SC ethics board wrong on school board member and similar cases for 30 years, lawyer says
CORRECTION: The South Caroline Ethics Commission determined that former Lexington-Richland District 5 School Board member Ken Loveless committed three violations of South Carolina’s ethics law. An earlier version of this story incorrectly reported that Loveless had been convicted by the commission of four violations. Loveless was not convicted of any crime by the ethics commission. The State regrets the error and apologizes to Mr. Loveless for the mistake. Also, Loveless has appealed the decision by the Ethics Commission, which led to a fine of more than $6,000. Loveless is not seeking to have the fine imposed by the Ethics Commission withdrawn independently of his request to have the entire decision reversed.
An ethics decision against a former South Carolina school board member is invalid because the S.C. Ethics Commission has been misinterpreting the state Ethics Act for almost its entire existence, his attorney argued at a hearing on Thursday.
Desa Ballard said she was trying to figure what exactly her client, former Lexington-Richland 5 school board member Ken Loveless, had done wrong to merit a March 2023 determination that he violated the state’s ethics law. The answer, she said, was in one of the commission’s earliest findings, which a commissioner cited in an initial decision not to dismiss the accusations against Loveless.
In one of the new agency’s first advisory opinions issued in 1992, “It said the inquired action was not prohibited, but you maybe kind of shouldn’t do it because of the appearance of impropriety, when that is not in the statute,” Ballard said. “This commission went wrong from day one.”
The determination that her client committed three violations of the ethics law should be dropped, she said, because the interpretation the commission relied on was fundamentally flawed. If the commission didn’t reverse its findings against Loveless, she suggested an appeal to the S.C. Supreme Court would be in order to change how the Ethics Commission has been interpreting its primary purpose of policing unethical conduct among elected officials.
“You’re looking at 30 years of precedent that is wrong,” Ballard said. “It doesn’t matter how long you’ve been wrong, you have to say so.”
It’s been almost two years since the Ethics Commission handed down its determination and ordered Loveless to pay a fine of more than $6,000. The commission found that Loveless in 2020 took official action over the construction of the new Piney Woods Elementary School by a company he was doing business with.
He was found to have inquired about Contract Construction’s work on Piney Woods in a letter to the district superintendent on March 24, 2020, after Loveless’ company had been chosen to work with Contract Construction on a project for the S.C. Law Enforcement Division. Loveless also participated in board discussions of Piney Woods on June 15 and Sept. 14 of that year.
“The Commission has long held that recusal is required in any matter that implicates the economic interest of a business with which a public official is associated,” the Commission said in its order issued in March 2023.
The panel ordered Loveless to pay a fine of $5,250, or $1,750 for each count, plus a $900 administrative fee.
Loveless argued that none of those instances constituted being involved in a “government decision” as prohibited by the ethics law, and Ballard leaned hard into that argument at Thursday’s hearing in front of a reduced ethics commission. Three commission members recused themselves from the hearing because they were part of the panel that made the previous decision in the case.
Courtney Laster, the commission’s general counsel, argued Thursday that three actions by Loveless do constitute official actions that fall within the commission’s authority to police.
“An action is literally doing a thing,” Laster said. “Using the respondent’s interpretation would lead to an absurd result where you can do anything short of taking a vote, and that’s fine. ... You may as well throw the Ethics Act out the window.”
Ballard argued the intent of the Ethics Act was to prohibit public officials from acting in the interests of private companies they are associated with, whereas Loveless was consistently critical of the work Contract Construction was doing on the Piney Woods project.
“He did exactly the opposite of what the law prohibits,” she said. “This wasn’t ‘I voted for you, so how about I get a contract?’ It’s ‘I have a contract, but you’re doing poor work.’”
Laster argued that the law requires “Contract Construction’s interests be imputed to Mr. Loveless,” regardless of whether actions taken related to the company were favorable or not.
The commissioners did not issue a ruling in the case Thursday.
The Ethics Commission cleared Loveless on a fourth accusation that he had participated in a school board visit to the Piney Woods site in June 2020. Commissioners said that accusation had not been proven, although both Loveless and Contract Construction President Greg Hughes told The State in September 2020 that the visit had taken place.
”That was June 18, 2020,” Loveless said in a 2020 interview with The State. “I was walking around the job site. We went for a tour of the building, an organized tour, and I walked around with Greg Hughes.”
Other board members criticized Loveless’ involvement at the time, and in February 2021, Loveless recused himself from further engagement with the project. After he asked for a formal opinion, the Ethics Commission said Loveless must step back from any discussion or oversight of the $23 million Piney Woods construction project. But that opinion only applied to the legal boundaries of the recusal Loveless had already made.
A two-year legal fight ensued when a constituent then made a complaint about Loveless’ past conduct with Contract Construction and Piney Woods.
Loveless’ appeal also questioned whether the Ethics Commission is able to fine him now that he is no longer a member of the school board. Loveless lost his re-election bid in November 2022 by just 14 votes.
Any hearing on Loveless’ appeal was delayed while Loveless ran for another term on the Lexington-Richland 5 school board in 2024, as the Ethics Commission didn’t want to issue a decision about an active candidate ahead of the last election. Loveless was ultimately defeated in his bid for a return to the school board.
Outside of his ethics appeal, Loveless also filed a federal lawsuit alleging the ethics allegations are part of a conspiracy against him. He accuses former school board members Michael Cates, Beth Hutchison and Ed White as well as former school district attorney Michael Montgomery of retaliating against him for raising concerns about the Piney Woods project.
Because one of White’s law partners had formerly served on the Ethics Commission, that lawsuit claimed, “Plaintiff has reason to believe that White may have ghost written some of the documents that have been issued by the State Ethics Commission during the same period of time as the ongoing retaliatory actions which form the basis of this complaint.”
That lawsuit was ultimately thrown out by a judge, but Loveless is attempting to add the federal defendants to a separate defamation case in state court that he filed against current school board member Kevin Scully back in 2022. That motion is scheduled to be argued in a court hearing Wednesday at the Richland County Judicial Center.
This story was originally published January 16, 2025 at 1:27 PM with the headline "SC ethics board wrong on school board member and similar cases for 30 years, lawyer says."
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