2007-2008 Bill 355 Text of Previous Version (Mar. 28, 2007)

South Carolina General Assembly
117th Session, 2007-2008

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Bill 355

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Indicates New Matter

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COMMITTEE REPORT AMENDED

March 28, 2007

S. 355

Introduced by Senators Grooms, Richardson, Verdin, Campsen and Vaughn

S. Printed 3/28/07--S. [SEC 3/28/07 6:08 PM]

Read the first time January 30, 2007.

THE COMMITTEE ON TRANSPORTATION

(AS AMENDED MARCH 28, 2007)

To whom was referred a Bill (S. 355) to amend Section 1-30-10(b) of the 1976 Code, relating to departments of state government, to provide that the governing authority of the Department of Transportation, etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the committee report, as and if amended, by striking the committee report in its entirety and inserting therein:

/ A BILL

TO AMEND SECTION 1-30-105 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEPARTMENT OF TRANSPORTATION, SO AS TO PROVIDE THAT THE COMMISSION IS ABOLISHED AND THE GOVERNING AUTHORITY OF THE DEPARTMENT OF TRANSPORTATION IS A BOARD AS PROVIDED BY LAW; TO AMEND SECTION 1-3-240, RELATING TO THE REMOVAL OF CERTAIN OFFICIALS FROM OFFICE, SO AS TO PROVIDE THAT A DEPARTMENT OF TRANSPORTATION BOARD MEMBER MAY BE REMOVED BY THE GOVERNOR FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY; TO AMEND CHAPTER 1, TITLE 57, RELATING TO THE DEPARTMENT OF TRANSPORTATION, SO AS TO RECONSTITUTE THE COMMISSION AS A BOARD, TO PROVIDE THAT THE BOARD SHALL BE COMPOSED OF SEVEN MEMBERS APPOINTED BY THE GOVERNOR, SCREENED BY THE JOINT TRANSPORTATION REVIEW COMMITTEE, AND SUBJECT TO THE ADVICE AND CONSENT OF THE SENATE, TO ESTABLISH THE LENGTH OF TERMS THAT BOARD MEMBERS MAY SERVE, AND DEFINE THE POWERS AND DUTIES OF THE BOARD, TO PROVIDE THAT THE BOARD EMPLOYS AN EXECUTIVE DIRECTOR WHO SERVES AT THE PLEASURE OF THE BOARD, AND TO PROVIDE THAT THE BOARD EMPLOYS A CHIEF HIGHWAY ENGINEER WHO MAY BE REMOVED BY THE BOARD FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY AND WHO, IN CONJUNCTION WITH THE BOARD, MUST CREATE THE STATEWIDE TRANSPORTATION PRIORITY PLAN; AND BY ADDING ARTICLE 7 TO CHAPTER 1 OF TITLE 57, SO AS TO CREATE THE JOINT TRANSPORTATION REVIEW COMMITTEE AND TO PROVIDE FOR THE MANNER IN WHICH DEPARTMENT OF TRANSPORTATION BOARD MEMBERS ARE SCREENED.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 1-30-105 of the 1976 Code is amended to read:

"Section 1-30-105. (A) Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Transportation to be initially divided into divisions for Mass Transit, Construction and Maintenance, Engineering and Planning, Finance and Administration; ~~provided,~~ however, ~~that~~ the State Highway Commission as constituted on June 30, 1993, under the provisions of Title 56, shall be the governing authority for the department until February 15, 1994, or as soon as its successors are elected or appointed and qualified, whichever is later:

Department of Highways and Public Transportation, except the Motor Vehicle Division, which was established as the Department of Motor Vehicles by Section 56-1-5, and the State Highway Patrol, formerly provided for at Section 56-1-10, et seq.

(B) The Commission of the Department of Transportation constituted on the effective date of this subsection shall continue to serve until the requirements of Section 57-1-320 are met, at which time the commission is abolished and the Department of Transportation Board, as established in Chapter 1 of Title 57, is the governing authority for the department."

SECTION 2. Section 1-3-240(C)(1) of the 1976 Code is amended to read:

"(C)(1) Persons appointed to the following offices of the State may be removed by the Governor for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity:

(a) Workers' Compensation Commission;

(b) ~~Reserved~~ Department of Transportation Board;

(d) Election Commission;

(e) Professional and Occupational Licensing Boards;

(f) Juvenile Parole Board;

(g) Probation, Parole and Pardon Board;

(h) Director of the Department of Public Safety;

(i) Board of the Department of Health and Environmental Control, excepting the chairman;

(j) Chief of State Law Enforcement Division;

(k) South Carolina Lottery Commission;

(l) Executive Director of the Office of Regulatory Staff; and

(m) Directors of the South Carolina Public Service Authority appointed pursuant to Section 58-31-20. A director of the South Carolina Public Service Authority also may be removed for his breach of any duty arising under Sections 58-31-55 or 58-31-56. The Governor must not request a director of the South Carolina Public Service Authority to resign unless cause for removal, as established by this subsection, exists. Removal of a director of the South Carolina Public Service Authority, except as is provided by this section or by Section 58-31-20(A), must be considered to be an irreparable injury for which no adequate remedy at law exists."

SECTION 3. Chapter 1 of Title 57 of the 1976 Code is amended to read:

"CHAPTER 1

GENERAL PROVISIONS

ARTICLE 1

DEPARTMENT OF TRANSPORTATION

Section 57-1-10. For the purposes of this title, the following words, phrases, and terms are defined as follows:

(1) '~~Commission'~~ 'Board' means the administrative and governing body of the Department of Transportation.

(2) ~~'Department'~~ 'Department' means the Department of Transportation (DOT).

(3) ~~'Director'~~ 'Executive Director' means the chief administrative officer of the Department of Transportation.

(4) 'Chief Highway Engineer' means the person selected by the board as provided in Section 57-1-410(B) to create, in conjunction with the board, the statewide transportation priority plan.

Section 57-1-20. The Department of Transportation is established as an administrative agency of state government which is comprised of a Division of Mass Transit; a Division of Construction Engineering and Planning; and a Division of Finance and Administration. Each division of the Department of Transportation shall have such functions and powers as provided for by law.

Section 57-1-30. (A) The department shall have as its functions and purposes the systematic planning, construction, maintenance, and operation of the state highway system and the development of a statewide mass transit system that is consistent with the needs and desires of the public.

(B) The department shall coordinate all state and federal programs relating to highways among all departments, agencies, and other bodies politic and legally constituted agencies of this State and the performance of such other duties and matters as may be delegated to it pursuant to law. The goal of the department is to provide adequate, safe, and efficient transportation services for the movement of people and goods.

Section 57-1-35. The members of the board and employees of the department are subject to the provisions of Chapter 13 of Title 8, the State Ethics Act, and the provisions of Chapter 78 of Title 15, the South Carolina Tort Claims Act.

Section 57-1-40. (A) It is unlawful for a member of the ~~commission~~ board or an engineer, agent, or other employee, acting for or in behalf of the department or ~~commission~~ board, to accept or agree to accept, receive or agree to receive, or ask or solicit, either directly or indirectly, with the intent to have his decision or action on any question, matter, cause, or proceeding which at the time may be pending or which by law may be brought before him in his official capacity or in his place of trust or profit influenced, any:

(1) money;

(2) contract, promise, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value;

(3) political appointment or influence, present, or reward;

(4) employment; or

(5) other thing of value.

