ALTHOUGH IT was appalling, it wasn’t particularly surprising when former House Speaker Bobby Harrell reported that he had tapped his campaign account to pay his attorneys $113,475 to try to quash an investigation that led to his guilty plea to six corruption charges.
Even though the State Ethics Act doesn’t specifically allow it, neither does it ban the practice, and as we learned during the ethics investigation into then-Gov. Mark Sanford’s misuse of campaign and government resources, the State Ethics Commission said it was perfectly fine to use campaign funds to fight ethics charges. Gov. Nikki Haley had likewise used her campaign fund to pay for her legal defense against ethics charges. So prohibiting that practice had been on many people’s to-do list for reforming the ethics law.
But it turns out that there might be some question about how Mr. Harrell’s legal fees are paid. After I wrote on Sunday that his expenditure was “perfectly legal,” someone emailed me a 2013 opinion from the House Ethics Committee.
Advisory Opinion 2013-2 addresses whether legislators could use their campaign funds to cover the cost of lawsuits they filed against opponents who had failed to properly file their paperwork in that year’s ballot fiasco.
The opinion noted that state law prohibits spending campaign funds “to defray personal expenses which are unrelated to the campaign or the office” and converting them to personal use but says candidates may use campaign funds “to defray any ordinary expenses incurred in connection with an individual’s duties as a holder of elective office.”
The committee said those lawsuits “likely directly stem from one’s election, one’s campaign,” and so qualified for exemption. But it went on to caution that “this holding does not reach lawsuits resulting from a candidate’s personal misconduct” and noted that “Like all determinations on whether campaign funds are properly used, this analysis must be fact specific.”
The opinion is not precisely on point, because it refers only to lawsuits and not to investigations. But I don’t see any way that a committee that issued that opinion could possibly consider it legal to use those accounts to fight ethics charges to which the elected official eventually pleads guilty.
To do so would essentially be saying that violating the law was part of the “duties as a holder of elective office.”
So I asked House Ethics Chairman Kenny Bingham if I was misreading something, and if not, when his committee was going to insist that Mr. Harrell repay the campaign account — which would result in that money being paid to the state, as his plea agreement requires.
He declined to answer, citing his longstanding refusal to speculate about any possible cases and his contention that he is neither the chairman of the committee nor even a member during the interim between the election and the House’s organizational session, next month.
But he said the thinking behind the ruling was that when candidates or legislators have to hire attorneys to handle matters in which they did nothing wrong — say, to monitor a recount, or to fight an ethics charge over which they are found not to have violated the law — they should be able to use their campaign funds. It’s no different, he said, than hiring an attorney to advise a candidate on how to comply with the campaign-finance law.
Where the committee drew the line was when a candidate or elected official violates the law, and hires an attorney to defend his illegal actions.
“It’s all fact specific,” he said. “Let’s say John Smith is falsely accused of a crime. If he’s proven innocent, he did nothing wrong, he’s only attacked for political motivation, and he had to hire counsel, in that case I can see where that’s a legitimate expense.”
I asked if Rep. Harold Mitchell had used his campaign funds to cover his legal bills from an investigation that found he misspent campaign funds on personal items, and Mr. Bingham said he had not. I asked why Gov. Haley had been allowed to use campaign funds to pay legal expenses from the committee’s investigation concerning her service in the House, and he said it was because the committee, of which he was not a member at that time, had ruled that she did not violate the law.
Mr. Bingham said he knew the Ethics Commission had allowed Mr. Sanford to use his campaign account to pay attorney fees in his run-in with the law but was not familiar with its reasoning.
And here is an important distinction: Even though the House and Senate often follow the Ethics Commission’s lead on interpreting the law, they are not required to, you know, because of that special self-policing provision we have in state law for legislators.
But let’s assume for the sake of argument that the Ethics Commission’s interpretation did apply to the legislative ethics committees. Now that I have read the 1993 opinion that Ethics Commission director Herb Hayden told me on Monday was the basis of the advice to Mr. Sanford, I don’t see how it applies to people who used their campaign funds for personal expenses and used state aircraft for personal and political travel.
Instead, what Advisory Opinion 93-061 deals with is someone who wanted to use campaign funds to defend herself against a lawsuit filed against several county council members over their votes on a reapportionment plan. The commission ruled, quite reasonably, I believe, that “it is difficult to imagine a more ordinary and necessary duty of a county council member than casting official votes.”
From all of this, two things seem clear: The Legislature needs to specifically prohibit people from using campaign funds to pay fines from ethics charges or to defend themselves in matters where they are found to have violated the law.
And once it is reconstituted for the 2015-16 session, the House Ethics Committee needs to make as its first order of business requiring Mr. Harrell to repay his campaign account for his attorney fees.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.