South Carolina Legislature


Rule 44.

Ethics Committee Duties

        Rules 44, 44.1 and 44.2 from the previous session shall remain in effect until March 31, 2017. Rules 44, 44.1 and 44.2 as contained herein are effective on April 1, 2017 and thereafter.

A.

        In the Senate there shall be a Committee on Ethics, consisting of ten (10) members. The committee has the following powers and duties:

        (1)     ascertain whether a person has failed to comply fully and accurately with the disclosure requirements of Chapter 13, Title 8, which may include, but is not limited to, an audit of filed reports and applicable campaign bank statements, and to promptly notify the person to file the necessary notices and reports to satisfy these requirements;

        (2)     receive complaints filed by individuals and, upon a majority vote of the total membership of the committee, file complaints when alleged violations are identified;

        (3)     upon the filing of a complaint alleging a violation by a Senate member or staff, or a member or staff of a legislative caucus committee, or a Senate candidate, for a violation of Chapter 13, Title 8 or Chapter 17, Title 2, other than a violation of a rule of the appropriate house, the ethics committee shall refer the complaint to the State Ethics Commission for an investigation pursuant to Section 813540;

        (4)     receive, investigate, and hear a complaint which alleges a possible violation of a breach of a privilege or a rule governing a Senate member or staff or legislative caucus committee, or Senate candidate;

        (5)     a complaint may not be accepted by the ethics committee concerning a Senate member or candidate during the fiftyday period before an election in which the member or candidate is a candidate. During this fiftyday 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 Chapter 13, Title 8 by a candidate during this fiftyday 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 Chapter 13, Title 8. 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:

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

            (b)     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

            (c)     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.

        Action on a complaint filed against a Senate member or candidate which was received more than fifty days before the election but which cannot be disposed of or dismissed by the ethics committee at least thirty days before the election must be postponed until after the election;

        (6)     obtain information, investigate technical violation complaints, and hear complaints as provided in Section 813540 with respect to any complaint filed pursuant to Chapter 13, Title 8 or Chapter 17, Title 2 and to that end may compel by subpoena issued by a majority vote of the committee the attendance and testimony of witnesses and the production of pertinent books and papers;

        (7)     administer or recommend sanctions appropriate to a particular Senate member or staff, or candidate for Senate, pursuant to Section 813540, including the recovery of the value of anything transferred or received in breach of the ethical standards, or dismiss the charges; and

        (8)     act as an advisory body to the Senate and to individual Senate members or candidates on questions pertaining to the disclosure and filing requirements of Senate members or candidates, and may issue, upon request from a Senate member or staff, or legislative caucus committee, or Senate candidate, and publish advisory opinions on the requirements of Chapter 13, Title 8 and Chapter 17, Title 2.”

        (9)     levy an enforcement or administrative fee on a person who is found in violation, or who admits to a violation, pursuant to Title 2 or Title 8. The fee must be used to reimburse the ethics committee for costs associated with the investigation and hearing of a violation as provided in Section 813130. These fees and costs are in addition to any fines as otherwise provided by law.

        (10)     To recommend any rule or statutory change relating to ethics as the committee deems appropriate.

B.

        All papers, documents, complaints, charges, requests for advisory opinions, and any other material filed with or received by the committee shall be strictly confidential prior to a finding of probable cause, or a waiver of confidentiality by the respondent. No persons involved with a complaint, including complainant, respondent, counsel, counsel’s secretaries, committee members and staff, and investigators shall mention the existence of any such proceeding nor disclose any information pertaining thereto, unless otherwise permitted by the Rules. Disclosure of confidential information must be punished in a manner provided by the Ethics, Government Accountability, and Campaign Reform Act. If the Senate Ethics Committee finds that a person has violated the provisions of this item, it must report its findings to the Attorney General.

C.
Formal Advisory Opinions

    (1)     The ethics committee may issue a formal advisory opinion based on real or hypothetical sets of circumstances. In considering and formulating an advisory opinion the ethics committee shall consider its previous opinions, the relevant opinions of the House Ethics Committee, as well as relevant opinions issued by the commission in an attempt to create uniformity among the bodies. A formal advisory opinion issued by the ethics committee is binding on the committee, 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 ethics committee members subscribing to the advisory opinion. Advisory opinions must be made available to the public unless the committee, by majority vote of the total membership of the committee, requires an opinion to remain confidential. However, the identities of the parties involved must be withheld upon request.

