SC AG backs Richland Co. board’s firing authority

Judge would have to back attorney general’s opinion

cleblanc@thestate.comNovember 28, 2012 

Richland County Elections Director Lillian McBride address the Richland County legislative delegation during a hearing about what went wrong in the Nov. 6 Richland County elections.

C. ALUKA BERRY — Buy Photo

Richland County’s elections board has the power to fire embattled elections director Lillian McBride, the state Attorney General’s Office said Monday.

But the legal opinion — which doesn’t carry the force of law and might not ultimately determine McBride’s professional future — at least offers guidance that the five-member board, and not the county’s legislative delegation, has the authority to punish the person many critics blame for the 2012 Election Day fiasco.

“... it is our opinion that a court would likely conclude that the direct discharge authority of the ‘initial director’ rests with the Board of Elections and Voter Registration,” veteran deputy attorney general Robert D. Cook wrote.

Efforts Tuesday to gauge whether the board would consider disciplinary action against McBride were unsuccessful. Messages left for three of the board members, as well as for the attorney it hired to investigate the bungled election, were not returned. A fourth member, Tina Herbert, disclosed that she has resigned, leaving the body with two announced vacancies.

The Richland County legislative delegation, which appoints the elections board and pushed for a law that appeared to protect the first director, on Monday showed no appetite for removing McBride. Delegation chairman Sen. Darrell Jackson was adamant that her office’s Election Day mistakes were human error, not displays of incompetence.

A legal question — and the sentiment from many disgruntled voters — has lingered since the botched Nov. 6 election: Was McBride untouchable because of the language the Legislature adopted when it merged the two Richland offices, as many counties have done in recent years? The county’s legislative delegation selected McBride as the first director. She was chosen over an elections official who had run races within the county for 40 years.

Cook’s six-page opinion recognizes “ambiguity” and “conflicts” in the law that in July 2011 combined Richland County’s elections and voter registration offices.

Sections 5 and 6 of the law appears to be at odds on that point, Cook wrote.

Section 5 states that the initial director (McBride) “must be employed by a majority of the Richland County Legislative Delegation. Subsequently, the (elections) board shall employ the director, determine the compensation, and determine the number and compensation of other staff positions.” The board’s job includes certifying election results and hearing protests.

Section 6 states the elections director is responsible for hiring and managing the staff positions. But in the last clause of Section 6, the law states: “... the director serves at the pleasure of the board.”

That final phrase dealing with the Legislature’s intent tilted Cook’s opinion — which speaks for Attorney General Alan Wilson and is binding only if a judge accepts it.

If legislators intended the delegation to have the power to fire the first director, it would have spelled that out, Cook concluded.

He wrote that the “last expression of legislative will” in a statute prevails.

“... based upon various principles of interpretation, including that of common sense, we believe that the better interpretation and one a court would likely adopt is that the direct discharge authority of the ‘initial director’ lies with (the board),” Cook wrote.

The opinion was requested by Sen. John Scott, D-Richland, and was delivered to him as the delegation opened a hearing Monday at which McBride, for the first time, publicly answered some of the questions surrounding the hotly disputed election process that has drawn two court orders, a lawsuit, an official protest and left frustrated voters demanding explanations — if not McBride’s $86,344 job.

This latest development in what has become a three-week saga, comes as the public learns that a second board member had resigned her post.

Herbert, appointed in March 2010, stepped down Oct. 18 and made her resignation effective immediately.

Tuesday, Herbert, who is director of Columbia’s Office of Business Opportunity, declined to say why she stepped down.

“I am no longer a commissioner, so I don’t have a comment,” Herbert said. “I’m not going to discuss why I left.”

Efforts to get a copy of Herbert’s resignation letter were unsuccessful Tuesday. An assistant to the delegation said she believes Herbert sent her letter directly to Jackson, D-Richland. The assistant said she would ask Jackson for a copy.

Board chairwoman Liz Crum stepped down from her 12 years on the board the day before voters stood in line for up to seven hours and an untold number left without casting their ballots. She said her resignation is effective at the end of her term, March 15, 2013.

Crum disclosed her departure a few days after the election, when The State newspaper asked if she had resigned.

Messages left Tuesday for Crum did not produce a response — a stark contrast to the public role the chairwoman took on for the board and McBride’s office after McBride stopped speaking publicly on Election Night.

During that first week, Crum sought out reporters, including visiting newspaper and television newsrooms to apologize for the mess, provide some data about the numbers of machines used at the polls and to pledge that problems on that scale would not happen again.

McBride remained mum for three weeks until she addressed the delegation Monday during a nearly 31/2-hour hearing that left some legislators and many onlookers without answers to critical questions about why her office mishandled the balloting.

SC Attorney General Alan Wlson's opinion.

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Reach LeBlanc at (803) 771-8664.

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