Sanford's other two ethics defenses don't wash

GOV. MARK SANFORD'S attorneys were absolutely right when they argued that Mr. Sanford's use of the state plane did not justify taking the extraordinary step of removing a sitting governor form office.

But the fact that they were right, and that six of the seven members of the House impeachment panel wisely agreed with that, should not be seen as an endorsement of the other two defenses the governor's team made of Mr. Sanford's use of state aircraft.

Since those other two defenses will no doubt re-emerge as the governor fights ethics charges pending in the State Ethics Commission and any criminal charges that might be brought, it's worth taking a moment to understand them, and what's wrong with them.

The simplest defense is that even if the governor used the state plane for something other than official state business, he didn't violate state law because he did not obtain a personal "economic interest" from the flights, which triggers a violation of the state ethics law.

Now, there are ways of lawyering up the statute and ignoring clear grammatical rules to reach this conclusion; they usually involve concentrating on the part of the definition of "economic interest" that relates to purchases, sales and leases. But the definition of what state officials can't use their positions for also includes any "arrangement involving property or services in which a public official ... may gain an economic benefit of fifty dollars or more."

Getting the state plane to take you from a meeting in West Virginia to the Georgia coast instead of back to Columbia, so you don't have to spend the time and money driving or flying from Columbia to the Georgia coast, seems pretty clearly to meet that definition.

If that's not enough, though, the state constitution prohibits the use of public funds for private purposes. And the state budget says salaries are to be considered full payment for the work of any state officials, and that perks are prohibited unless specifically listed. In other words, when officials take the state plane, they're supposed to be using it to do their jobs. Nothing more. Whether that's what the law should say as it relates to the governor is not the issue. That's what it does say.

The other defense is more complicated, because it's legitimate right up to the point where it becomes outrageously illegitimate. Unfortunately, it's hard to say precisely where that point is, although it certainly looks like the governor crossed it on some occasions. It's not much of a stretch to describe this defense as a contention that anything the governor does is official business.

This defense is built around various legal definitions and court cases but ultimately boils down to an attorney general's opinion that "Any activity which a state official is invited or required to do that would not occur but for the public office or position he holds could thus be considered 'official business' for the purpose of using state aircraft."

Well, yes, that makes sense. When you're governor, there is a public expectation that you will speak at certain events, be present to be recognized at others, whether you want to or not, whether you think it will benefit you politically or not. But where does that end? What if a wealthy individual wants to impress his friends by showing he's got enough pull to have the governor spend the weekend at his beach house? The governor wouldn't have been invited if he weren't governor, but that hardly makes the trip state business. At the extreme and ludicrous end of the spectrum, some people would try to bribe a governor because he's governor, but that hardly makes accommodating such an offer official state business.

None of this necessarily means the governor should be criminally prosecuted. That's a call that involves a delicate weighing not just of the case against Mr. Sanford but also of what is best for our state, and the rule of law - which is why Attorney General Henry McMaster should hand the decision off to someone whose own political future will not be so clearly impacted by the decision. But when it comes to the question of administrative violations of the ethics law, it seems clear that the question is "how many" rather than "whether."