New Ethics Measures Proposed, Debated

WHAT IS SO HARD ABOUT ELIMINATING EXEMPTIONS AND LOOPHOLES?

On Monday the House Ethics and Freedom of Information Act Ad Hoc Study Committee met to consider six proposals. Two of the six proposals – one that would ban “leadership PACs” and another that would codify the definition of “committee” for purposes of PAC disclosures – passed unanimously and without much debate.

The first bill to receive significant debate is essentially a response to a recent state Supreme Court decision decreeing that public bodies need not post agendas prior to meeting. This legislation would require all public bodies to post an agenda in a publicly accessible place and on a website (if they have one) at least 24 hours prior to a regularly scheduled or special meeting.

The bill would also prohibit a public body (including legislative committees) from adding an item to a meeting agenda without 24 hour notice to the public; members of public bodies could override this latter provision and add an agenda item without notice by a two thirds vote. It was noted on several occasions that the local governments were not going to be pleased with this new law if passed. Rep. Grady Brown (D-Lee) requested that the School Board Association, Municipal Association, and the Association of Counties be notified of the changes they’ll be expected to comply with next year. The chairman of the committee, Rep. Derham Cole (R-Spartanburg), responded that it’s “always an issue with anything [they] pass” to make sure “the people that are going to be affected by it know what’s coming and how to address it.”

The next bill to receive debate by the committee was one that at first glance seems to narrow the near-total exemption legislators currently enjoy from the Freedom of Information Act (FOIA) but on closer inspection doesn’t accomplish that end. Lawmakers had endless questions as to what would and wouldn’t be subject to FOIA. Many, for instance, were concerned with business conducted on their cell phone or private email. Committee members were also greatly concerned with the “burden” this would put on them. Rep. Mandy Powers Norrell (D-Lancaster) correctly noted that if lawmakers simply use the State House server for all of their communication, it will be easy to meet FOIA requests.

While many on the committee strongly implied the proposal goes too far and would place too much of a burden on lawmakers, Rep. Ralph Norman (R-York) expressed concern that the bill would still permit exemptions to the law. The bill would delete part of the law’s exemption language, but actually expand the exemption of lawmakers’ “working papers” to all elected officials in the state. Essentially, then, this proposal, while presenting itself as a “reform” to the Freedom of Information law, would preserve a way for lawmakers to exempt themselves from it, and create a way for other public officials to do the same. (Rep. Norman’s was one of two dissenting votes on the legislation.)

Legislation that would create the Office of FOIA review, which would be headed up by the Chief Judge of the Administrative Law Court, also received significant debate. This bill would implement caps on search fees. These fees would be capped at $100 an hour, and the first two hours would be free. The real question here, though, isn’t whether citizens should or shouldn’t be overcharged for public information; the real question is why they should be charged at all. Many agencies have one, if not several, public information officers, or PIOs, whose job it is to respond to requests for public information. The information belongs to the public. The public paid for it, and the public is paying the salaries of the PIOs who supply it to them. Why charging is even an issue remains unexplained.

Nor is it clear why a new government office is needed when a citizens can already take a FOIA complaint to a court – as the South Carolina Public Interest Foundation successfully did against Ethics Commission Director Herb Hayden, who claimed to The Nerve that a public record had been destroyed when it had not. When discussing this proposal, Rep. Bill Taylor (R-Aiken) spoke of a conversation he had with Secretary of Commerce Bobby Hitt in which Hitt said he receives numerous FOI requests from individuals on “the fishing expedition looking to see where the incentives are, and who’s doing a deal.” Hitt, according to Rep. Taylor, would “like a little recourse once in a while to be able to slow down somebody who’s just being annoying.” Rep. Taylor’s priority, then – if we are interpreting his words accurately – isn’t to make government more transparent, but to provide high-level bureaucrats like Secretary Hitt with a means of “recourse” against those who want to know what taxpayer-backed favors government agencies are giving to large corporations.

Finally, lawmakers took up an income disclosure bill that would revise the current law’s definition of “business with which he is associated” to require that public officials only have to report business interests if they or an immediate family member hold 5 percent or more of the interest in the company and if his share is valued at more than $100,000. Rep. Norman noted that this threshold permits a significant loophole for reporting. He intends to put forward an amendment on the House floor when the bill comes up for debate to eliminate both thresholds and require all public officials to report all of their business interests. Requiring public disclosure of private income should be as simple as possible. Citizens have a right to know who is paying the public officials who make laws for them, and arbitrary thresholds do little but give public officials a way around disclosure.

The standard for reporting interests is already murky, and the process by which the House Ethics Committee issues clarifying opinions is anything but clear. Where there is any room for interpretation, lawmakers have erred on the side of under-reporting. There should be no loopholes, no wiggle room. All income, material benefit, and business interests should be reported. These proposals will be put forward to the House at the onset of the legislative session with a favorable report from the committee. Every bill still has to go through the regular legislative process.

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