Subpoena against former LR5 attorney quashed in Loveless ethics case
At least one subpoena issued in a state ethics case involving a Midlands school district has been quashed.
The S.C. Ethics Commission has blocked attorneys for Lexington-Richland 5 board member Ken Loveless from requiring former school district attorney Michael Montgomery to answer questions under oath in the case.
Montgomery had been subpoenaed top give a deposition in an ongoing ethics case against Loveless. Also subpoenaed are the original complainant in the case, Kim Benson; former school board chairman Michael Cates; Contract Construction president Greg Hughes and former school board member Ed White.
All have asked the commission to set aside their subpoenas as well. No other orders had been issued as of Monday afternoon, and a scheduled hearing Monday on Benson and Cates’ subpoenas was postponed.
In one way, the argument for dismissing Montgomery’s subpoena was the most straightforward. Montgomery was the district’s attorney from 2014 until 2020, and thus the Ethics Commission decided that any interactions he had with the Lexington-Richland 5 school board regarding the issues in Loveless’ ethics case are covered by attorney-client privilege. That means he couldn’t legally be required to answer questions about them in a deposition.
“Here, the Panel finds that the discovery sought by Respondent is not reasonably calculated to lead to the discovery of admissible evidence,” the commissioners said in their order. “Rather, the information sought by Respondent through Montgomery’s deposition testimony would implicate the attorney-client privilege.”
The subpoenas were issued as part of an investigation into charges Loveless violated the S.C. Ethics Act when overseeing the construction of Piney Wood Elementary School, which was being carried out by Contract Construction. Loveless’ own company was working with Contract Construction on an unrelated project.
State law requires that school officials recuse themselves from involvement with a company’s work with the school district if the official or their family has a financial interest in the company. Loveless recused himself from the Piney Woods project in early 2021 after fellow board members complained about his relationship with Contract Construction.
Loveless is accused of inquiring about Contract Construction’s work on Piney Woods Elementary School in a letter on March 24, 2020, even though Loveless’ company had been awarded a more than $1 million contract with the company for another job. Loveless is also accused of improperly participating in board discussions of Piney Woods on June 15 and Sept. 14 of that year. Loveless also visited Piney Woods in June 2020 to review Contract Construction’s work.
The subpoena request from Loveless attorney Desa Ballard claimed that “Mr. Montgomery participated in revealing the existence of a contractual relationship between Loveless Commercial Contract, LLC and Contract Construction, LLC.” In an email to Montgomery attorney Frank Potts, Ballard claimed that Montgomery “was working with Ed White and possibly others to have Mr. Loveless removed from the Board.”
The Ethics Commission is not done with the Loveless case this week. On Thursday, the board is holding a hearing on whether to reschedule its hearing on the charges against Loveless. That hearing was originally scheduled for next February, but Loveless is asking to have the case heard and decided before Nov. 8, when he is running for re-election for another term on the Lexington-Richland 5 school board. The commission will also consider a motion to dismiss the charges.
Loveless is also seeking to subpoena information for a separate lawsuit he filed against a constituent accused of defaming Loveless on Facebook. Last week, his attorney asked Facebook to turn over data on 38 different Facebook pages in connection to the suit, including several school district constituents, parents, at least one teacher, a former board member, an opposing attorney and members of the media covering the school district.
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