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Law to Initiate or Receive Complaints 

 

SECTION 8-13-310.   State Ethics Commission reconstituted; members; terms of office; officers; quorum requirements; meetings; per diem, mileage, and subsistence for members.

(A) The State Ethics Commission as constituted under law in effect before July 1, 1992, is reconstituted to continue in existence with the appointment and qualification of the at-large members as prescribed in this section and with the changes in duties and powers as prescribed in this chapter. On July 1, 1993, when the duties and powers given to the Secretary of State in Chapter 17 of Title 2 are transferred to the State Ethics Commission, the Code Commissioner is directed to change all references to "this chapter" in Article 3 of Chapter 13 of Title 8 to "this chapter and Chapter 17 of Title 2".

(B) There is created the State Ethics Commission composed of nine members appointed by the Governor, upon the advice and consent of the General Assembly. One member shall represent each of the six congressional districts, and three members must be appointed from the State at large. No member of the General Assembly or other public official shall be eligible to serve on the State Ethics Commission. The Governor shall make the appointments based on merit regardless of race, color, creed, or gender and shall strive to assure that the membership of the commission is representative of all citizens of the State of South Carolina.

(C) The terms of the members are for five years and until their successors are appointed and qualify. The members of the State Ethics Commission serving on this chapter's effective date may continue to serve until the expiration of their terms. These members may then be appointed to serve one full five-year term under the provisions of this chapter. Members representing the first, third, and sixth congressional districts on this chapter's effective date are eligible to be appointed for a full five-year term in or after 1991. Members currently representing the second, fourth, and fifth congressional districts on this chapter's effective date are eligible to be appointed for a full five-year term in or after 1993. The initial appointments for the at-large members of the commission created by this chapter must be for a one-, two-, or three-year term, but these at-large members are eligible subsequently for a full five-year term. Under this section, the at-large members of the commission are to be appointed to begin service on or after July 1, 1992. Vacancies must be filled in the manner of the original appointment for the unexpired portion of the term only. Members of the commission who have completed a full five-year term are not eligible for reappointment.

(D) The commission shall elect a chairman, a vice-chairman, and such other officers as it considers necessary. Five members of the commission shall constitute a quorum. The commission must adopt a policy concerning the attendance of its members at commission meetings. The commission meets at the call of the chairman or a majority of its members. Members of the commission, while serving on business of the commission, receive per diem, mileage, and subsistence as is provided by law for members of state boards, committees, and commissions.

   

SECTION 8-13-320.   Duties and powers of State Ethics Commission.

The State Ethics Commission has these duties and powers:

(1) to prescribe forms for statements required to be filed by this chapter and to furnish these forms to persons required to file them;

(2) to prepare and publish a manual setting forth recommended uniform methods of reporting for use by persons required to file statements required by this chapter;

(3) to accept and file information voluntarily supplied that exceeds the requirements of this chapter;

(4) to develop a filing, coding, and cross-indexing system consonant with the purposes of this chapter;

(5) to make the notices of registration and reports filed available for public inspection and copying as soon as may be practicable after receipt of them and to permit copying of a report or statement by hand or by duplicating machine, as requested by a person, at the expense of the person;

(6) to preserve the originals or copies of notices and reports for four years from date of receipt;

(7) to ascertain whether a person has failed to comply fully and accurately with the disclosure requirements of this chapter and promptly to notify the person to file the necessary notices and reports to satisfy the requirements of this chapter or regulations promulgated by the commission under this chapter;

(8) to request the Attorney General, in the name of the commission, to initiate, prosecute, defend, or appear in a civil or criminal action for the purpose of enforcing the provisions of this chapter, including a civil proceeding for injunctive relief and presentation to a grand jury;

(9) to initiate or receive complaints and make investigations, as provided in item (10), of statements filed or allegedly failed to be filed under the provisions of this chapter and Chapter 17 of Title 2 and, upon complaint by an individual, of an alleged violation of this chapter or Chapter 17 of Title 2 by a public official, public member, or public employee except members of or candidates for the General Assembly unless otherwise provided for under House or Senate rules. Any person charged with a violation of this chapter or Chapter 17 of Title 2 is entitled to the administrative hearing process contained in this section.

(a) The commission may commence an investigation on the filing of a complaint by an individual or by the commission, as provided in item (10)(d), upon a majority vote of the total membership of the commission.

