Can SC school board member still have say in $23M project? What ethics commission says
A Midlands school board member will not be allowed to visit a school construction site while he’s recused himself from being involved with the project.
An advisory opinion issued by the state Ethics Commission on Tuesday says Lexington-Richland District 5 board member Ken Loveless is prohibited from visiting the Piney Woods Elementary School site or reviewing work related to the project.
Earlier this month, Loveless agreed to recuse himself because of a business tie with with Contract Construction, the main contractor on the $23 million Piney Woods project. Loveless’ company is a subcontractor with Contract Construction on a separate project, a new lab for the South Carolina Law Enforcement Division.
Loveless told The State this week that the recusal only applied to his involvement with contracts that Contract Construction had with the district. He said he still intended to visit the school site.
On Tuesday, the state Ethics Commission said he can’t do that.
The state’s Ethics Act “does not simply prohibit voting or taking other official action, but prohibits the public official from making, participating in making, or in any way attempting to use his public office to influence the governmental decision,” the advisory opinion requested by Loveless reads.
“Therefore, you should not make site visits to the Piney Woods Elementary School construction site, nor should you review invoices or any other documents related to this project. Similar activities at other District construction sites are not prohibited as long as you are not recused from those projects.”
However, the commission also says that Loveless’ recusal is temporary, pending the completion of the SLED lab.
Loveless said Tuesday he would accept the commission’s decision. “Henceforth, I will not say a word about it,” Loveless told The State.
Loveless told The State he believes Loveless Commercial Contracting’s part in building the SLEDlaboratory is “95% complete,” and he could withdraw the recusal after that.
“It’s a personal thing, it’s an honorable thing,” Loveless said. “And I expect the board will take my opinion of when it’s honorable for me to come back to it.”
A longtime critic of the project of building Piney Woods on Amicks Ferry Road, Loveless faced criticism from fellow board members after it was revealed his company in March was awarded a sub-contracting job on the SLED project led by Contract Construction.
At the time, board member Ed White accused Loveless of using his school board seat as a “money-making enterprise” to pursue the contract. Loveless has said the SLED selection process paired his company with Contract Construction based on separate bids. Had Contract Construction not been selected by SLED, Loveless Commercial Contracting could have been paired with a different company.
Loveless has acknowledged discussing potential business between his company and Contract Construction during a tour for school board members at the Piney Woods site in June.
At its Feb. 8 meeting, the Lexington-Richland 5 school board voted to ask the S.C. Ethics Commission to clarify what Loveless’ recusal would mean. Board chair Jan Hammond said the district would await an opinion from state ethics officials.
But in a letter last week, the Ethics Commission said it could not respond to a public body’s request for an opinion about an individual member. Instead, Loveless would have to request an advisory opinion on his own, or “If a Board member believes that violations of the Ethics Reform Act have occurred, the appropriate course of conduct would be to file a complaint.”
Loveless then requested his own opinion from the ethics commission.
John Freeman, an emeritus professor of business ethics at the University of South Carolina School of Law, said it’s difficult to unwind a recusal after it’s been put into effect, and a public official who makes a recusal declaration has a responsibility to stay out of an issue where a conflict exists.
Freeman noted that a recusal not only means someone can’t vote; they also can’t talk to someone in the hallway or call them at home about the issue.
“My view on recusal is if you’re out, you’re out,” he said. “O-U-T out. Get away from it.”
A former member of South Carolina’s Judicial Selection Commission, Freeman compared Loveless’ position to that of former state Judge Charlie Segars Andrews, who lost her seat on the bench after she ruled on a divorce case in favor of an attorney who had previously shared a settlement with her husband. At one point during the proceedings, Andrews said she had grounds for recusal in the case.
In another case, S.C. Attorney General Alan Wilson was rebuked by the state Supreme Court in 2016 for attempting to remove solicitor David Pascoe from his position investigating corruption in the S.C. Legislature after Wilson had already recused himself from the investigation due to a conflict of interest.
“Once you say you should recuse yourself, that’s it,” Freeman said. “Who knows better than yourself?”
The ethics expert also doesn’t buy that Loveless’ relationship with Contract Construction will end when the work on their shared project does.
“Do you see yourself working with them again?” he said. “Is there a friendship now? ... In the Charlie Segars Andrews case, the settlement with her husband had come before.”
Under the language of the state Ethics Act, neither an elected official’s personal friendships or previous business relationships are treated as potential conflicts of interest, which is why Loveless’ recusal can expire when his work with Contract Construction is completed.
Editor’s Note — This story has been updated to provide more details about how the state Ethics Act applies to Loveless’ recusal.
This story was originally published February 24, 2021 at 5:00 AM.
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