Vol. 7, No. 3, No. 14. ETHICS REVISED: 1994 AMENDMENTS TO ETHICS REFORM ACTS OF 1991.

• Author: By William A. Coates

South Carolina Lawyer

1995.

Vol. 7, No. 3, No. 14.

ETHICS REVISED: 1994 AMENDMENTS TO ETHICS REFORM ACTS OF 1991

14ETHICS REVISED: 1994 AMENDMENTS TO ETHICS REFORM ACTS OF 1991By William A. CoatesOn January 1, 1992, a profound change took place in the relationship among South Carolina's public officials, public employees and those who do business with them. On that date, the Ethics, Government Accountability and Campaign Reform Act of 1991 (Act) became effective.

The Act is one of the most wide-ranging and extensive pieces of ethics legislation in the United States. It affects how political campaigns are financed, conducted and reported. It profoundly changes the relationship between the lobbyist and the lobbied. The Act also affects the representation of clients before all governmental entities, ranging from the governor's office to the zoning commission of the smallest town.

Public officials and employees were understandably concerned whether the casual acceptance of a meal or cup of coffee might cause them to violate the provisions of the Act.

The State Ethics Commission has issued hundreds of opinions regarding the provisions of the Act. After two years experience with the Act, the Commission made recommendations for legislative changes. In 1994, the General Assembly amended the Act and substantially incorporated the Commission's recommendations. This legislation became effective in January 1995. The amendments to the Act are of importance to lawyers who represent clients before any governmental entity, as well as to those who serve in public positions, whether as part-time members of a board or commission, as members of the legislature or as full-time government employees.

TRAVEL AND ENTERTAINMET

What constitutes acceptable travel and entertainment was high on the list of opinions requested of the Commission. Public officials and employees were understandably concerned whether the casual acceptance of a meal or cup of coffee might cause them to violate the provisions of the Act.

The Commission devoted a substantial number of opinions to this issue and, in doing so, was required to promulgate its own definitions for certain terms left undefined in the Act. In 1994, the

15 General Assembly adopted the Commission's definition of "official capacity," by amending § 2-17-10 and § 8-13-100. The term is now statutorily defined as activities which:

(a) arise because of the position held by the public official or public employee; (b) involve matters which fall within the official responsibility of the agency, the public official, or the public employee; and (c) are services the agency would normally provide and for which the public official or public employee would be subject to expense reimbursement by the agency with which the public official or employee is associated.

A definition of "official capacity" is necessary in order to interpret § 8-13-715. This section prohibits public officials, public members or public employees from receiving "anything of value" for speaking before a public or private group if acting in their "official capacity."

In one of its earliest opinions (92-023), the Commission determined that the acceptance of a contemporaneous meal by a speaker at a meeting should not be considered compensation for speaking. The Commission's view was accepted by the General Assembly when it amended § 2-17100 and § 8-13-715 by induding the Commission's language. While prohibiting honoraria for speaking in an official capacity, these two sections do allow reimbursement for actual expenses incurred during a speaking engagement.

The 1994...