A person violating the provisions of subsection (A) is guilty of a felony and, upon conviction, must be imprisoned not more than five years and is disqualified forever from holding any office of trust or profit under the Constitution or laws of this State.

(B) It is unlawful for a person to give or offer to give, promise, or cause or procure to be promised, offered, or given, either directly or indirectly, to a member of the ~~commission~~ board or an engineer, agent, or other employee acting for or on behalf of the ~~commission~~ board or department with the intent to have his decision or action on any question, matter, cause, or proceeding which at the time may be pending or which by law may be brought before him in his official capacity or in his place of trust or profit influenced, any:

(1) money;

(2) contract, promise, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value;

(3) political appointment or influence, present, or reward;

(4) employment; or

(5) other thing of value.

A person violating the provisions of subsection (B) is guilty of a felony and, upon conviction, must be imprisoned not more than five years and is disqualified forever from holding any office of trust or profit under the Constitution or laws of this State.

Section 57-1-50. The assent of the State is hereby given to the terms and provisions of any act providing for federal aid to the states for the construction of highways and other related transportation projects. The good faith of the State is hereby pledged to provide sufficient funds to meet the requirements of said federal act, so as to acquire the benefits thereof.

Section 57-1-60. (A) The Governor, in addition to other duties and responsibilities conferred upon him by the Constitution and laws of this State, is charged with the responsibility for the administration of the state's highway safety programs and is further charged with the duty of contracting and doing all other things necessary on behalf of this State and, in so doing, to work with federal and state agencies, agencies private and public, interested organizations, and with individuals to effectuate that purpose. The Governor shall be the official of this State having the ultimate responsibility for dealing with the federal government with respect to highway safety transportation programs and activities. To that end the Governor shall coordinate the activities of any and all departments and agencies of this State and its subdivisions.

(B)(1) The Department of Transportation Board, in conjunction with the Chief Highway Engineer, must develop a methodology for determining how to design the statewide transportation priority plan that includes, but is not limited to, the schedule of priorities for all major construction projects and funds allocated to complete those projects.

(2) In developing the methodology, the department must include, but is not limited to, consideration of the following criteria:

(a) financial viability, including a life cycle analysis of estimated maintenance and repair costs over the expected life of the project;

(b) public safety;

(d) traffic volume;

(e) truck traffic;

(f) the pavement quality index;

(g) alternative transportation solutions;

(h) consistency with local land use plans;

(i) environmental impact; and

(j) federal requirements for designing and setting priorities for the Statewide Transportation Improvement Plan (STIP).

(3) The department shall conduct one or more public hearings to receive input prior to adopting a methodology. Any public hearing must include the opportunity for the public to address board members and staff or a hearing officer in a format so that comments are heard by the general public attending the hearing. A recording of the public hearing and documents received as public comment must be available to the public as provided in Chapter 4 of Title 30, the South Carolina Freedom of Information Act.

(4) The methodology must be submitted to the Joint Transportation Review Committee for review and comment as provided in Section 57-1-730(10)(a).

(5)(a) Following review of the methodology by the Joint Transportation Review Committee, the board must finalize and approve the methodology. After the methodology is approved, the board, in conjunction with the Chief Highway Engineer, must design the statewide transportation priority plan in compliance with the approved methodology.

(b) The department shall conduct one or more public hearings to receive input prior to developing the statewide transportation priority plan. If required by federal regulations, the department must conduct a public hearing in each county affected to allow the department to share information regarding the project with the local community and to allow the local community to address its concerns with department board members and staff. Any public hearing must include the opportunity for the public to address board members and staff or a hearing officer in a format so that comments are heard by the general public attending the hearing. A recording of the public hearing and documents received as public comment must be available to the public as provided in Chapter 4 of Title 30, the South Carolina Freedom of Information Act.

(C) The plan must be submitted to the Joint Transportation Review Committee for review and comment. Following its evaluation, the Joint Transportation Review Committee must submit a letter to the General Assembly and the Board indicating it has reviewed and the plan and forward its comments as provided in Section 57-1-730(10)(b).

(D) Following review of the statewide transportation priority plan by the Joint Transportation Review Committee, the department must promulgate the statewide transportation priority plan as a regulation under the provisions of Article 3 of Chapter 23 of Title 1, the State Administrative Procedures Act. The statewide transportation priority plan is effective only after the regulation is approved by the General Assembly as provided in Section 1-23-120, Section 1-23-125, and Section 1-23-126. The statewide transportation priority plan must not be promulgated as an emergency regulation under the provisions of Section 1-23-130.

Section 57-1-70. It is the sense of the General Assembly that the Department of Transportation should comply with Section 105(f) of the Federal Aid Highway Act. The department is directed to effectuate and assure the compliance through contract documents and regulations as may be necessary and such input from the Governor's Office (Office of Small and Minority Business Assistance) in the promulgation of the regulations.

ARTICLE 3

~~COMMISSION OF~~ THE DEPARTMENT OF TRANSPORTATION BOARD

Section 57-1-310. The congressional districts of this State are constituted and created Department of Transportation districts of the State, designated by numbers corresponding to the numbers of the respective congressional districts. The Commission of the Department of Transportation shall be composed of one member from each transportation district elected by the delegations of the congressional district and one member appointed by the Governor, upon the advice and consent of the Senate, from the State at large. Such elections or appointment, as the case may be, shall take into account race and gender so as to represent, to the greatest extent possible, all segments of the population of the State; however, consideration of these factors in making an appointment or in an election in no way creates a cause of action or basis for an employee grievance for a person appointed or elected or for a person who fails to be appointed or elected.

(A) On and after the effective date of this section, the Department of Transportation is composed of a board of seven members, one from each congressional district of the State and one from the State at large who shall serve as the chairman. A member of the board must:

(1) reside in South Carolina and, in the case of a member representing a congressional district, reside in the congressional district he represents;

(2) have a background of substantial duration and expertise in at least one of the following:

(a) transportation issues;

(b) finance;

(d) engineering; or

(e) law.

(3) be appointed by the Governor, screened by the Joint Transportation Review Committee as provided in Article 7 of this chapter and determined to have the qualifications required in this chapter, and confirmed by the advice and consent of the Senate.

(B) In appointing and confirming the board members, the Governor and Senate must take into account race and gender so as to represent, to the greatest extent possible, all segments of the population of the State, including representation from rural and urban areas; however, consideration of these factors in making in an appointment in no way creates a cause of action or basis for a grievance for a person appointed or for a person who fails to be appointed.

(C) No member of the General Assembly or member of his immediate family shall be appointed to the board while the member is serving in the General Assembly; nor shall a member of the General Assembly or a member of his immediate family be appointed to the board for a period of four years after the member either:

(1) ceases to be a member of the General Assembly; or

(2) fails to file for election to the General Assembly in accordance with Section 7-11-15.

Section 57-1-320. ~~(A)~~ A county that is divided among two or more Department of Transportation districts, for purposes of electing a commission member, is deemed to be considered in the district which contains the largest number of residents from that county.

~~(B)~~ No county within a Department of Transportation district shall have a resident commission member for more than one consecutive term and in no event shall any two persons from the same county serve as a commission member simultaneously except as provided hereinafter.

