2018 South Carolina Code of Laws
Title 8 - Public Officers and Employees
CHAPTER 13 - ETHICS, GOVERNMENT ACCOUNTABILITY, AND CAMPAIGN REFORM
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), or as provided in Section 8-13-540, as appropriate, of statements filed or allegedly failed to be filed under the provisions of this chapter and Chapter 17, Title 2 and, upon complaint by an individual, of an alleged violation of this chapter or Chapter 17, Title 2 by a public official, public member, or public employee. Any person charged with a violation of this chapter or Chapter 17, Title 2 is entitled to the administrative hearing process contained in this section or in Article 5 of this chapter, as appropriate.
(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 attorney's 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. In addition to any civil or criminal penalties, the filer of the groundless complaint may be ordered to reimburse the commission for the commission's costs associated with the investigation and disposition of the complaint.
(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, its executive director, or staff designated by the commission, 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, its executive director, or staff designated by the commission 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 six or more members 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 are confidential and only may be released pursuant to this section.
(i) After a dismissal following a finding of probable cause, except for dismissal pursuant to item (10)(b), or a technical violation pursuant to Section 8-13-1170 or 8-13-1372, the following documents become public record: the complaint, the response by the respondent, and the notice of dismissal.
(ii) After a finding of probable cause, except for a technical violation pursuant to Section 8-13-1170 or 8-13-1372, the following documents become public record: the complaint, the response by the respondent, and the notice of hearing. If a hearing is held on the matter, the final order and all exhibits introduced at the hearing shall become public record upon issuance of the final order by the commission. Exhibits introduced must be redacted prior to release to exclude personal information where the public disclosure would constitute an unreasonable invasion of personal privacy. In the event a hearing is not held on a matter after a finding of probable cause, the final disposition of the matter becomes public record.
The respondent or his counsel, by written notice, may waive the confidentiality requirement. The commission shall not accept any partial waivers. The wilful release of confidential information is a misdemeanor, and a 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, by an affirmative vote of six or more commission members, 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, by an affirmative vote of six or more commission members, 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. Probable cause is a finding that the allegations contained in the complaint are more likely than not to have occurred and constitute a violation of this chapter or Chapter 17, Title 2.
(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, 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 open to the public.
(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 court of appeals, pursuant to Section 1-23-380 and as provided in the South Carolina Appellate Court Rules, stays all actions and recommendations of the commission unless otherwise determined by the 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)(a) The commission may issue a formal advisory opinion, based on real or hypothetical sets of circumstances. In considering and formulating an advisory opinion, the commission shall consider its previous opinions as well as relevant opinions issued by either legislative ethics committee in an attempt to create uniformity among the bodies. A formal advisory opinion issued by the commission is binding on the commission, until amended or revoked, in any subsequent charges concerning the person who requested the formal opinion and any other person who acted in reliance upon it in good faith, unless material facts were omitted or misstated by the person in the request for the opinion. A formal advisory opinion must be in writing and is considered rendered when approved by a majority of the 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.
(b) The commission only may issue formal advisory opinions for public officials, public members, and public employees for which it has proper jurisdiction to make findings of fact and impose penalties pursuant to this chapter.
(c) The commission must consider whether a person relied in good faith upon a formal advisory opinion or written informal staff opinion when considering a determination of probable cause and when considering a finding of misconduct.
(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.
HISTORY: 1991 Act No. 248, Section 3, eff January 1, 1992 and governs only transactions which take place after December 31, 1991; 1993 Act No. 184, Sections 146, 147, eff January 1, 1994; 1995 Act No. 6, Sections 18, 19, effective upon approval (became law without the Governor's signature January 12, 1995) and applies only to transactions occurring on or after January 1, 1995; 2003 Act No. 76, Sections 12 to 14, eff June 26, 2003; 2006 Act No. 387, Section 8, eff July 1, 2006; 2008 Act No. 245, Section 2, eff May 29, 2008; 2011 Act No. 1, Section 1, eff January 19, 2011; 2016 Act No. 282 (H.3184), Sections 3-10, eff April 1, 2017.
2006 Act No. 387, Section 53, provides as follows:
"This act is intended to provide a uniform procedure for contested cases and appeals from administrative agencies and to the extent that a provision of this act conflicts with an existing statute or regulation, the provisions of this act are controlling."
2016 Act No. 282, Section 17, provides as follows:
"SECTION 17. The provisions of this act are effective as of April 1, 2017 and shall apply to complaints filed on or after April 1, 2017. However, the provisions in Section 8-13-310 regarding the selection of the initial members to serve on the State Ethics Commission as of April 1, 2017, and the termination of terms of the members serving on the commission as of March 31, 2017, take effect after the date of the Governor's signature for the limited purpose of having the initial members of the reconstituted State Ethics Commission begin service on April 1, 2017. The State Ethics Commission, House Ethics Committee and Senate Ethics Committee shall maintain jurisdiction over all open complaints and investigations pending in the appropriate entity on or before March 31, 2017. The reconstituted State Ethics Commission shall have jurisdiction over open complaints and investigations pending within the State Ethics Commission as of March 31, 2017."