THERE ARE plenty of agencies over which the governor of South Carolina could argue that she has no control.
There’s the largest and most important state agency, the Education Department, which receives more than a third of the state budget and whose director is elected by the public.
There are all of the colleges and universities, which are controlled by presidents who work at the pleasure of trustees whose members are appointed almost entirely by legislators.
The governor has no control over the attorney general or the treasurer or comptroller general or secretary of state, who like the agriculture commissioner and (until 2018) the lieutenant governor and adjutant general likewise are elected independently of the governor.
The governor appoints the boards that hire the directors of the Ethics and Election commissions, but she can’t remove the board members unless they break the law or commit one of a very limited number of other infractions. She also hires the SLED chief and director of Public Safety, but while governors and directors of those agencies have always talked as if it were otherwise, she has those same very limited circumstances under which she can fire them — which is to say she has no control over them.
She appoints the DHEC board and even has veto power over the director, but she can’t remove the director or the board members. She hires and can fire the Transportation director, but legislators appoint a board that has the power to thwart much of what the director might try to do.
There are scores of agencies, from the Arts Commission to the Department of Mental Health, where the governor hires and can fire the board members who hire and fire the director, so she does technically have the authority to control those agencies, but it’s in such a roundabout way that it’s not practical to think a governor would get involved unless there are incredible problems, or else she has an ideological burr under her saddle.
In fact, in all of state government, there are only 15 agencies that we truly could say a governor controls. She has nearly unlimited authority to appoint directors of these Cabinet agencies (subject only to Senate confirmation, which is, appropriately, almost always a given) and completely unlimited authority to fire them.
So it was pretty jarring to see Gov. Nikki Haley arguing that she should be dismissed as a plaintiff from a federal lawsuit against one of those Cabinet agencies — the embattled Department of Social Services — because she doesn’t oversee the agency, but merely appoints and removes its director.
Specifically, she says she does not have the power to take the actions that the lawsuit seeks; only her appointee has those powers. It’s an argument that governors have made, successfully, on more than one occasion.
And what in political terms might be a distinction without a difference could turn out to be decisive — in the governor’s favor — in legal terms.
But it raises the question: Should it be?
After all the years my editorial board and I and other reformers the state over have spent arguing for more authority for governors, can we really be comfortable that, at least in a court of law, that authority comes without responsibility?
After all, the Legislature made a very a deliberate decision to put the governor in charge of that small handful of agencies, by allowing governors to hire and fire agency directors for any or no reason.
The last thing I want to do is set or enforce state policy by lawsuit. But when those lawsuits are necessary — when duly elected or appointed officials don’t carry out their duties as the law or constitution requires — should we really have different legal and political standards of responsibility? Likewise, I want accountability to be imposed politically — by the voters — but if legal accountability also is appropriate, why should the governor get a bye?
In the case at hand, Children’s Rights and the South Carolina Appleseed Legal Justice Center sued DSS and Gov. Haley, saying the agency failed to provide 11 children with basic health care and the right kind of attention. The suit cites extraordinarily high caseloads and other problems that were documented in a Legislative Audit Council audit.
There’s plenty of room to debate whether this case belongs in federal court, whether any court ought to be involved in, as the department alleges, telling the agency how to do its job and telling the Legislature how to spend money.
And the plaintiffs already have a pretty high bar to prove that the director of an agency is legally responsible for the way an individual case was handled. But if that bar can be crossed, if the plaintiffs can prove that the agency director is legally responsible for the fate of those 11 children, it seems to me that they ought also to have the opportunity to try to prove that the governor who had the power to fire a director and chose not to do so also has legal liability.
It might be a different matter if we lived in a state where governors had real authority to administer the law. But given how limited our governor’s authority is — again, she has true control over only 15 agency directors — shouldn’t the onus be on the governor to demonstrate why she is not responsible when things go bad? If a court concludes that her agency director is responsible for children’s suffering, then shouldn’t a governor who wants to be dismissed from a case have to demonstrate that, say, her director had misled her?
And shouldn’t our Legislature consider amending state law so that could happen?
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571. Follow her on Twitter @CindiScoppe.