(A) The Joint Transportation Review Committee, established pursuant to Article 7 of this chapter, must meet within ninety days of the effective date of this section to screen and determine if appointees are qualified to serve as initial board members.

(B) Notwithstanding the provisions of Section 1-3-210, the initial board members appointed by the Governor shall serve in an interim capacity pending confirmation by the Senate. If the appointment is made while the Senate is not is session, then the Governor must report the appointment of the initial board members to the Senate and must forward a formal appointment during the 2008 regular session. All interim appointments made pursuant to this section must be transmitted to the Senate pursuant to Section 1-3-215. If the Senate does not advise and consent to an interim appointment of a board member by sine die of the 2008 session, the office is vacant and the interim appointment must not serve in hold over status, notwithstanding any other provision of law to the contrary. A subsequent interim appointment of a different person to a vacancy created by a failure of the Senate to grant confirmation to the original interim appointment of an initial board member expires on the second Tuesday in January following the date of such subsequent interim appointment and the office shall be vacant.

(C) No later than thirty days after the final initial board member is appointed, as the case may be, the board must meet and organize. Following the initial board meeting, the board chairman must immediately file with the Secretary of State certification the board has met and organized.

(D) The Department of Transportation Commission is abolished effective on the date that the certification required by subsection (C) is filed with the Secretary of State and the powers, duties, and functions of the commission are devolved upon the board.

Section 57-1-325. Legislators residing in the congressional district shall meet upon written call of a majority of the members of the delegation of each district at a time and place to be designated in the call for the purpose of electing a commissioner to represent the district. A majority present, either in person or by written proxy, of the delegation from a given congressional district constitute a quorum for the purpose of electing a district commissioner. No person may be elected commissioner who fails to receive a majority vote of the members of the delegation.

The delegation must be organized by the election of a chairman and a secretary, and the delegations of each congressional district shall adopt such rules as they consider proper to govern the election. Any absentee may vote by written proxy. When the election is completed, the chairman and the secretary of the delegation shall immediately transmit the name of the person elected to the Secretary of State who shall issue to the person, after he has taken the usual oath of office, a certificate of election as commissioner. The Governor shall thereupon issue a commission to the person, and pending the issuance of the commission the certificate of election is sufficient warrant to the person to perform all of the duties and functions of his office as commissioner. Each ~~commissioner~~ board member shall serve until his successor is elected and qualified, except as provided in Section 57-1-320.

Section 57-1-330. (A) Beginning February 15, 1994, commissioners must be elected by the legislative delegation of each congressional district. For the purposes of electing a commission member, a legislator shall vote only in the congressional district in which he resides. All ~~commission~~ board members must serve for a term of office of ~~four~~ six years, except as provided in subsection (B), which expires on February fifteenth of the appropriate year as provided in this section. ~~Commissioners shall continue to serve until their successors are elected and qualify, provided that a commissioner may only serve in a hold-over capacity for a period not to exceed six months.~~ Any vacancy occurring in the office of ~~commissioner~~ a board member ~~shall~~ must be filled by ~~election~~ appointment in the manner provided in this ~~article~~ chapter for the unexpired term only. No person is eligible to serve as a ~~commission~~ board member who is not a resident of ~~that district~~ the congressional district he represents at the time of his appointment, except that the at-large ~~commission~~ board member may be appointed from any ~~county~~ congressional district in the State ~~regardless of whether another commissioner is serving from that county~~. Failure by a ~~commission~~ board member to maintain residency in the congressional district for which he is elected during his term shall result in the forfeiture of his office. The at-large ~~commission~~ board member~~, upon confirmation, shall~~ must serve as chairman of the ~~commission~~ board.

(B) The terms of the ~~initial~~ board members ~~of the commission~~ initially appointed ~~from congressional districts~~ are as follows:

(1) for the at-large board member -- beginning in 2007 for a term to end February 15, 2010, and thereafter for terms of four years coterminous with the Governor;

(2) ~~commission~~ for board members appointed to represent odd-numbered congressional districts--~~two~~ beginning in 2007 for a term to end February 15, 2010, and thereafter for terms of six years; and

~~(2)~~(3) ~~commission~~ for board members appointed to represent even-numbered congressional districts--~~four~~ beginning in 2007 for a term to end February 15, 2012, and thereafter for terms of six years.

(C) ~~The at-large commissioner shall serve at the pleasure of the Governor~~ The board members may be removed from office as provided in Section 1-3-240(C)(1).

Section 57-1-340. Each ~~commission~~ board member, within thirty days after his election or appointment, and before entering upon the discharge of the duties of his office, shall take, subscribe, and file with the Secretary of State the oath of office prescribed by the Constitution of the State.

Section 57-1-350. (A) The ~~commission~~ board may adopt an official seal for use on official documents of the department.

(B) The ~~commission~~ board shall adopt its own rules and procedures and may select such additional officers to serve such terms as the ~~commission~~ board may designate.

(C) ~~Commissioners~~ Board members must be reimbursed for official expenses as provided by law for members of state boards and commissions as established in the annual general appropriation act.

ARTICLE 5

EXECUTIVE DIRECTOR, CHIEF HIGHWAY ENGINEER, ~~OF THE DEPARTMENT OF TRANSPORTATION~~

AND OTHER EMPLOYEES OF THE DEPARTMENT OF TRANSPORTATION

Section 57-1-410. (A) The ~~commission~~ board shall employ ~~a director~~ an Executive Director who shall serve at the pleasure of the ~~commission~~ board. A person appointed to this position shall be a citizen of practical and successful business and executive ability who has a knowledge in the field of transportation. The ~~director~~ Executive Director shall receive such compensation as may be ~~established~~ determined by the Joint Transportation Review Committee under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriation act.

(B) The board shall employ a Chief Highway Engineer who may be removed by the board for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity. A person appointed to this position shall be a citizen with civil engineering experience and any other experience the board may require. The Chief Highway Engineer shall receive such compensation as may be determined by the Joint Transportation Review Committee under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriation act. Section 57-1-430. (A) The ~~director~~ Executive Director must carry out the policies of the ~~commission~~ board and administer the affairs of the department, and may exercise all powers belonging to the ~~commission~~ board within the guidelines and policies established by the ~~commission~~ board, when the ~~commission~~ board is not in session. He must represent the department in its dealings with other state agencies, local governments, special districts, and the federal government.

(B) For each division, the ~~director~~ Executive Director may employ such personnel and prescribe their duties, powers, and functions as he considers necessary and as may be authorized by statute and for which funds have been authorized in the annual general appropriation act.

Section 57-1-440. The ~~director~~ Executive Director shall have the exclusive authority to employ a chief counsel and such staff attorneys and support staff as are necessary to represent the department in legal matters, condemnation procedures, and other such litigation. Any extra legal services that may be required shall be performed by attorneys selected by the ~~director~~ Executive Director. The department is authorized to retain independent adjusters for purposes of investigating and adjusting claims and suits resulting from motor vehicle damage and personal injury damage programs involving department liability exposure and recovery potential. Expenses for the administration and implementation of this section shall be paid for from the state highway fund.

Section 57-1-450. The ~~director~~ Executive Director shall appoint a deputy director for each division of the department who shall serve at the pleasure of the ~~director~~ Executive Director and shall recommend the salary for each deputy director as allowed by statute or applicable law.

