A Judge’s Misguided Ruling

IT’S NOT JUST WRONG. IT’S DANGEROUS.

Judge Casey Manning’s recent ruling in the matter of the state grand jury investigation of House Speaker Bobby Harrell will, if allowed to stand, have consequences that reach far beyond one man or one case. Judge Manning held that all allegations of violations of the Ethics Act, even multiple violations of different sections, may not be investigated by any state investigatory body – including the Attorney General – without first being investigated by the House or Senate Ethics Committee.

Although the state ethics law provides for criminal penalties, as Attorney General Wilson pointed out in open court, Judge Manning dismissed Wilson’s position that the case “rises to the level of criminal activity under his jurisdiction,” citing a 1994 state Supreme Court ruling that, he argued, “provides that Ethics Act violations are civil in nature, not criminal.”

Judge Manning’s ruling makes two bizarre and factually mistaken claims: first, that “the allegations of the citizen’s complaint giving rise to this investigation were conclusively within the Ethics Code”; and second, that “despite multiple requests, the Attorney General has failed to offer or present to the Court any evidence or allegations which are criminal in nature.” The judge is wrong on both counts: both the original complaint and the accompanying letter speak of “criminal” and “ethics” violations that “rise to the level of public corruption” – clearly a criminal matter. And the Attorney General did, in fact, present the court with evidence that this was the case.

In any case, the technical wording of the complaint is irrelevant. The state constitution gives the Attorney General full discretion to investigate any public official he deems to have violated the law. The complaint was never formally “filed” with the Attorney General but served as an informal collection of evidence, with which the Attorney General could use or ignore. It bears no legal significance.

But here’s the point. The precedent set by this ruling isn’t just wrong: it’s dangerous.

If that precedent passes into established law, members of the General Assembly will be, in a very real sense, above the law. They would be able to violate the Ethics Act without fear of punishment unless for some reason they have enemies on the ethics committees.

Here are a few things lawmakers could get away with:

SECTION 8-13-700. Use of official position or office for financial gain; disclosure of potential conflict of interest.

Any lawmaker can now advocate for a law or budget item that openly bestowed special privilege on a company owned by himself or a friend or a family member.

Example: A lawmaker can craft a tax incentive law that applies only to his own business, or alternatively he can simply insert a proviso into the budget appropriating state monies for his business.

SECTION 8-13-705. Offering, giving, soliciting, or receiving anything of value to influence action of a public employee, member or official, or to influence testimony of witness; exceptions; penalty for violation.

Lawmakers may now accept and solicit bribes and provide legislative influence in return.

Examples: A business is now able to pay cash (name the amount) to a lawmaker in exchange for that lawmaker providing favors to that company. Favors could include cash taxpayer-back grants and loans, tax favors, harsher regulation on competitors, etc.

SECTION 8-13-725. Use or disclosure of confidential information by public official, member, or employee for financial gain; examination of private records; penalties.

Currently lawmakers may be privy to the details of economic development deals between the state and private companies that are kept secret from the public while being negotiated. Now lawmakers can use this knowledge to reap a financial gain for themselves or their friends or family.

Example: A lawmaker may be aware of a deal being negotiated that would provide tax incentives or other subsidies to a company in exchange for the company expanding or otherwise creating new facilities and jobs in South Carolina. This deal, when announced, may increase the value of the company, and a legislator can use his advance knowledge of the deal to either purchase partial ownership in the company himself or encourage friends or family to purchase ownership in the company before the deal is announced. The lawmaker and or his friends or family can then profit when the deal is announced and the expected increase in value of the company occurs. In short a legislator can engage in the equivalent of insider trading.

SECTION 8-13-750. Employment, promotion, advancement, or discipline of family member of public official, member, or employee.

Lawmakers may now appoint family members to boards and commissions they supervise.

Examples: Lawmakers can appoint their spouses, siblings, and children to boards and commissions of their choosing, thus giving them unfair extended influence. Family members can be chosen over more qualified candidates with no repercussions. Of note: Speaker Harrell has already appointed his brother to the Judicial Merit Selection Committee.

SECTION 8-13-1110. Persons required to file statement of economic interests.

SECTION 8-13-1120. Contents of statement of economic interests.

SECTION 8-13-1308. Filing of certified campaign reports by candidates and committees.

Lawmakers would no longer have to file statements of economic interests which include their sources and amounts of public income, gifts, government contracts, certain business connections, and more. Moreover, they no longer have to publicly display campaign contributions and expenditures.

Examples: A lawmaker may now keep secret all of his income and contracts with the state that he or she profits from. This lawmaker can now directly profit from actions of the state without having to make it known to the public. Moreover, citizens may have no idea what their lawmakers are spending their campaign funds on.

SECTION 8-13-1348. Use of campaign funds for personal expenses; expenditures more than twenty-five dollars; expenditures not to exceed fair market value; petty cash funds.

Lawmakers could now buy whatever they wanted with campaign money, whether it bears any connection to their campaign or not.

Example: The possibilities here are nearly endless. Lawmakers can use money raised in the name of a campaign to purchase luxury vehicles or homes or spend it on a personal jet. Lawmakers can also use the money to fund lavish vacations. They can purchase all these things and more for themselves, their friends, their family, or others with whom they’re trying to cultivate relationships.

Without pretending that these violations haven’t been occurring for years – The Nerve has reported many such instances – we can say without exaggeration that Judge Manning’s ruling could put them beyond the reach of the law.

The House and Senate Ethics Committees have generally not held lawmakers to a high standard of public conduct.  But it has been at least possible for diligent journalists to find out part of the truth. If Judge Manning’s ruling is allowed to stand, the entire system of conflicted interests and self-enrichment may simply go dark.

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