    (2)     The ethics committee only may issue formal advisory opinions for Senate members, staff and legislative caucus committees for which it has proper jurisdiction to make findings of fact and impose penalties pursuant to Chapter 13, Title 8.

    (3)     The ethics committee must consider whether a person relied in good faith upon a formal advisory opinion or written informal staff opinion when considering a finding of misconduct.

Rule 44.1.
Ethics Committee Procedures
A.
Complaint

        (A)(1)     A complaint alleging a member of the Senate, legislative caucus committees, candidates for the Senate, or staff of the Senate or legislative caucus committee has committed a violation of Chapter 13, Title 8 or Chapter 17, Title 2 must be a verified complaint in writing and state the name of the person alleged to have committed the violation and the particulars of the violation.

             (2)     When a complaint is filed with or by the ethics committee alleging a violation of Chapter 13, Title 8 or Chapter 17, Title 2, a copy must be sent to the person alleged to have committed the violation and to the State Ethics Commission, hereinafter referred to as ‘the commission’ within thirty days from the date the complaint was filed, for an investigation. However, if the complaint only alleges a violation of a rule of the Senate, the ethics committee must forward a copy of the complaint to the person alleged to have committed the violation, and the ethics committee shall investigate and make a determination for a complaint.

              (3)     Upon completing its investigation, the commission must provide a report to the ethics committee with a recommendation as to whether there is probable cause to believe a violation of Chapter 13, Title 8 or of Chapter 17, Title 2 has occurred. A recommendation of probable cause requires an affirmative vote by six or more members of the commission. The report must include a copy of all relevant reports, evidence, and testimony considered by the commission.

    (B)(1)     All investigations, inquiries, hearings and accompanying documents are confidential and only may be released pursuant to Section 813540.

              (2)(a)     Upon a recommendation of probable cause by the commission for a violation, other than 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 commission’s recommendation of probable cause.

                  (b)     If the ethics committee requests further investigation after receipt of the commission’s report, documents only may be released if the commission’s second report to the committee recommends a finding of probable cause.

    (C)(1)     Upon receipt of the commission’s report, the ethics committee may concur or nonconcur with the commission’s recommendation, or within fortyfive days from the committee’s receipt of the report, request the commission to continue the investigation in order to review information previously received or consider additional matters not considered by the commission.

              (2)     If, after reviewing the commission’s recommendation and relevant evidence, the ethics committee determines that there is not competent and substantial evidence a violation of Chapter 13, Title 8 or of Chapter 17, Title 2 has occurred, the committee shall dismiss the complaint and send a written decision to the respondent and the complainant. The notice of dismissal must be made public if the commission made a recommendation that probable cause existed.

              (3)     If, after reviewing the commission’s recommendation and relevant evidence, the ethics committee determines that the respondent has committed only a technical violation pursuant to Section 8131170 or 8131372, the provisions of the appropriate section apply.

              (4)     If, after reviewing the commission’s recommendation and relevant evidence, the ethics committee determines that there is competent and substantial evidence that a violation of Chapter 13, Title 8 or of Chapter 17, Title 2 has occurred, except for a technical violation of Section 8-13-1170 or 8-13-1372, the committee shall, as appropriate:

                  (a)     render an advisory opinion to the respondent and require the respondent’s compliance within a reasonable time; or

                  (b)     convene a formal public hearing on the matter.

    The ethics committee may obtain its own information, or request additional investigation by the State Ethics Commission, if it needs additional information to make a determination as to whether or not competent and substantial evidence of a violation exists. An advisory opinion to the respondent pursuant to subitem (a) must be made public.