Section 57-1-490. The department shall be audited by a certified public accountant or firm of certified public accountants once each year to be designated by the State Auditor. The designated accountant or firm of accountants shall issue audited financial statements in accordance with generally accepted accounting principles, and such financial statements shall be made available annually by October fifteenth to the General Assembly. The costs and expenses of the audit must be paid by the department out of its funds."

SECTION 4. Chapter 1, Title 57 of the 1976 Code is amended by adding:

"ARTICLE 7

JOINT TRANSPORTATION REVIEW COMMITTEE

Section 57-1-710. There is hereby established a committee to be known as the Joint Transportation Review Committee, hereinafter called the review committee, which must exercise the powers and fulfill the duties described in this article.

Section 57-1-720. (A) The review committee is composed of ten members as follows:

(1) one appointed by the Chairman of the Senate Finance Committee;

(2) one appointed by the Chairman of the Senate Judiciary Committee;

(3) one appointed by the Chairman of the Senate Transportation Committee;

(4) two members of the general public appointed by the President Pro Tempore of the Senate upon the recommendations of the Senate majority leader and the Senate minority leader;

(5) one appointed by the Chairman of the House Ways and Means Committee;

(6) one appointed by the Chairman of the House Judiciary Committee;

(7) one appointed by the Chairman of the House Education and Public Works Committee; and

(8) two members of the general public appointed by the Speaker of the House of Representatives.

(B) In making appointments to the joint committee, race, gender, and other demographic factors, such as residence in rural or urban areas, must be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of the State. The members of the general public appointed by the President Pro Tempore of the Senate and Speaker of the House of Representatives must be representative of all citizens of this State and must not be members of the General Assembly.

(C) The review committee must meet as soon as practicable after appointment and organize itself by electing one of its members as chairman and such other officers as the review committee may consider necessary. Thereafter, the review committee must meet at least annually and at the call of the chairman or by a majority of the members. A quorum consists of five members.

(D) Unless the review committee finds a gubernatorial appointee qualified, the appointee must not be confirmed by the advice and consent of the Senate to serve on the Department of Transportation Board.

Section 57-1-730. The review committee has the following powers and duties:

(1) to screen the persons the Governor appoints to the Department of Transportation Board pursuant to the provisions of Section 2-20-10, et seq.; however, Section 2-20-40 is not applicable to a screening by the review committee;

(2) in screening candidates for the board and making its findings, the review committee must seek to find the best qualified people by giving due consideration to:

(a) ability, dedication, compassion, common sense, and integrity of the candidates; and

(b) the race and gender of the candidates and other demographic factors, such as residence in rural or urban areas, to assure nondiscrimination to the greatest extent possible of all segments of the population of the State.

(3) to determine if the appointees are qualified and meet the requirements provided by law to serve as members of the Department of Transportation Board, make findings concerning whether the appointees are qualified, and deliver its findings to the Senate;

(4) to conduct an annual performance review of each member of the Department of Transportation Board, which must be submitted to the General Assembly. A draft of the member's performance review must be submitted to the member, and the member must be allowed an opportunity to be heard before the review committee before the final draft of the performance review is submitted to the General Assembly. The final performance review must be made a part of the member's record for consideration if the member seeks reelection to the commission;

(5) to evaluate the actions of the board, so that the members of the General Assembly may better judge whether these actions serve the best interests of the citizens of South Carolina, both individual and corporate;

(6) to submit to the General Assembly, on an annual basis, the review committee's evaluation of the performance of the board. A proposed draft of the evaluation must be submitted to the board prior to submission to the General Assembly, and the board must be given an opportunity to be heard before the review committee prior to the completion of the evaluation and its submission to the General Assembly;

(7) to conduct an annual performance review of the Executive Director of the Department of Transportation, which must be submitted to the General Assembly. A draft of the executive director's performance review must be submitted to the executive director, and the executive director must be allowed an opportunity to be heard before the review committee before the final draft of the performance review is submitted to the General Assembly;

(8) to assist in developing an annual workshop of at least six contact hours concerning ethics and the Administrative Procedures Act for the board members and employees of the Department of Transportation;

(9) to make reports and recommendations to the General Assembly on matters relating to the powers and duties set forth in this section;

(10)(a)to submit a letter to the General Assembly indicating the review committee has reviewed methodology for the statewide transportation priority plan as provided in Section 57-1-60(B)(4);

(b) following its evaluation of the statewide transportation priority plan, to submit a letter to the General Assembly indicating the review committee has reviewed the statewide transportation priority plan as provided in Section 57-1-60(C);

(11) to appoint a committee from the general public at large to advise the review committee on any of its powers and duties. Members must not be members of the General Assembly, board members, the Executive Director, Chief Highway Engineer, or employees of the Department of Transportation; and

(12) to undertake such additional studies or evaluations as the review committee considers necessary.

Section 57-1-740. (A) The review committee members are entitled to such mileage, subsistence, and per diem as authorized by law for members of boards, committees, and commissions while in the performance of the duties for which appointed. These expenses shall be paid from the general fund of the State on warrants duly signed by the chairman of the review committee and payable by the authorities from which they are appointed.

(B) The expenses associated with the review committee duties to qualify and nominate candidates for the Department of Transportation Board and to develop an annual workshop on ethics and the Administrative Procedures Act must be paid from the general fund of the State.

Section 57-1-750. (A) The review committee must use clerical and professional employees of the General Assembly for its staff, who must be made available to the review committee.

(B) The review committee may employ or retain other professional staff, upon the determination of the necessity for other staff by the review committee.

Section 57-1-760. The review committee may conduct a comprehensive study of other states' Department of Transportation Board's structures, responsibilities, qualifications, and compensation. The review committee may prepare and deliver this report along with its recommendations to the General Assembly on or before January 15, 2009."

SECTION 5. References in the 1976 Code to the "Commission of the Department of Transportation" or references to "commission" that refer to the administrative and governing body of the Department of Transportation, mean the "Department of Transportation Board" or "board", as appropriate; references to "director" that refer to the chief administrative officer of the Department of Transportation, mean the "Executive Director of the Department of Transportation" or "Executive Director," as appropriate; and references to "Department of Transportation Commissioner" mean "member of the Department of Transportation Board" or "board member" as appropriate. The Code Commissioner shall change references in the 1976 Code to conform to this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.

SECTION 6. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION 7. (A) The repeal or amendment by this act of any law, whether temporary or permanent, does not affect pending actions, rights, duties, or liabilities founded on it, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision expressly provides it. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws. Any state agency, board, commission, or council to which are transferred the powers, duties, and functions of any state agency, board, commission, or council relating to the pending proceeding must be substituted as a party in interest.

(B) Any statute enacted and any rule or regulation made in respect to any state agency, board, commission, or council or function transferred to, or consolidated, coordinated, or combined with any other state agency, board, commission, or council or function under the provisions of this act before the effective date of the transfer, consolidation, coordination, or combination, except to the extent repealed, modified, superseded, or made inapplicable by or under the authority of law, shall have the same effect as if the transfer, consolidation, coordination, or combination had not been made. But when any such statute, rule, or regulation has vested functions in the state agency, board, commission, or council from which the transfer is made under the act, the functions, insofar as they are to be exercised after the transfer, must be considered as vested in the state agency, board, commission, or council to which the transfer is made under the act.