(b)(1) No complaint may be accepted by the commission concerning a candidate for elective office during the fifty-day period before an election in which he is a candidate. During this fifty-day period, any person may petition the court of common pleas alleging the violations complained of and praying for appropriate relief by way of mandamus or injunction, or both. Within ten days, a rule to show cause hearing must be held, and the court must either dismiss the petition or direct that a mandamus order or an injunction, or both, be issued. A violation of this chapter by a candidate during this fifty-day period must be considered to be an irreparable injury for which no adequate remedy at law exists. The institution of an action for injunctive relief does not relieve any party to the proceeding from any penalty prescribed for violations of this chapter. The court must award reasonable attorneys fees and costs to the nonpetitioning party if a petition for mandamus or injunctive relief is dismissed based upon a finding that the:

(i) petition is being presented for an improper purpose such as harassment or to cause delay;

(ii) claims, defenses, and other legal contentions are not warranted by existing law or are based upon a frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and

(iii) allegations and other factual contentions do not have evidentiary support or, if specifically so identified, are not likely to have evidentiary support after reasonable opportunity for further investigation or discovery.

(2) Action on a complaint filed against a candidate which was received more than fifty days before the election but which cannot be disposed of or dismissed by the commission at least thirty days before the election must be postponed until after the election.

(c) If an alleged violation is found to be groundless by the commission, the entire matter must be stricken from public record. If the commission finds that the complaining party wilfully filed a groundless complaint, the finding must be reported to the Attorney General. The wilful filing of a groundless complaint is a misdemeanor and, upon conviction, a person must be fined not more than one thousand dollars or imprisoned not more than one year. In lieu of the criminal penalty provided by this item, a civil penalty of not more than one thousand dollars may be assessed against the complainant upon proof, by a preponderance of the evidence, that the filing of the complaint was wilful and without just cause or with malice.

(d) Action may not be taken on a complaint filed more than four years after the violation is alleged to have occurred unless a person, by fraud or other device, prevents discovery of the violation. The Attorney General may initiate an action to recover a fee, compensation, gift, or profit received by a person as a result of a violation of the chapter no later than one year after a determination by the commission that a violation of this chapter has occurred;

(10) to conduct its investigations, inquiries, and hearings in this manner:

(a) The commission shall accept from an individual, whether personally or on behalf of an organization or governmental body, a verified complaint, in writing, that states the name of a person alleged to have committed a violation of this chapter and the particulars of the violation. The commission shall forward a copy of the complaint, a general statement of the applicable law with respect to the complaint, and a statement explaining the due process rights of the respondent including, but not limited to, the right to counsel to the respondent within ten days of the filing of the complaint.

(b) If the commission or its executive director determines that the complaint does not allege facts sufficient to constitute a violation, the commission must dismiss the complaint and notify the complainant and respondent. The entire matter must be stricken from public record unless the respondent, by written authorization to the State Ethics Commission, waives the confidentiality of the existence of the complaint and authorizes the release of information about the disposition of the complaint.

(c) If the commission or its executive director determines that the complaint alleges facts sufficient to constitute a violation, an investigation may be conducted of the alleged violation.

(d) If the commission, upon the receipt of any information, finds probable cause to believe that a violation of the chapter has occurred, it may, upon its own motion and an affirmative vote of the majority of the total membership of the commission, file a verified complaint, in writing, that states the name of the person alleged to have committed a violation of this chapter and the particulars of the violation. The commission shall forward a copy of the complaint, a general statement of the applicable law with respect to the complaint, and a statement explaining the due process rights of the respondent including, but not limited to, the right to counsel to the respondent within ten days of the filing of the complaint.

(e) If the commission determines that assistance is needed in conducting an investigation, the commission shall request the assistance of appropriate agencies.

(f) The commission may order testimony to be taken in any investigation or hearing by deposition before a person who is designated by the commission and has the power to administer oaths and, in these instances, to compel testimony. The commission may administer oaths and affirmation for the testimony of witnesses and issue subpoenas by approval of the chairman, subject to judicial enforcement, and issue subpoenas for the procurement of witnesses and materials including books, papers, records, documents, or other tangible objects relevant to the agency's investigation by approval of the chairman, subject to judicial enforcement. A person to whom a subpoena has been issued may move before a commission panel or the commission for an order quashing a subpoena issued under this section.

