Cindi Ross Scoppe

Did South Carolina’s own ‘don’t ask, don’t tell’ law make the nuclear fiasco worse?

SC law barred Gov Henry McMaster from asking Leighton Lord to resign as chairman of Santee Cooper, although Mr Lord did eventually resign after the governor said he would fire him.
SC law barred Gov Henry McMaster from asking Leighton Lord to resign as chairman of Santee Cooper, although Mr Lord did eventually resign after the governor said he would fire him.

Before he decided to resign rather than be fired as Santee Cooper board chairman, Leighton Lord told me he would have been happy to resign if Gov. Henry McMaster had merely asked him, rather than announcing that he was removing Mr. Lord for cause.

I can understand why someone would prefer not to resign under those circumstances, which would leave the impression that he had broken the law. And I did wonder why the governor hadn’t tried that approach first. It’s true that Mr. Lord had been making the ridiculous claim that the only reason the governor was targeting him was because he supports the governor’s primary challenger — which sort of overlooks his role in that whole nuclear debacle thing. Still, the gentlemanly thing to do is to request a resignation first, and Mr. McMaster has always struck me as quite gentlemanly.

It turns out that the governor had a really good reason not to simply ask Mr. Lord to resign. It’s against the law.

Yes. You read that right.

Just when we think we have plumbed the depths of the Legislature’s power-crazy, governor-antagonistic disorder, we come upon S.C. Code Section 1-3-240(C)(1)(m). Which says, in pertinent part: “The Governor must not request a director of the South Carolina Public Service Authority to resign unless cause for removal, as established by this subsection, exists.”

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Cindi Ross Scoppe

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Now, that sounds like a violation of a governor’s constitutional right to free speech, and it might be. But generally our bosses can tell us what we can’t say in our official capacity as employees, so it might very well be constitutional to spell out things a governor — who is, after all, governor 24/7 — can’t say to state employees. Constitutional or not, it is the law, and it adds to the certainty that Santee Cooper board members have that they are untouchable. Which can cause real problems.

A governor could have alerted state utility regulators, who might have concluded that SCANA was not making prudent business decisions, and denied the rate increases they were otherwise obliged to approve.

Imagine for a moment that governors were free to fire Santee Cooper board members for any reason or no reason. It’s easy then to imagine that those board members would have alerted the governor when they found out that a company that SCANA hired had concluded that one of the big problems with the nuclear construction project was that SCANA was not doing its job. A governor could have alerted state utility regulators, who might have concluded that SCANA was not making prudent decisions, and denied the rate increases they were otherwise obliged to approve.

Senate Republican Leader Shane Massey indirectly brought this “don’t ask, don’t tell” law to my attention by introducing S.865, which eliminates that sentence. That allows a governor to say to someone he appoints to run a utility that is big enough to squander $4 billion: You know, after all those lousy decisions you made, it sure would be nice if you’d resign.

Now, Sen. Massey is not going so far as to actually let the governor fire the people he appoints to the Santee Cooper board just because they have nothing to show for their $4 billion investment. Or because they deserve some of the blame for running up SCE&G customers’ bills because they didn’t warn anyone about what was going on.

I can’t find a single bill that gives the governor the authority to fire his Santee Cooper appointees just because he thinks they’re exercising bad judgment.

No, even if Mr. Massey’s bill becomes law, the governor still would not be allowed to fire his appointees unless he could prove that they committed “malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity.” But it would at least be legal for him to ask them if they would be so kind as to consider stepping down. Pretty please.

What’s really distressing is that, out of all the bills that have been filed in the wake of the nuclear fiasco, I can’t find a single one that gives the governor the authority to fire his Santee Cooper appointees just because he thinks they’re exercising bad judgment. And please, someone, tell me I’ve overlooked it, that there is such a bill. That there are lots of such bills. That our lawmakers are not so insanely determined to keep power away from the governor that they still believe the people who have been running Santee Cooper deserve the union-like protections that we give to members of such super-sensitive boards as the State Ethics Commission and the State Elections Commission.

It is simply a slap at governors, which puts the Legislature’s animosity toward executive power ahead of anything approaching good government.

This isn’t even a case of the Legislature hoarding power. The Legislature doesn’t have the authority to remove Santee Cooper board members either, and I can’t find any legislation that proposes to give the Legislature that authority. It is simply a slap at governors, which puts the Legislature’s animosity toward executive power ahead of anything approaching good government.

In fairness, this sentence was added back in 2005, in a fit of anti-Mark Sanford rage that, while not justified on policy grounds, was certainly understandable to anyone who watched Mr. Sanford’s interactions with legislators. And most people who were legislators in 2005 are not legislators today.

But if the current Legislature is not willing to get rid of this law … well, then maybe we should just sell off Santee Cooper. Because that failure would demonstrate better than anything else lawmakers could do that they have no interest in making sure that our state-owned utility is accountable or responsible or well-run.

More information

Here are some other pieces I’ve written about this that you might find helpful:

SC nuclear debacle, by the numbers

SC nuclear debacle: a timeline

Here’s who voted to give SCE&G a blank check

You’re not going to stop paying nuclear surcharge, even if House bill becomes law

Why legislators shouldn’t be allowed to accept donations, jobs from utilities

Don’t be so sure SCE&G can pay for nuclear debacle without going bankrupt

What else we learned from that SCE&G bankruptcy report

Three ways the Dominion-SCE&G deal could fall apart

4 changes the Legislature needs to make after the $9 billion nuclear debacle

Is this the best deal SCE&G customers can get? Why finding out could cost us

Still want to run government like a business? That’s insane

Does it matter who’s in charge of SCANA?

Buying the benefit of the doubt: How donations secured SCE&G the means to squander billions.

Kapow! SCE&G punches back at Santee Cooper criticisms

How much worse was the original Bechtel nuclear report?

Where to hide nuclear secrets? Behind a lawyer, of course

Santee Cooper’s role in SC nuclear debacle looks worse by the day

Does anyone at Santee Cooper remember who Santee Cooper works for?

How ‘waste not, want not’ became ‘spend more, profit more’

SCE&G nuclear fiasco: It’s complicated. Here are some explanations.

SCE&G law could cost you more than you imagine

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.

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