SECTION 8. This act takes effect upon approval by the Governor. /

Renumber sections to conform.

Amend title to conform.

Majority favorable. Minority unfavorable.

W. GREG RYBERG JOHN C. LAND III

For Majority. For Minority.

A BILL

TO AMEND SECTION 1-30-10(B) OF THE 1976 CODE, RELATING TO DEPARTMENTS OF STATE GOVERNMENT, TO PROVIDE THAT THE GOVERNING AUTHORITY OF THE DEPARTMENT OF TRANSPORTATION SHALL BE A BOARD AND A DIRECTOR; TO AMEND SECTION 1-30-105, RELATING TO THE DEPARTMENT OF TRANSPORTATION, TO PROVIDE THAT THE GOVERNING AUTHORITY OF THE DEPARTMENT OF TRANSPORTATION IS DIVIDED BETWEEN A DIRECTOR APPOINTED BY THE GOVERNOR AND A BOARD; TO AMEND ARTICLE 3, CHAPTER 1, TITLE 57, RELATING TO THE COMMISSION OF THE DEPARTMENT OF TRANSPORTATION, BY RECONSTITUTING THE COMMISSION AS A BOARD APPOINTED BY THE GOVERNOR WITH THE ADVICE AND CONSENT OF THE SENATE, TO PROVIDE FOR BOARD MEMBERSHIP, THE LENGTH OF TERMS THAT BOARD MEMBERS MAY SERVE, THE QUALIFICATIONS REQUIRED OF BOARD MEMBERS, THE MANNER IN WHICH BOARD MEMBERS ARE SCREENED TO VERIFY QUALIFICATIONS, ESTABLISH THE DISTRICTS FROM WHICH BOARD MEMBERS WILL BE APPOINTED, AND DEFINE THE POWERS AND DUTIES OF THE BOARD, TO PROVIDE BOARD MEMBERS MUST DISCHARGE THEIR INDIVIDUAL DUTIES IN GOOD FAITH, TO DEFINE A CONFLICT OF INTEREST TRANSACTION AND PROHIBIT BOARD MEMBERS FROM ENTERING INTO A CONFLICT OF INTEREST TRANSACTION, AND TO PROVIDE THAT THE ATTORNEY GENERAL MAY PROSECUTE A BOARD MEMBER INDIVIDUALLY FOR A BREACH OF DUTY OR ENTERING INTO A CONFLICT OF INTEREST TRANSACTION; TO AMEND CHAPTER 1, TITLE 57 BY ADDING ARTICLE 4, TO PROVIDE FOR A DEPARTMENT OF TRANSPORTATION REVIEW COMMITTEE TO SCREEN CANDIDATES FOR MEMBERSHIP ON THE BOARD TO DETERMINE WHETHER THE CANDIDATES MEET THE QUALIFICATIONS SET FORTH IN THIS ACT, TO ESTABLISH THE COMPOSITION OF THE REVIEW COMMITTEE AND MANNER IN WHICH COMMITTEE MEMBERS ARE APPOINTED TO SERVE ON THE COMMITTEE, TO ESTABLISH THE ROTATION OF THE COUNTIES WITHIN EACH DISTRICT FROM WHICH CANDIDATES MAY ORIGINATE, TO ESTABLISH THE PROCESS BY WHICH THE PUBLIC IS NOTIFIED OF AN OPEN SEAT ON THE BOARD, TO PROVIDE AN APPROPRIATE TIME WHEN A CANDIDATE MAY FILE A NOTICE OF INTENTION TO SEEK A SEAT ON THE BOARD, TO ESTABLISH THE PARAMETERS OF THE INVESTIGATION OF A CANDIDATE'S QUALIFICATIONS AND THE MANNER IN WHICH THE INVESTIGATION IS TO BE CONDUCTED, TO PROVIDE THAT QUALIFIED CANDIDATES, NOT TO EXCEED THREE, MUST BE NOMINATED TO SERVE ON THE BOARD, TO PROVIDE FOR A STAFF TO BE UTILIZED BY THE COMMITTEE, TO PROVIDE THAT COMMITTEE MEMBERS MAY RECEIVE A PER DIEM AND BE REIMBURSED FOR EXPENSES ASSOCIATED WITH SERVICE ON THE COMMITTEE; TO AMEND SECTION 57-1-410, TO PROVIDE THAT THE GOVERNOR MUST APPOINT THE DIRECTOR OF THE DEPARTMENT OF TRANSPORTATION WITH THE ADVICE AND CONSENT OF THE SENATE, TO PROVIDE THAT THE DIRECTOR SERVES AT THE PLEASURE OF THE GOVERNOR, TO PROVIDE FOR A COMPREHENSIVE STUDY OF CERTAIN PROJECTS BEFORE THEY MAY BE INCLUDED IN THE STATE TRANSPORTATION IMPROVEMENT PLAN, TO MAINTAIN A RANKING OF THE PROJECTS, AND TO EVALUATE ON AN ON-GOING BASIS THE MOST COST EFFECTIVE WAYS TO PROMOTE ECONOMIC DEVELOPMENT BY TARGETING TRANSPORTATION INFRASTRUCTURE INVESTMENTS; TO AMEND CHAPTER 3, TITLE 57, BY ADDING SECTION 57-3-800, TO PROVIDE THAT PUBLIC HEARINGS MUST BE HELD IN EACH COUNTY AFFECTED BY A PROPOSED PROJECT TO INCREASE HIGHWAY CAPACITY WITH AN ESTIMATED TOTAL CONSTRUCTION COST IN EXCESS OF FIFTY MILLION DOLLARS; TO AMEND SECTION 57-1-10, TO DEFINE BOARD; TO AMEND SECTION 57-1-30, TO PROVIDE THAT THE BOARD MUST APPROVE THE STATEWIDE MASS TRANSIT SYSTEM, TO PROVIDE THAT THE BOARD MUST GIVE ITS PRIOR APPROVAL TO PLANNING AND CONSTRUCTION PROJECTS AND THE IMPLEMENTATION OF THE STATEWIDE MASS TRANSIT SYSTEM; TO AMEND SECTION 57-3-40(A), TO PROVIDE THAT THE BOARD MUST APPROVE THE GENERAL MASS TRANSIT PROGRAM BEFORE IT IS IMPLEMENTED, TO AMEND SECTION 57-3-110(1), TO PROVIDE THAT THE DEPARTMENT'S DUTY TO LAY OUT, BUILD, AND MAINTAIN PUBLIC HIGHWAYS AND BRIDGES IS SUBJECT TO BOARD APPROVAL, TO PROVIDE THAT THE BOARD MUST APPROVE EXPENDITURES OF FUNDS FOR PROJECTS THAT REQUIRE THE DEPARTMENT TO ENTER INTO PARTNERSHIP AGREEMENTS WITH POLITICAL SUBDIVISIONS TO BUILD ROADS AND BRIDGES; AND TO AMEND SECTION 57-5-1330(1), TO PROVIDE THAT THE BOARD MUST APPROVE THE DESIGNATION, ESTABLISHMENT, PLAN, IMPROVEMENT, AND CONSTRUCTION OF TURNPIKES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 1-30-10(B) of the 1976 Code is amended to read:

"(B)(1) The governing authority of each department shall be either:

(i) a director, and in the case of the Department of Commerce, the secretary, who must be appointed by the Governor with the advice and consent of the Senate, subject to removal from office by the Governor pursuant to provisions of Section 1-3-240; or,

(ii) a seven member board to be appointed and constituted in a manner provided for by law; or,

(iii) in the case of the Department of Agriculture and the Department of Education, the State Commissioner of Agriculture and the State Superintendent of Education, respectively, elected to office under the Constitution of this State.; or

(iv) in the case of the Department of Transportation, a board provided in Section 57-3-310, as amended, and a director appointed by the Governor provided in Section 57-1-410, as amended."

