S.C. Supreme Court to rule on Ethics Commission report

Attorneys: Gov. Sanford didn't waive right

joconnor@thestate.comOctober 27, 2009 

  • What's next?

    - The State Ethics Commission and S.C. House have until 5 p.m. Friday to respond to Gov. Mark Sanford's argument, filed Monday with the S.C. Supreme Court.

    - Sanford then has until 5 p.m. Monday to respond to those arguments.

    - Afterward, the court could rule in the case - blocking the Ethics Commission from giving the House the preliminary findings of its investigation into allegations against Sanford or permitting that exchange of information.

    - The court also could sidestep the issue, ruling Sanford's motion to bar release of the preliminary findings is premature because that report has not yet been completed.

Gov. Mark Sanford's attorneys said Monday the embattled governor could not approve the release of a State Ethics Commission investigative report even if he wanted to.

Monday's filing was in response to a request by the S.C. Supreme Court asking whether Sanford had not already waived his right to confidentiality in that investigation.

Sanford has asked the court to prevent the State Ethics Commission from giving the report - which lays out the case against Sanford without his complete defense - to lawmakers who are considering impeachment hearings against the two-term Republican governor.

Sanford vanished in June for five days, returning to acknowledge an extramarital affair. Subsequently, the Ethics Commission launched an investigation into Sanford's travel, and use of planes and campaign funds.

An August letter from Sanford to the commission became an issue at a court hearing last week, as justices pressed Sanford attorney Kevin Hall about whether the governor had waived his right to a confidential investigation.

In their response Monday, Sanford's attorneys said state law prohibits releasing the report even if the governor waived confidentiality. In addition, they wrote, past court decisions require that waivers be interpreted as narrowly as possible when due process rights are involved.

"If the agency's investigative report ... could be made public," Sanford's attorneys wrote, "the opportunity for political mischief would be irresistible. The public's confidence in proceedings before the commission would be irreparably damaged under this scenario."

During last week's court hearing, Ethics Commission attorney Cathy Hazelwood argued Sanford issued a blanket waiver in August - when he allowed the commission to acknowledge it was investigating allegations against him. "That's been a genie they've been trying to stuff back into the bottle."

But Sanford attorney Hall disagreed, arguing the agency was engaging in "bait-and-switch behavior" to release all materials related to its investigation after Sanford allowed only acknowledging to the public the existence and scope of the investigation.

Letters between Sanford and the commission, Hall argued, show agreement as to the extent the governor was waiving confidentiality.

"Now that the governor has relied upon the commission's representations," Sanford's attorneys wrote Monday, "it would be wholly unfair and prejudicial to allow the agency to switch its position."

Attorneys for the Ethics Commission and state House of Representatives have until 5 p.m. Friday to respond to Sanford's arguments. The governor then can respond to those arguments until Monday at 5 p.m.

Reach O'Connor at (803) 771-8358.

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