(g) All investigations, inquiries, hearings, and accompanying documents must remain confidential until final disposition of a matter unless the respondent waives the right to confidentiality. The wilful release of confidential information is a misdemeanor, and any person releasing such confidential information, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than one year.

(h) The commission must afford a public official, public member, public employee, lobbyist, or lobbyist's principal who is the subject of a complaint the opportunity to be heard on the alleged violation under oath, the opportunity to offer information, and the appropriate due process rights including, but not limited to, the right to counsel. The commission, in its discretion, may turn over to the Attorney General for prosecution apparent evidence of a violation of the chapter.

(i) At the conclusion of its investigation, the commission staff, in a preliminary written decision with findings of fact and conclusions of law, must make a recommendation whether probable cause exists to believe that a violation of this chapter has occurred. If the commission determines that probable cause does not exist, it shall send a written decision with findings of fact and conclusions of law to the respondent and the complainant. If the commission determines that there is probable cause to believe that a violation has been committed, its preliminary decision may contain an order setting forth a date for a hearing before a panel of three commissioners, selected at random, to determine whether a violation of the chapter has occurred. If the commission finds probable cause to believe that a violation of this chapter has occurred, the commission may waive further proceedings if the respondent takes action to remedy or correct the alleged violation.

(j) If a hearing is to be held, the respondent must be allowed to examine and make copies of all evidence in the commission's possession relating to the charges. The same discovery techniques which are available to the commission must be equally available to the respondent, including the right to request the commission to subpoena witnesses or materials and the right to conduct depositions as prescribed by subitem (f). A panel of three commissioners must conduct a hearing in accordance with Chapter 23 of Title 1 (Administrative Procedures Act), except as otherwise expressly provided. Panel action requires the participation of the three panel members. During a commission panel hearing conducted to determine whether a violation of the chapter has occurred, the respondent must be afforded appropriate due process protections, including the right to be represented by counsel, the right to call and examine witnesses, the right to introduce exhibits, and the right to cross-examine opposing witnesses. All evidence, including records the commission considers, must be offered fully and made a part of the record in the proceedings. The hearings must be held in executive session unless the respondent requests an open hearing.

(k) No later than sixty days after the conclusion of a hearing to determine whether a violation of the chapter has occurred, the commission panel must set forth its determination in a written decision with findings of fact and conclusions of law. The commission panel, where appropriate, shall recommend disciplinary or administrative action, or in the case of an alleged criminal violation, refer the matter to the Attorney General for appropriate action. The Attorney General may seek injunctive relief or may take other appropriate action as necessary. In the case of a public employee, the commission panel shall file a report to the administrative department executive responsible for the activities of the employee. If the complaint is filed against an administrative department executive, the commission panel shall refer the case to the Governor.

(l) The written decision as provided for in subitem (k) may set forth an order:

(i) requiring the public official, public member, or public employee to pay a civil penalty of not more than two thousand dollars for each violation;

(ii) requiring the forfeiture of gifts, receipts, or profits, or the value thereof, obtained in violation of the chapter, voiding nonlegislative state action obtained in violation of the chapter; or

(iii) requiring a combination of subitems (i) and (ii) above, as necessary and appropriate.

(m) Within ten days after service of an order, report, or recommendation, a respondent may apply to the commission for a full commission review of the decision made by the commission panel. The review must be made on the record established in the panel hearings. This review is the final disposition of the complaint before the commission. An appeal to the circuit court, pursuant to Section 1-23-380, stays all actions and recommendations of the commission unless otherwise determined by the circuit court.

(n) A fine imposed by the commission, disciplinary action taken by an appropriate authority, or a determination not to take disciplinary action made by an appropriate authority is public record. This section does not limit the power of either chamber of the General Assembly to impeach a public official or limit the power of a department to discipline its own officials or employees. This section does not preclude prosecution of public officials, public members, or public employees for violation of any law of this State.