              (5)     If the ethics committee convenes a formal public hearing:

                  (a)     the investigator or attorney handling the investigation for the State Ethics Commission shall present the evidence related to the complaint to the ethics committee;

                  (b)     it is the duty of the investigator or attorney to further investigate the subject of the complaint and any related matters under the jurisdiction and at the direction of the ethics committee, to request assistance from appropriate state agencies as needed, to request authorization from the committee for funds for the hiring of auditors, investigators, or other assistance as necessary, to prepare subpoenas, and to present evidence to the committee at any public hearing. The ethics committee shall maintain the authority to approve subpoenas, authorize expenditures, dismiss complaints, schedule hearings, grant continuances, and as otherwise provided for by the Senate Rules;

                  (c)     the respondent must be allowed to examine and make copies of all evidence in the ethics committee’s possession relating to the charges. At the hearing 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 crossexamine opposing witnesses;

                  (d)     all hearings must be open to the public.

              (6)(a)     After the formal public hearing, the ethics committee shall determine its findings of fact and issue its final order.

                  (b)     If the ethics committee, based on competent and substantial evidence, finds the respondent has not violated Chapter 13, Title 8 or Chapter 17, Title 2, the committee shall dismiss the complaint and send a written decision to the respondent and the complainant.

                  (c)     If the ethics committee, based on competent and substantial evidence, finds the respondent has violated Chapter 13, Title 8 or Chapter 17, Title 2, the committee shall:

                                      (i)     administer a public reprimand;

                                      (ii)     determine that a technical violation as provided for in Section 8-13-1170 or 8-13-1372 has occurred;

                                      (iii)     require the respondent to pay a civil penalty not to exceed two thousand dollars for each nontechnical violation that is unrelated to the late filing of a required statement or report or failure to file a required statement or report;

                                      (iv)     require the forfeiture of gifts, receipts, or profits, or the value of each, obtained in violation of Chapter 13, Title 8 or Chapter 17, Title 2;

                                      (v)     recommend expulsion of the member;

                                      (vi)     provide a copy of the complaint and accompanying materials to the Attorney General if the committee finds that there is probable cause to believe the respondent wilfully violated a section of Chapter 13, Title 8 or Chapter 17, Title 2 that imposes a criminal penalty; or

                                      (vii)     require a combination of subitems (i) through (vi) as necessary and appropriate.

                  (d)     The ethics committee shall report its findings in writing to the President Pro Tempore of the Senate. The report must be accompanied by an order of punishment or dismissal and supported and signed by a majority of the ethics committee members.

                  (e)     Upon the issuance of the final order, the following documents become public record: exhibits introduced at the hearing, the committee’s findings, and the final order. 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 addition, any documents in the commission’s report that substantiate the commission’s recommendation of probable cause that would constitute a public document and are not exempt from disclosure under the Freedom of Information Act or other state or federal law also shall become public record. These documents must be redacted, as appropriate, in compliance with state or federal law.

    (D)     If, after conducting a formal public hearing, the ethics committee finds the respondent has violated Chapter 13, Title 8 or Chapter 17, Title 2, the respondent has ten days from the date of receiving the committee’s order of punishment to appeal the action to the full Senate.

    (E)     No ethics committee member may take part in consideration of any matter in which they are the respondent, complainant, witness, or otherwise involved.

    (F)     The ethics committee shall establish procedures which afford respondents 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 crossexamine opposing witnesses.”

    (G)     It is unlawful for anyone who is the subject of a pending investigation or open complaint, to contact or attempt to contact, either directly or indirectly, a member of the commission or the ethics committee to influence or attempt to influence the outcome of a pending investigation or open complaint.

    Action may not be taken on a complaint filed more than four years after the violation is alleged to have occurred unless the person alleged to have committed the violation, by fraud or other device, prevents discovery of the violation.

B.
Subsequent Actions by the Senate

        Upon receipt of a recommendation of expulsion or an appeal from an order of the Ethics Committee, the President Pro Tempore shall call the Senate into open session at a time to be determined at his discretion to consider the action of the Ethics Committee. The Senate shall either sustain or overrule the Ethics Committee’s action or order other action consistent with these Rules as otherwise permitted by statute. Upon consideration of an ethics committee report by the Senate, whether in executive or open session, the results of the consideration are a matter of public record.

        No member may vote on the question of his or her expulsion from the Senate.

        Failure to fully comply with a final ethics order is a separate violation that may be considered by the ethics Committee.

C.
Penalty for Failure to File Statements or Reports as Required

        If the Senate Ethics Committee finds the respondent has failed to file or was late in filing a required statement of economic interest or campaign disclosure report, the Senate Ethics Committee must order the respondent to pay a fine according to the provisions in Section 8-13-1510.