SECTION 2. Section 1-30-105 of the 1976 Code is amended to read:

"Section 1-30-105. (A) Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Transportation to be initially divided into divisions for Mass Transit, Construction and Maintenance, Engineering and Planning, Finance and Administration; provided, however, that the State Highway Commission as constituted on June 30, 1993, under the provisions of Title 56, shall be the governing authority for the department until February 15, 1994, or as soon as its successors are elected or appointed and qualified, whichever is later:

Department of Highways and Public Transportation, except Motor Vehicle Division and State Highway Patrol, formerly provided for at Section 56-1-10, et seq.

(B) Notwithstanding the provisions of subsection (A) of this section, the governing authority of the Department of Transportation shall be the board, provided in Section 57-1-310, as amended, and the director, provided in Section 57-1-410, as amended.

SECTION 3. Article 3, Chapter 1, Title 57 of the 1976 Code is amended to read:

"ARTICLE 3

~~COMMISSION~~ BOARD OF THE DEPARTMENT OF TRANSPORTATION

~~Section 57-1-320.~~ ~~(A)~~ A county that is divided among two or more Department of Transportation districts, for purposes of electing a commission member, is deemed to be considered in the district which contains the largest number of residents from that county.

The delegation must be organized by the election of a chairman and a secretary, and the delegations of each congressional district shall adopt such rules as they consider proper to govern the election. Any absentee may vote by written proxy. When the election is completed, the chairman and the secretary of the delegation shall immediately transmit the name of the person elected to the Secretary of State who shall issue to the person, after he has taken the usual oath of office, a certificate of election as commissioner. The Governor shall thereupon issue a commission to the person, and pending the issuance of the commission the certificate of election is sufficient warrant to the person to perform all of the duties and functions of his office as commissioner. Each commissioner shall serve until his successor is elected and qualified.

~~Section 57-1-330.~~ ~~(A)~~ Beginning February 15, 1994, commissioners must be elected by the legislative delegation of each congressional district. For the purposes of electing a commission member, a legislator shall vote only in the congressional district in which he resides. All commission members must serve for a term of office of four years which expires on February fifteenth of the appropriate year. Commissioners shall continue to serve until their successors are elected and qualify, provided that a commissioner may only serve in a hold-over capacity for a period not to exceed six months. Any vacancy occurring in the office of commissioner shall be filled by election in the manner provided in this article for the unexpired term only. No person is eligible to serve as a commission member who is not a resident of that district at the time of his appointment, except that the at-large commission member may be appointed from any county in the State regardless of whether another commissioner is serving from that county. Failure by a commission member to maintain residency in the district for which he is elected shall result in the forfeiture of his office. The at-large commission member, upon confirmation, shall serve as chairman of the commission.

~~(B)~~ ~~The terms of the initial members of the commission appointed from congressional districts are as follows:~~

~~(1)~~ ~~commission members appointed to represent odd-numbered congressional districts--two years; and~~

~~(2)~~ ~~commission members appointed to represent even-numbered congressional districts--four years.~~

~~(C)~~ ~~The at-large commissioner shall serve at the pleasure of the Governor.~~

Section 57-1-340. Each commission member, within thirty days after his election or appointment, and before entering upon the discharge of the duties of his office, shall take, subscribe, and file with the Secretary of State the oath of office prescribed by the Constitution of the State.

~~Section 57-1-350.~~ ~~(A)~~ ~~The commission may adopt an official seal for use on official documents of the department.~~

~~(B)~~ ~~The commission shall adopt its own rules and procedures and may select such additional officers to serve such terms as the commission may designate.~~

~~(C)~~ ~~Commissioners must be reimbursed for official expenses as provided by law for members of state boards and commissions as established in the annual general appropriation act.~~

Section 57-1-310. (A)(1) There is hereby created the Board of the Department of Transportation.

(2) The board shall be composed of one member from each Department of Transportation Board District, appointed by the Governor, with the advice and consent of the Senate, from among candidates nominated by the Department of Transportation Board Review Committee.

(3) Except as otherwise provided in this section:

(a) Each member of the board shall serve one term of five years or until his successor has been appointed and qualified; provided, that no board member may serve in a hold over capacity for more than six months after the expiration of his term; and

(b) A member of the board may not be reappointed to serve on the board.

(4) In the event of a vacancy on the board due to death, resignation, or otherwise, the Governor must appoint the board member's successor, with the advice and consent of the Senate, and the successor-board member shall hold office for the unexpired term. If the unexpired term is less than two years, the board member may be reappointed to serve one complete term immediately following the unexpired term for which he was originally appointed to complete.

(5) Board members may be removed by the Governor for cause, as established in Section 1-3-240(C).

(6) No member of the General Assembly shall be eligible for appointment to the board during his term of office.

(B) Candidates for appointment to the board must be screened by the Department of Transportation Board Review Committee and be found qualified as meeting the minimum requirements contained in subsection (C) of this section before being nominated for appointment by the Governor. The review committee must submit a written report to the Clerk of the Senate setting forth its findings as to the qualifications of each candidate. A candidate must not serve on the board, even in an interim capacity, until he is screened and found qualified by the review committee.

(C) Each board member must possess the education, abilities, and experience that allow him to make valuable contributions to the conduct of the board's business, including, but not limited to:

(1) a general knowledge of the history, purpose, and operations of the Department of Transportation and the responsibilities of being a board member;

(2) the ability to interpret legal and financial documents and information so as to further the activities and affairs of the department;

(3) with the assistance of counsel, the ability to understand and apply federal and state laws, rules, and regulations;

(4) with the assistance of counsel, the ability to understand and apply judicial decisions as they relate to the activities and affairs of the department;

(5) a baccalaureate or more advanced degree from:

(a) a recognized institution of higher learning requiring face-to-face contact between its students and instructors prior to the completion of the academic program;

(b) an institution of higher learning that has been accredited by a regional or national accrediting body; or

(6) a background of substantial duration and expertise in at least one of the following:

(a) transportation issues;

(b) finance;

(d) engineering; or

(e) law.

(D) Beginning in 2007, board members must be appointed to staggered terms. In 2007, board members representing the second, fourth, and sixth districts must be appointed to terms that end January 31, 2010, and until their successors are appointed and qualify. Thereafter, board members representing the second, fourth, and sixth districts must be appointed to terms of five years and until their successors are appointed and qualify. In 2007, the board members representing the first, third, fifth, and seventh districts must be appointed to terms ending on January 31, 2012, and until their successors are appointed and qualify. Thereafter, board members representing the first, third, fifth, and seventh districts must be appointed to terms of five years and until their successors are appointed and qualify. However, under no circumstances may a member serve in a hold over capacity for more than six months after the expiration of his term.