(o) All actions taken by the commission on complaints, except on alleged violations which are found to be groundless by the commission, are a matter of public record upon final disposition;

(11) to issue, upon request from persons covered by this chapter, and publish advisory opinions on the requirements of this chapter, based on real or hypothetical sets of circumstances; provided, that an opinion rendered by the commission, until amended or revoked, is binding on the commission in any subsequent charges concerning the person who requested the opinion and who acted in reliance on it in good faith unless material facts were omitted or misstated by the person in the request for the opinion. Advisory opinions must be in writing and are considered rendered when approved by five or more commission members subscribing to the advisory opinion. Advisory opinions must be made available to the public unless the commission, by majority vote of the total membership of the commission, requires an opinion to remain confidential. However, the identities of the parties involved must be withheld upon request;

(12) to promulgate and publish rules and regulations to carry out the provisions of this chapter. Provided, that with respect to complaints, investigations, and hearings the rights of due process as expressed in the Rules Governing the Practice of Law must be followed;

(13) on and after July 1, 1993, to administer Chapter 17 of Title 2 by use of the duties and powers listed in this section;

(14) to file, in the court of common pleas of the county in which the respondent of a complaint resides, a certified copy of an order or decision of the commission, whereupon the court must render judgment in accordance with the order or decision without charge to the commission and must notify the respondent of the judgment imposed. The judgment has the same effect as though it had been rendered in a case duly heard and determined by the court.

   

SECTION 8-13-325.   Commission to retain fees.

In order to offset costs associated with the: (1) administration and regulation of lobbyists and lobbyist's principals, and (2) enforcement of Chapter 17 of Title 2, the State Ethics Commission shall retain fees generated by the registration of lobbyists and lobbyists' principals and the initial fine of one hundred dollars, as provided in Section 2-17-50(A)(2)(a), and the initial fine of one hundred dollars, as provided in Section 8-13-1510(1), for reports received by the State Ethics Commission.

  

SECTION 8-13-330.   Executive director of commission; restrictions on political activities of members, employees and staff of commission.

(A) The commission may employ and remove, at its pleasure, an executive director. The executive director has the responsibility for employing and terminating other personnel as may be necessary. The executive director administers the daily business of the commission and performs duties assigned by the commission.

(B) No member or employee of the commission may be a candidate, an official in a political party, or a lobbyist. Other than by virtue of membership on or employment with the State Ethics Commission, no member or employee of the commission may be a public official, public member, or public employee.

(C) No member of the commission or its staff may participate in political management or in a political campaign during the member's or employee's term of office or employment. No member of the commission or its staff may make a contribution to a candidate or knowingly attend a fundraiser held for the benefit of a candidate. Violation of this provision subjects the employee to immediate dismissal and the commissioner to removal by the Governor.

    

SECTION 8-13-340.   Annual report of commission.

The State Ethics Commission at the close of each fiscal year shall report to the General Assembly and the Governor concerning the action it has taken, the names, salaries, and duties of all persons in its employ, and the money it has disbursed and shall make other reports on matters within its jurisdiction and recommendations for further legislation as may appear desirable.

   

SECTION 8-13-350.   Ethics brochure to be provided to public officials, members, and employees.

When hired, filing for office, or appointed and upon assuming the duties of employment, office, or position in state government, a public official, public member, and public employee shall receive a brochure prepared by the State Ethics Commission describing the general application of this chapter.

   

SECTION 8-13-360.   Statements and reports filed with commission open for public inspection and copying.

Upon request, the commission shall make statements and reports filed with the commission available for public inspection and copying during regular office hours. The commission shall provide copying facilities at a cost not to exceed the actual cost. A statement may be requested by mail, and the commission shall mail a copy of the requested information to the individual making the request upon payment of appropriate postage, copying costs, and employee labor costs. The commission shall publish and make available to the public and to persons subject to this chapter explanatory information concerning this chapter, the duties imposed by this chapter, and the means for enforcing this chapter.

    

SECTION 8-13-365.   Electronic filing system for campaign disclosures and reports; public accessibility.

(A) The commission must establish a system of electronic filing for all disclosures and reports required pursuant to Article 13 of Chapter 13 of Title 8 from all candidates and entities subject to its jurisdiction. These disclosures and reports for candidates and committees for statewide offices must be filed using an Internet-based filing system as prescribed by the commission. Reports and disclosures filed with the Ethics Committees of the Senate and House of Representatives for legislative offices must be in a format such that these filings can be forwarded to the State Ethics Commission using an Internet-based system. The information contained in the campaign disclosure form, with the exception of social security numbers, campaign bank account numbers, and tax ID numbers, must be publicly accessible, searchable, and transferable.

(B) The Ethics Commission must submit to the General Assembly a report no later than one year after implementation of subsection (A), concerning the effectiveness of mandatory electronic filing, and must make recommendations as to the implementation of mandatory filing for all other candidates and entities.