Wednesday, Jan. 07, 2009

Scoppe: Powerful, underused law takes center stage in ESC battle

IT WAS EASY to overlook the fig leaf that Gov. Mark Sanford draped over his administration when he relented at the last minute and signed a federal loan request to keep unemployment insurance from running dry for laid-off workers.

But his threat to fire officials if they refused to give him the unemployment data that he had been seeking deserves some attention, because it’s a smart use of a grossly underused law and because it raises questions about why this episode of brinkmanship even occurred to begin with.

Mr. Sanford bases his threat on sections 1-3-10 and 1-3-240 of the S.C. Code of Laws. The first section requires any official in the executive branch to “immediately furnish to the Governor, in such form as he may require, any information desired by him in relation to their respective affairs or activities.” The second lets the governor remove any state or local official whom he determines to be “guilty of malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity.”

It’s tempting to call these powerful laws “obscure,” because they certainly don’t get the work-out they deserve. But the information law is no secret to Mr. Sanford, who is mired in a dispute over his 2007 demand for information from the Workers Compensation Commission, whose members he appoints but whom he cannot fire without justification. Just last month, a federal judge ordered that commission not to give the governor any information until he could further consider the matter.

A lot of people (myself included) considered Mr. Sanford’s 2007 use of the information law an inappropriate, perhaps even illegal, attempt to bully Workers Comp commissioners into ruling the way he wanted in cases between injured workers and their employers. He had demanded detailed explanations for their decisions. Although the governor didn’t explicitly threaten to fire commissioners who didn’t comply, many of us read an implicit threat into his request.

But there’s nothing inappropriate about demanding that the Employment Security Commission give him unemployment data that his Commerce Department might find helpful in luring more jobs to the state. Whatever data the agency has about the unemployed should be available to anyone who wants to see it.

There’s no question that refusing to provide data to the governor is a firing offense. Then-Gov. David Beasley established that — quite by accident — when he used the information law as his own after-the-fact fig leaf for firing Boykin Rose as director of the Public Safety Department (yet another official the governor appoints but can’t remove without cause). The courts sharply rebuked Mr. Beasley for suspending Mr. Rose on convoluted charges about the bizarre way he ran the agency, but said the governor had every right to remove the director for refusing to turn over information about federal grants.

What hasn’t been determined is whether a governor can force an agency to spend money it doesn’t have — and if so, whether there’s any threshold beyond which he cannot require an agency to spend money — to provide data it doesn’t collect or can’t compile in the way he wants it. That’s what Employment Security Commission officials say is the problem in the current case, and if it comes down to it, a court ruling could be quite instructive.

Still, it seems obvious that a governor should try this route to get information before resorting to the extreme tactic of holding laid-off workers hostage, as Mr. Sanford did for weeks.

Mr. Sanford’s spokesman, Joel Sawyer, told me Monday that the governor 1) had not thought of combining the demand for information with the threat to fire until just recently and 2) had thought for weeks, even months that the agency was going to give him the data he wanted and welcome the audit he sought, without his having to resort to threats.

Now I must say it seems more than passing strange to consider demanding information under state law to be more confrontational and extreme than holding laid-off workers hostage. But Mr. Sawyer says the governor never said he wouldn’t request the loan; rather, he said he would request it if the agency met his demands. That sounds like word games, but I suppose that in a convoluted way, you could argue that the governor’s ultimate decision to sign the loan absent the conditions being met could be seen as vindicating that distinction. (It also could be seen as demonstrating that this whole drama was a ruse by a grandstanding governor who miscalculated public response, as some believe.)

But it’s hard to avoid calling the governor’s handling of the situation incompetent if in fact he had not even considered using the information and firing laws in combination, a la Boykin Rose, or the widely perceived intent of his Workers Comp demands.

Now that the governor has appropriately exercised his authority, the agency should immediately provide him any data it can, and explain clearly and publicly what it cannot produce, why it cannot produce it and how much it would cost to produce it.

Of course, all this would all be a moot point if the governor got to hire and fire the agency’s director, as he should: He would have had complete access to any information the agency had, and could have changed the agency’s priorities in order to ensure that it collected the data he wanted. And he couldn’t have hidden behind his allegations of agency incompetence and waste to stall on the federal loan request.

In that sense, it’s just one more example of how, by withholding authority from governors, the Legislature also frees them of responsibility for many actions, and even provides them with easy excuses for their failures.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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