D.
Technical Violations

        The Senate Ethics Committee may, in its discretion, determine that errors or omissions on statements of economic interests and campaign disclosure reports are inadvertent and unintentional and not an effort to violate a requirement of Chapter 13, Title 8 and may be handled as technical violations not subject to the provisions of Chapter 13, Title 8 pertaining to ethical violations. The Senate Ethics Committee may assess a penalty for technical violations not exceeding fifty dollars.

E.
Receipt of Documents

    In conjunction with the proceedings specified in Rule 44.2, the President Pro Tempore, and the Senate Ethics Committee on behalf of the entire Senate, may receive:

        (1) certified copies of any indictment or information for a felony or offense against the election laws filed or returned against any member of the Senate;

        (2) certified copies of any plea of guilty or nolo contendere to the felony entered by any member of the Senate;

        (3) certified copies of any conviction of a member for the felony; and

        (4) certified copies of any opinion, order, or judgment of any court, state or federal, trial or appellate, relating to any of the aforementioned matters.

Rule 44.2.
Rules Governing Actions Taken Against a Member

        (a)     If an indictment, information on a felony, or a warrant for the offenses provided in Sections 7- 13-1920, 7-25-20, 7-25-50, 7-25-60, 7-25-110, 7-25-120 and 7-25-150 of the Code of Laws, is filed, returned, or issued against a member of the Senate, the member indicted, charged or informed against may request the President Pro Tempore to excuse the member, without pay, from all privileges of membership of the Senate and the President Pro Tempore shall comply with the request.

        If the indictment, charge or information is either nol prossed or dismissed, or if the member is found not guilty of the offense or offenses charged or of lesser included offenses, the member may immediately return to active Senate duties and shall be paid all back pay and be restored to all other benefits and privileges retroactive to the date the member was excused.

        (b)     A member who enters a plea of guilty or nolo contendere to any offense listed in subsection (a) must be suspended by the President Pro Tempore immediately, without a hearing and without pay, from all privileges of membership of the Senate through the remainder of that member’s term. In addition, the Senate Ethics Committee shall recommend expulsion of such member to the Senate and the Senate shall vote on the expulsion of such member in accordance with Section 12 of Article III of the Constitution of this State.

        (c)     A member convicted of any offense listed in subsection (a) must be suspended by the President Pro Tempore immediately, without a hearing and without pay, from all privileges of membership of the Senate pending final appellate action or the end of that member’s term, whichever occurs first. If no appeal is taken by the member convicted, or if his or her appeal is denied, or if the final appellate decision is to sustain the conviction and the member’s resignation is not forthcoming, the Senate Ethics Committee shall recommend expulsion of such member to the Senate, and the Senate shall vote on the member’s expulsion in accordance with Section 12 of Article III of the Constitution of this State.

        If the final appellate decision is to vacate the conviction and there is a retrial or rehearing, the member is subject to the provisions of subsection (a). If the final appellate decision is to vacate the conviction and no charges for any offense listed in subsection (a) remain against the member, the member is entitled to restitution of back pay and restoration of all other benefits and privileges of membership of the Senate retroactive to the date of suspension.

        (d)     The action provided for in subsections (a), (b), and (c) of this rule is in addition to other action authorized pursuant to Article III, Section 12 of the Constitution or other Senate rule. Pursuant to the Constitution and except as provided herein, a member may not be disciplined, suspended, or expelled without a vote of the Senate.

        If the final appellate decision is to vacate the conviction and there is a retrial or rehearing, the member is subject to the provisions of subsection (a). If the final appellate decision is to vacate the conviction and no charges for any offense listed in subsection (a) remain against the member, the member is entitled to restitution of back pay and restoration of all other benefits and privileges of membership of the Senate retroactive to the date of suspension.

        (e)     The action provided for in subsections (a), (b), and (c) of this rule is in addition to other action authorized pursuant to Article III, Section 12 of the Constitution or other Senate rule. Pursuant to the Constitution and except as provided herein, a member may not be disciplined, suspended, or expelled without a vote of the Senate.

Last Updated: 12/7/16 4:07 PM



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