(E) The board members are entitled to such mileage, subsistence, and per diem as authorized by law for members of boards, committees, and commissions while in the performance of the duties for which they are appointed. These expenses shall be paid from the general fund of the State on warrants duly signed by the chairman of the board and payable by the authorities from which they are appointed.

Section 57-1-320. (A) Board members shall be appointed from Department of Transportation Board Districts comprised of counties grouped in the following manner:

District 1. Aiken, Kershaw, Lee, Lexington, Richland, and Sumter

District 2. Abbeville, Edgefield, Greenwood, Laurens, McCormick, Newberry, and Saluda;

District 3. Anderson, Greenville, Oconee, Pickens, and Spartanburg;

District 4. Cherokee, Chester, Chesterfield, Fairfield, Lancaster, Union and York;

District 5. Darlington, Dillon, Florence, Georgetown, Horry, Marion, Marlboro, and Williamsburg;

District 6. Beaufort, Berkeley, Charleston, Colleton, Dorchester, and Jasper;

District 7. Allendale, Bamberg, Barnwell, Calhoun, Clarendon, Hampton and Orangeburg.

(B) Board member candidates must be selected from among the residents of one county in each district. The county from which candidates are selected must rotate alphabetically among the counties in the district. No county may have a board member for two successive terms except as provided in Section 57-1-310(A)(4).

Section 57-1-330. (A) A board member shall discharge his duties as a member of the board:

(1) in good faith;

(2) with the care an ordinarily prudent person, in a like position, would exercise under similar circumstances; and

(3) in a manner he reasonably believes to be in the best interests of the board and the department. As used in this chapter, 'best interests' means a balancing of the following:

(a) preservation of the financial integrity of the department to design, construct, and maintain a safe and serviceable state highway system;

(b) the impact individual road projects have on directly affected communities; and

(c) exercise of the powers of the board set forth in Section 57-1-360, in accordance with good business practices and the requirements of applicable federal or state laws and regulations.

(B) In discharging his duties, a board member is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:

(1) one or more officers or employees of the department whom the board member reasonably believes to be reliable and competent in the matters presented;

(2) legal counsel, public accountants, or other persons as to matters the board member reasonably believes are within the person's professional or expert competence; or

(3) a committee of board members of which he is not a member, if the board member reasonably believes the committee merits confidence.

(C) A board member is not acting in good faith if he has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (B) unwarranted.

(D) A board member is not liable for any action taken as a board member, or any failure to take any action, if he performed the duties of his office in compliance with this section.

(E) An action against a board member for failure to perform the duties imposed by this section must be commenced within three years after the cause of action has occurred, or within two years after the time when the cause of action is discovered or should reasonably have been discovered, whichever occurs sooner. This limitations period does not apply to breaches of duty that have been concealed fraudulently.

Section 57-1-340. (A) A conflict of interest transaction is a transaction with the department in which a board member has a direct or indirect interest. A conflict of interest transaction is not voidable by the board solely because of the board member's interest in the transaction if any one of the following is true:

(1) the material facts of the transaction and the board member's interest were disclosed or known to the board member or a committee of the board, and the board or a board committee authorized, approved, or ratified the transaction; or

(2) the transaction was fair to the department.

If item (1) has been complied with, the burden of proving unfairness of any transaction covered by this section is on the party claiming unfairness. If item (1) has not been complied with, the party seeking to uphold the transaction has the burden of proving fairness.

(B) For purposes of this section, a board member has an indirect interest in a transaction if, during his term or for two years prior to or after the expiration of his term:

(1) another entity in which he has a material financial interest or in which he is a general partner is a party to the transaction; or

(2) another entity of which he is a board member, officer, or trustee is a party to the transaction and the transaction is or should be considered by the board.

(C) For purposes of subsection (A)(1), a conflict of interest transaction is authorized, approved, or ratified if it receives the affirmative vote of a majority of the board members or a majority of the members of a board committee who have no direct or indirect interest in the transaction, but a transaction may not be authorized, approved, or ratified under this section by a single board member. If a majority of the board members who have no direct or indirect interest in the transaction vote to authorize, approve, or ratify the transaction, a quorum is present for the purpose of taking action under this section. The presence of, or a vote cast by, a board member with a direct or indirect interest in the transaction does not affect the validity of any action taken under subsection (A)(1), if the transaction is otherwise authorized, approved, or ratified as provided in that subsection.

Section 57-1-350. The Attorney General, on behalf of the people of South Carolina, has exclusive authority to bring suit against board members asserting a breach of any duty arising under Sections 57-1-330 and 57-1-340. If it is proven that a board member violated the provisions of Section 57-1-330 or Section 57-1-340, he is subject to liability under the same theories of liability as for a breach of duty by a corporate director pursuant to Title 33 and South Carolina common law. Liability under this section shall be limited to disgorgement of any ill-gotten gain and damages of not more than fifty thousand dollars per occurrence and reasonable attorney's fees and costs. The court may also grant appropriate equitable relief. Any remedy granted or damages awarded pursuant to this section do not relieve a board member from criminal liability or preclude criminal prosecution.

Section 57-1-360. (A) In addition to all other powers and duties provided by law, the board:

(1) must approve the state transportation improvement plan prior to its implementation, including any modifications, amendments, or annual adjustments to the plan, including, but not limited to the schedule of priorities for all major construction projects and funds allocated to complete those projects. The schedule of priorities must be determined by an evaluation process that ranks projects. The evaluative criteria used to rank projects must include the results of the project evaluation studies required by Section 57-3-790, accident rate, volume to capacity ratio, truck traffic, and pavement quality index or bridge quality index; and

(2) must approve the statewide mass transit system plan prior to its implementation, including any modifications, amendments, or annual adjustments to the plan.

(B) For the purposes of this section:

(1) 'accident rate' means the number of automobile accidents per million vehicle miles traveled upon a roadway segment;

(2) 'volume to capacity ratio' means the number of vehicles traveling per day, or the projected traffic for new location projects, on a roadway divided by the assigned capacity for the existing travel lanes;

(3) 'truck traffic' means the actual number of trucks passing through the roadway or bridge analysis segment;

(4) 'pavement quality index' means a measurement of roughness, cracking, rutting, or other deterioration upon a roadway segment; and

(5) 'bridge quality index' means a measurement of the deterioration of a bridge.

Section 57-1-370. Each board member, within thirty days after his appointment, and before entering upon the discharge of the duties of his office, shall take, subscribe, and file with the Secretary of State the oath of office prescribed by the state constitution.

Section 57-1-380. (A) The board may adopt an official seal for use on official documents of the department.

(B) The board must adopt its own rules and procedures, elect a chairman, and may select such additional officers to serve such terms as the board may designate."

SECTION 4. Chapter 1, Title 57 of the 1976 Code is amended by adding:

"ARTICLE 4

THE DEPARTMENT OF TRANSPORTATION BOARD REVIEW COMMITTEE

Section 57-1-385. There exists a committee to be known as the Department of Transportation Board Review Committee that must exercise the powers and fulfill the duties described in this article.

Section 57-1-390. (A) The review committee shall be composed of ten members, five of whom shall be members of the House of Representatives, including the Speaker of the House, or his designee, the Majority Leader, or his designee, the Minority Leader, or his designee, the Chairman of the Ways and Means Committee, or his designee, and the Chairman of the Education and Public Works Committee, or his designee. Five members of the review committee shall be members of the Senate, including the President Pro Tempore, or his designee, the Majority Leader, or his designee, the Minority Leader, or his designee, the Chairman of the Finance Committee, or his designee, and the Chairman of the Transportation Committee, or his designee. The Senate Majority Leader, or his designee, shall serve as chairman.

