SC Lawyer, Nov. 2003, #7. The State Ethics Act what you need to know a decade later.

AuthorBy Deborah A. Hottel and J. Michael Ey

South Carolina Lawyer

2003.

SC Lawyer, Nov. 2003, #7.

The State Ethics Act what you need to know a decade later

South Carolina LawyerNov. 2003The State Ethics Act what you need to know a decade laterBy Deborah A. Hottel and J. Michael EyRemember Operation Lost Trust?

It was the "sting" operated by the FBI in 1990 that resulted in the indictment and conviction of several public officials.

In response to Operation Lost Trust, the General Assembly enacted the Ethics, Government Accountability, and Campaign Reform Act of 1991 (the Act). 1991 S.C. Act No. 248. The Act prescribed a comprehensive set of rules for lobbying, the ethical conduct of public officials and campaign practices. The General Assembly has revisited the Act on two occasions. In 1994 the General Assembly addressed certain problems that arose with the initial implementation of the Act. 1995 S.C. Act No. 6. In this year's session, the General Assembly amended a number of provisions primarily aimed at campaign finance practices. 2003 S.C. Act No. 76. In both instances the fundamental aspects of the Act remained intact. South Carolina continues to have one of the most stringent ethics laws in the nation. Those who practice in this area will attest that the Act has developed into its own practice area, as specialized as any other area of law.

This article is intended to give practicing attorneys, particularly those who do not frequently visit the area, some practical pointers in the event their clients are faced with an ethics issue. While hopefully this information is helpful, it represents but a cursory review of the major provisions of the Act. If you have an ethics issue arise, you should refer to the South Carolina Code of Laws and the many advisory opinions issued by the State Ethics Commis-sion (the Commission) and the House and Senate ethics committees.

First, among the general pointers is that the Act is "definition intensive." Reference to the definition sections of the Act is essential when using it.

Second, the Commission, the House of Representatives Legislative Ethics Committee and the Senate Legislative Ethics Committee, as the state governmental entities responsible for the administration and enforcement of the Act, have collectively issued several hundred advisory opinions. Formal advisory opinions of the Commission may be found on the Commision's Web site at www. state. sc.us/ethics/index. htm. Additional opinions on the lobbying provisions were issued by the Secretary of State prior to the transfer of lobbying oversight to the Commission in 1993, and, although not on the Commission's Web site, they are useful in gaining a better understanding of the lobbying provisions.

Third, the Act's restrictions apply to both sides of the fence. It is not just the public official or employee who can be found in violation of the Act - it can also be the person who by his action brings about the violation.

Finally, penalties for violation of the Act vary; some can result in misdemeanor or felony charges while others can result in monetary penalties imposed by the Commission. Adhering to the Act's requirements and restrictions will avoid these sanctions.

To lobby or not to lobby

An often overlooked option for resolving a client's problem is the legislative solution. In many instances amending a law or a regulation is the best way to address a client's issue. Let's assume you and your client conclude that the solution to the client's problem is a legislative one. Before you and your client start calling legislators, you should review the lobbying provisions of the Act. S.C. Code Ann. §§ 2-17-5 to -150 (Supp. 2002), as amended by 2003 S.C. Act No. 76.

You are "lobbying" when you are "promoting or opposing through direct communication with public officials or public employees" the introduction or enactment of legislation; actions of the Governor related to approval of legislation, executive orders, appointments and the award of grants; and the promulgation of regulations by agencies. S.C. Code Ann. § 2-17-10(12) (Supp. 2002). A "lobbyist" is defined as the person who is employed or retained to engage in the communication with public officials or public employees. Section 2-17-10(13). Various exceptions are made to the definition of "lobbyist" including persons appearing in public settings such as at a public hearing and persons "performing professional services in drafting legislation or in advising and rendering opinions to clients as to the construction and effect of proposed or pending legislation." Section 2-17-10(13). A "lobbyist's principal" is the person who employs or retains a lobbyist to engage in lobbying. Section 2-17-10(14).

Another way in which you could find yourself involved in an ethics issue is if you or your client inadvertently lobby an agency official or employee. The lobbying provisions include someone who attempts to influence the promulgation of a regulation. Section 2-17-10(2). For example, you and your client attend a DHEC public hearing on a proposed regulation. You present comments in support of the proposed regulation at...

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