission to be processed administratively.

The AG does not need to wait for a referral from the ethics commission to open a corruption investigation, but would be unlikely to do so without information on the offense’s criminality that would warrant a state law enforcement investigation. Typically, it is the ethics commission’s role to initially identify potential criminality.

If the Attorney General is unable to personally oversee an investigation, he may appoint a special prosecutor to represent the AG’s office, as in the current legislative corruption probe led by Special Prosecutor David Pascoe. The state Supreme Court has ruled that Pascoe, as the authorized representative of the Attorney General, has the full authority of the AG’s office for that case, including the power to initiate a state grand jury investigation.

The Grand Jury

The state grand jury is a prosecutorial body with statewide jurisdiction. It was originally established to oversee public corruption cases although its jurisdiction has been broadened to include other types of crime. The state grand jury can both investigate and prosecute and is usually the next step in a corruption investigation. If the AG and SLED decide to pursue grand jury investigation and indictment, the AG notifies the chief administrative judge for general sessions in the appropriate judicial circuit that he is initiating a grand jury investigation, and the judge empanels the grand jury.

In the corruption case of former House Speaker Bobby Harrell, the AG recused himself and appointed 1st Circuit Solicitor David Pascoe to take the case, and it was a county grand jury that ended up indicting Harrell.

After a grand jury has issued an indictment, the case goes to trial.

The Federal Justice Department

The Justice Department does not oversee state law enforcement agencies, but federal law does give them authority to pursue public corruption cases on the state level. Usually, state and federal law enforcement agencies work together to determine the appropriate entity to investigate and prosecute different cases. The FBI and US Attorney advise and assist the state, and in the past have worked jointly with state law enforcement.

In 1990’s Operation Lost Trust, the FBI had found evidence of deep-rooted corruption in the Statehouse and contacted US Attorney Bart Daniel to determine what charges he wished to pursue. Daniel opted for a comprehensive undercover plan to expose all the dealings of the legislature and lobbyists, and the FBI produced evidence that resulted in twenty-seven convictions or guilty pleas.

More recently, the US Attorney shadowed the corruption case of former House Speaker Bobby Harrell, and according to AG Alan Wilson, “made it abundantly clear that if the appropriate actions didn’t occur and people didn’t follow the law, that the feds were going to come in and handle that case in an appropriate manner.” Wilson credits the US Attorney’s influence with the resulting guilty plea.

 

Conclusion

This entire process is extremely problematic. According to the ethics commission, most Ethics Act complaints and offenses are administrative in nature (not to be confused with technical violations – an entirely different class of offense). This determination is based on the specific facts of each individual case, existing law, state and federal court decisions and a detailed legal determination by the commission regarding possible criminal intent.

However, the commission is not truly independent. Four of the eight commissioners are appointed directly by the General Assembly, and all eight are confirmed by both the House and the Senate. The commission is also directly dependent on lawmakers for their agency funding. Regardless of how well-meaning the individual commissioners may be, this creates an unhealthy dynamic in which lawmakers have undeniable influence over the agency tasked with investigating them.

The criminal process for potential ethics violations is thorough. However, relatively few complaints are determined to be criminal.

The real issue is that the Ethics Act itself does not treat ethical infractions seriously. There are three classes of violations: technical violations, criminal violations, and a vague category of offenses that are worse than technical, but don’t meet the stringent requirements for criminality. This has created an environment where law enforcement is rarely able to get involved, and lawmakers are accordingly policing most of their own corruption charges. In other words, lawmakers get special treatment under the law separate and apart from the general public.

Until this is changed, lawmakers will continue to consider themselves above the law that holds the rest of us accountable. The solution is to give public corruption the weight it deserves in state law, and eliminate the practice of legislative self-policing. If a lawmaker violates the law, he faces investigation and possible prosecution from law enforcement just as his constituents do. Public corruption should be no different.

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