Cindi Ross Scoppe

August 6, 2013

Scoppe: Ethics commissioners in legal limbo

What does it mean when the governor holds ethics commissioners in legal limbo, not replacing them once their terms expire? More to the point, what can be done about it?

Back in 2008, The State’s Rick Brundrett discovered that a third of our state’s magistrates were serving in legislative limbo: Their terms had expired, but they had been neither replaced nor reappointed.

State law says governors appoint magistrates, but in reality they appoint whomever the local senator recommends — which is to say that individual senators appoint these judges. State law also says magistrates can be removed only by the Supreme Court, and only for cause, but this holdover arrangement meant they could be replaced at a moment’s notice, at the appointing senator’s instigation. Even if that senator practiced law before them.

Flash forward five years, and Mr. Brundrett, who now reports for the S.C. Policy Council’s The Nerve, has discovered another case of important political appointees being held in limbo. Only this time, it’s the governor who’s been holding them hostage.

We could write this off as inattention to the job in most cases, because in most cases, the governor can fire her appointees for any or no reason at all. And appropriately so. But the appointees in this case are members of the State Ethics Commission, who are on a short list of appointees the Legislature protected from firing, in order to keep them as independent as possible of the person who appoints them. And appropriately so. After all, they are essentially judges. Judges who are empowered to judge the governor.

It turns out that six of the seven current ethics commissioners have completed their five-year terms and are serving in holdover status — one since 2010, one since 2011 and four since June 30. Two seats are vacant.

Now, I’m not sure how much the threat of being yanked off the Ethics Commission influences ethics commissioners, because I’m not sure that serving on that commission is considered a plum appointment in the same way as, say, the USC and Clemson boards of trustees or even the board of the Ports Authority. But certainly there are some people who like being in that position or who, for political reasons, want to be in that position.

Beyond that, state law prohibits governors from reappointing ethics commissioners. So in addition to keeping the members in limbo, where they know they can be removed immediately if they displease the governor, the governor’s inaction subverts the law’s attempt to bring in fresh new commissioners routinely. It’s gotten so bad that if the governor decided to take action, she could sweep away all but one commissioner in one fell swoop, leaving only one commissioner who has ever been involved in overseeing the agency and handling complaints. Which, again, the law attempts to avoid, in this case by staggering the terms.

All of this might be insider thumb-sucking if not for the fact that for nearly the entirety of the limbo period, the commission had before it ethics charges against Gov. Nikki Haley. Not particularly significant charges, mind you, but charges nonetheless. Charges that were settled last month without a public hearing and with the governor agreeing to pay a total of $9,677 in fines and reimbursements for accepting a handful of donations for which she couldn’t produce the donors’ addresses.

Yes, the donations amounted to just $4,177 out of the $3.2 million Ms. Haley raised for the 2010 campaign. And the fact is that nearly all ethics charges are handled this way, with secret negotiations ending in a negotiated settlement.

But this situation begs the same question as the one raised by the holdover magistrates: Did the holdover commissioners feel pressured to go easy on the governor? And did the governor mean for them to feel pressured?

The unfortunate fact is that even if she had no impure motives — even if this is just a matter of failing to do the basics of her job (and no small matter, that; just a different matter) — this is the sort of thing that engenders yet more distrust of government. And on the very issue on which she is so vulnerable, and that she has tried to claim as a signature issue.

Nikki Haley isn’t the first governor who has failed to keep up with her appointments. And she won’t be the last — unless we change the law. Which the House did not do in the ethics reform bill it passed this year and the Senate Judiciary Committee did not do in the bill it approved, which awaits debate in the full Senate when lawmakers return in January for the 2014 session.

The House bill makes no changes to the Ethics Commission; the Senate version adds legislative appointments to the panel but retains the current requirement that these politically insulated members serve “for five years and until their successors are appointed and qualify.”

That’s standard language for gubernatorial appointments, and there is some logic to it: If appointees were removed at the end of their terms, a governor could either deliberately or out of laziness cripple important boards by leaving them without a quorum to conduct business.

Of course the downside is that whole holdover problem.

Fortunately, as with so many situations in which the obvious choices all create problems, it’s easy devise an alternative. For instance, we could say that if a governor doesn’t appoint a replacement by the end of the term, someone else gets to make the appointment. The Senate, for instance, or the House, or the entire Legislature. The chief justice, for that matter.

The point isn’t to pick the perfect official or officials to make the appointment — the governor, after all, is the person who ought to be doing it. The point is to prevent the holdover problem without creating the vacancy problem. Think of it as providing a little more incentive for governors to do their jobs.

Ms. Scoppe can be reached at or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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