Tuesday, Sep. 15, 2009

Scoppe: Ethics questions have implications far beyond Sanford case

SOME OF the questions about Gov. Mark Sanford’s use of public and campaign funds, we can hope, will have no applicability beyond this case: What is an impeachable offense? Is it appropriate to use state resources to mount a defense against ethics charges, or impeachment?

But in most cases, the implications extend far beyond the current governor. Since so many of the charges involve fairly commonplace practices that few have ever questioned, the way the Ethics Commission and attorney general handle them will set a standard for what future governors — and other elected officials and state employees — do:

• Is it legal to use a state plane to get back to work from vacation or a political event?

This arose from Mr. Sanford’s use of state planes to fly him back to Columbia from the coast, but the same principles apply to putting in for mileage reimbursement for driving back to work from a personal or political event.

The answer strikes me as obvious: If state law required you to get to the events on your own dime, then surely it requires you to get back to work the same way. The one reasonable exception would be when an emergency required you to change your plans and suddenly return to work.

I suspect many officials have not thought this through but, like the governor, have simply assumed that it was the responsibility of the taxpayers to get an official back to town for work — and that they have frequently done the same thing. Depending on how the Ethics Commission rules, that practice will either become more widespread or virtually disappear.

• Is it legal to use the state plane to fly to news conferences touting your legislative agenda? How about to an out-of-town TV interview? And if it’s generally legal, is there a point at which it crosses a line and becomes illegal?

While state law prohibits using state resources for political purposes, a significant part of the job of the governor is to try to turn his (political) platform into state law. Ditto state legislators. Still, it’s been gray enough that governors and lawmakers often have used campaign funds or friends’ planes for their statewide fly-arounds.

And what if a governor is flying to news conferences not with any real hope of influencing what happens in South Carolina, but to build up a national following? (Don’t expect a clear answer on that, since it depends on what is in an official’s heart, which most mere mortals cannot determine.)

• Where is the line between gifts given in friendship and those given because of your office? Elected officials must disclose any gifts “if there is reason to believe the donor would not give the thing of value” but for the official’s job.

Mr. Sanford says he did not report dozens of plane trips because they were gifts from friends. On its face, that’s a legitimate answer. But some of the trips were to events he attended because he was governor. Doesn’t it follow, then, that those flights are things that would not have been given if not for his position?

And what if he didn’t become “friends” with the donor until after he was elected? (This is another one that probably won’t be answered, as it requires determining the sincerity of a friendship.)

• Who broke the law if someone besides the traveler decided (without the traveler’s involvement) to purchase an expensive airline ticket? Mr. Sanford says the Commerce Department arranged his economic development trips. (Although the commerce secretary works for him, I find it believable that he had no input; it was, after all, the agency’s long-standing practice to book pricey flights for governors.)

• What are the “exigencies” that allow a state official to upgrade an airline ticket? The Commerce Department says governors need to be able to relax during overseas flights, to be ready for important economic development meetings.

That seems a reasonable exigency. But does it matter that in several cases, Mr. Sanford had no meetings for a day or more after he got off an expensive flight?

• How much detail must be provided on campaign disclosure reports for “reimbursements” to the candidate? This is another case where I believe the law is clear: Candidates and officials must report the “purpose” of all expenditures from their campaign funds. Simply identifying a check to yourself as a “reimbursement” hardly seems sufficient.

But here again, such cryptic non-disclosures are commonplace. A clear (and correct) ruling in this case could increase compliance with the law, which was written in part to make sure people don’t use campaign funds for personal purposes.

• What does “open” really mean in ethics investigations? It appears that Mr. Sanford’s decision to authorize disclosures about the probe didn’t do much more than allow the Ethics Commission to acknowledge its investigation and release its final report (which will contain as much or as little detail as the commission wants it to) and allow him to hand out whatever information from the investigation that he wants to.

I don’t think that’s what most transparency advocates had in mind when they campaigned for an open ethics process. (Mr. Sanford has even threatened to go to court to stop the commission from releasing the preliminary report that most transparency advocates would have assumed was covered under “open.”) But since this is the first high-profile case in which the target of the investigation has been willing to invoke the voluntary disclosure provision, it’s the first time most of us have realized just how insufficient it is.

Whether the governor chooses to exploit this opaque transparency provision, and exactly how much information the Ethics Commission chooses to include in its final report, could tell us whether this is meaningful transparency or a farce.

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

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