Cindi Ross Scoppe

Scoppe: SC House Ethics Committee had no choice but to make Bobby Harrell pay his attorney fees

Former SC House Speaker Bobby Harrell is joined by attorney Bart Daniel as he pleads guilty to six counts of use of campaign funds for personal expenses. The House Ethics Committee says Mr. Harrell had no right to use campaign funds to pay Mr. Daniel and another lawyer to defend him.
Former SC House Speaker Bobby Harrell is joined by attorney Bart Daniel as he pleads guilty to six counts of use of campaign funds for personal expenses. The House Ethics Committee says Mr. Harrell had no right to use campaign funds to pay Mr. Daniel and another lawyer to defend him. gmelendez@thestate.com

I WISH I COULD say that the House Ethics Committee’s unanimous decision to order former Speaker Bobby Harrell to repay more than $113,000 in campaign funds he used to pay his criminal defense attorneys marked a bold new direction for the panel. I can’t.

I wish I could say it showed we don’t need to fix the law that’s supposed to but does not prevent politicians from using campaign funds for personal expenses — like, say, paying their criminal defense attorneys. I can’t say that either.

The Ethics Committee’s action was based on its own nuanced interpretation of the law, and that interpretation is not shared by the State Ethics Commission, which thought it was just peachy for then-Gov. Mark Sanford to use campaign funds to pay his attorneys for their unsuccessful defense of his violation of another section of the ethics law. Nor has the Senate Ethics Committee indicated that it shares the House interpretation. For that matter, the House panel could reverse its interpretation if it wanted to.

So the law still needs changing, to make it clear that among the “personal expenses” that officials cannot cover with money that individuals and special interests give to their campaigns are legal fees to defend against charges of violating the ethics law.

Was misspending campaign funds really part of Bobby Harrell’s ‘duties as a holder of elective office’?

As for the committee itself, since Mr. Harrell has pleaded guilty to corruption charges, resigned from the House and lost the power he had a year ago to punish anyone who tried to punish him, ordering him to obey the law does not prove that the committee has grown a spine. It might have, but this does not prove it.

The fact is that you’d be hard pressed to call any of the targets of the House or Senate Ethics committee powerful. Most have been Democrats, who are in the distinct minority. In the past year, the Senate committee has taken action against two Democratic House members, who violated the law during unsuccessful Senate campaigns.

Rather than passing a test, what the House Ethics Committee did was fail to fail a test. That’s much better than failing the test, and given how seriously legislators have taken their self-policing role over the years, it’s a good and important thing. It’s particularly encouraging that it was a unanimous vote.

But the committee really had no choice. In a 2013 advisory opinion that said legislators could sometimes use campaign funds to pay attorney fees, the committee cautioned that “this holding does not reach lawsuits resulting from a candidate’s personal misconduct.”

House Advisory Opinion 2013-2

There’s no way to square that opinion with Mr. Harrell’s use of campaign funds to pay two attorneys to defend him and then negotiate a deal for him to plead guilty to using his campaign account for personal expenses.

The idea that this is legal is based on a section of state law that says campaign accounts may be used “to defray any ordinary expenses incurred in connection with an individual’s duties as a holder of elective office.” So winking at Mr. Harrell’s actions would say that violating the law was part of the “duties as a holder of elective office.”

Former SC House speaker ordered to pay state $113,475

House Ethics Chairman Kenny Bingham told me that he had met with Mr. Harrell when the committee drafted that opinion back in 2013, before anyone had any reason to believe that Mr. Harrell would become subject to it, so he was well-aware of it. Then last fall, when the committee learned that the speaker was using his campaign account to pay his attorneys, the committee contacted those attorneys to tell them about the 2013 opinion.

Under Mr. Bingham’s understanding of the opinion, it would have been fine for Mr. Harrell to pay his attorneys with campaign funds if he had been found not guilty, because he would have been fighting off an unwarranted attack that would not have been made had he not been a House member.

Mr. Harrell was still indignantly insisting he was innocent when his attorney fees came to light, so there was no clear violation of the law at that point.

All that changed in October, when Mr. Harrell pleaded guilty in a deal that allowed him to avoid prison.

But some things never change. Today, Mr. Harrell is still indignant — this time insisting that the House panel did him wrong last week. There was no due process, he protested. He wasn’t notified of the hearing, he insisted.

Well, I suppose it depends on what your definition of “is” is.

An attorney for the committee contacted Harrell attorney Bart Daniel in July to get his response to the suggestion that he had used his campaign funds inappropriately. Mr. Daniel responded that Mr. Harrell had been advised by his attorneys that this was an appropriate expenditure. The attorney checked back later in the month to make sure that was the formal answer; it was.

As for last week’s meeting, there wasn’t actually a hearing. It was simply a meeting, where the committee did what it does routinely: agree to send a letter telling someone he had spent campaign funds inappropriately and giving him 30 days to clear that up.

If Mr. Harrell refuses to comply, the committee can bring a complaint, and there will be a hearing, with notification and all the due process he could want. Then he will get to do his spinning under oath, where there are consequences, rather than in the media, where he does so with impunity.

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

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What took so long?

House Speaker Bobby Harrell pleaded guilty to six corruption charges on Oct. 23, but it took more than 10 months for the House Ethics Committee to demand that he repay his attorney fees. Why the delay?

The Legislature was out of session at the time, the House was in turmoil, and the post-election House would elect a new Ethics Committee in December, so the committee didn’t want to act. Ethics Chairman Kenny Bingham said the panel spent the first three months of this year rewriting its procedures and hiring independent staff (the staff used to report to the speaker).

The committee had to wait four more months before the courts gave it access to the full report of the SLED investigation of Mr. Harrell, which it received in early August.

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