(B) The review committee must meet as soon as practicable after appointment and organize itself by adopting its own rules and procedures and electing such officers as the review committee may consider necessary. Thereafter, the review committee must meet at least annually at the call of the chairman or by a majority of the members. A majority of members of the review committee constitutes a quorum.

(1) to review candidates for appointment to the Board of the Department of Transportation to determine whether the candidates meet the qualifications set forth in Section 57-1-310(C), provided, that the review committee may find a candidate qualified although the candidate does not meet one or more of the qualifications contained in Section 57-1-310(C) if three-fourths of the review committee vote to qualify the candidate and provide written justification of the decision in its report;

(2) to nominate all qualified candidates, not to exceed three, for each open seat on the board.

(D) Unless the review committee finds a candidate qualified and nominates the candidate for a seat on the board, the candidate may not be appointed to the board.

Section 57-1-395. Whenever the Governor must appoint a person to serve on the board, the review committee must first conduct its screening in the following manner:

(1) The review committee must forward a notice of the vacancy on the board to:

(a) three newspapers of general circulation within the district with a request that it be published at least once a week for four consecutive weeks;

(b) any person who has informed the committee that he desires to be notified of the vacancy; and

The review committee may not accept a notice of intention to seek the office from any candidate until the review committee certifies to the clerks of both houses of the General Assembly that the proper notices, required by this section, have been published or provided or until the time for the publication of the notices has expired.

The cost of the notification process required by this section must be absorbed and paid from the approved accounts of both houses as contained in the annual appropriations act.

(2) Any person wishing to be appointed to serve on the board shall file a notice of intention to seek the office with the review committee. Upon receipt of the notice of intention, the review committee shall begin to conduct an investigation of the candidate, as it considers appropriate and may utilize the services of any agency of state government to assist in the investigation. The agency shall, upon request, cooperate fully with the review committee.

(3) Upon completion of the investigation, the chairman of the review committee shall schedule a public hearing concerning the qualifications of the candidates. Any person who desires to testify at the hearing, including candidates, must furnish a written statement of his proposed testimony to the chairman of the review committee. These statements shall be furnished no later than forty-eight hours prior to the date and time set for the hearing. The review committee shall determine the persons who shall testify at the hearing. All testimony, including documents furnished to the review committee, shall be submitted under oath and persons knowingly furnishing false information either orally or in writing shall be subject to the penalties provided by law for perjury and false swearing. During the course of the investigation, the review committee may schedule an executive session at which each candidate, and other persons whom the committee wishes to interview, may be interviewed by the review committee on matters pertinent to the candidate's qualification for the office to be filled. The review committee shall render its tentative findings as to whether the candidate is qualified to serve on the board and its reasons for making the findings within a reasonable time after the hearing.

As soon as possible after the completion of the hearing, a verbatim copy of the testimony, documents submitted at the hearing, and findings of fact shall be transcribed and published in the journals of both houses or otherwise made available in a reasonable number of copies to the members of both houses and a copy must be furnished to each candidate.

A candidate may withdraw at any stage of the proceedings, and in this event no further inquiry, report on, or consideration of his candidacy shall be made.

(4) All records, information, and other material that the review committee has obtained or used to make its findings of fact, except materials, records, and information presented under oath at the public hearing, shall be kept strictly confidential. After the review committee has reported its findings of fact, or after a candidate withdraws his name from consideration, all records, information, and material required to be kept confidential must be destroyed.

(5) The review committee in the discharge of its duties may administer oaths and affirmations, take depositions, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records considered necessary in connection with the investigation of the review committee.

No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda, or other records before the review committee on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture. However, no individual shall be prosecuted or subjected to any criminal penalty based upon testimony or evidence submitted or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that the individual so testifying shall not be exempt from prosecution and punishment for perjury and false swearing committed during testimony.

In case of contumacy by any person or refusal to obey a subpoena issued to any person, any circuit court of this State or circuit judge thereof within the jurisdiction of which the person guilty of contumacy or refusal to obey is found, resides, or transacts business, upon application by the review committee may issue to the person an order requiring him to appear before the review committee to produce evidence, if so ordered or to give testimony concerning the matter under investigation. Any failure to obey an order of the court may be punished as contempt. Subpoenas shall be issued in the name of the review committee and shall be signed by the review committee chairman. Subpoenas shall be issued to those persons as the review committee may designate.

(6) The privilege of the floor in either house of the General Assembly may not be granted to any candidate, or any immediate family member of a candidate unless the family member is serving in the General Assembly, during the time the candidate's application is pending before the review committee and during the time his appointment is being considered by the Senate.

Section 57-1-400. (A) The review committee must use clerical and professional employees of the General Assembly for its staff, who must be made available to the review committee.

(B) The review committee may employ or retain other professional staff, upon the determination of the necessity for other staff by the review committee.

Section 57-1-405. The review committee members are entitled to such mileage, subsistence, and per diem as authorized by law for members of boards, committees, and commissions while in the performance of the duties for which they are appointed. These expenses must be paid from the general fund of the State on warrants duly signed by the chairman of the review committee and payable by the authorities from which they are appointed."

SECTION 5. Section 57-1-410 of the 1976 Code is amended to read:

"Section 57-1-410. (A) The ~~commission~~ Governor shall ~~employ~~ appoint a director with the advice and consent of the Senate who shall serve at the pleasure of the ~~commission~~ Governor.

(B) A person appointed to ~~this position~~ serve as director shall be ~~a citizen of practical and successful business and executive ability who has a knowledge in the field of transportation~~ a proven, effective administrator who, by a combination of education and experience, clearly possesses a broad knowledge of the administrative, financial, and technical aspects of the development, operation, and regulation of transportation systems and facilities or comparable systems and facilities.

(C) The director shall receive such compensation as may be established under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriation act."

SECTION 6. Chapter 3, Title 57 of the 1976 Code is amended by adding:

"Section 57-3-790. (A) Prior to including any project in the State Transportation Improvement Plan to:

(1) build or expand any primary or secondary highway, the department must first obtain from the local planning commission in each county that is affected by the project, written certification that the project is consistent with the local comprehensive plan;

(2) increase highway capacity with an estimated total construction cost in excess of fifty million dollars, including all components or segments of the highway, the department must conduct a comprehensive study to evaluate the following:

(a) the demonstrated existing and anticipated future need for the project including the existing and projected traffic volumes, congestion relief, safety, and other bona fide transportation purposes;

(b) the project's anticipated contribution to the State and local economic development;

(c) a life-cycle analysis of the project, including estimated maintenance and repair costs over the expected life of the project; and

(d) alternatives to the project, including functional alternatives such as land use strategies to minimize the number and length of vehicle trips, improved signalization, increased highway network connectivity, and transit and transportation demand strategies, including projects that may be eligible for federal funding under the Congestion Mitigation and Air Quality Improvement Program, 23 U.S.C. 149.

The study shall be conducted in conjunction with each Metropolitan Planning Organization and Rural Planning Organization affected by the project and shall be used by each affected organization when developing priority lists for submission to the department.

(B) The department must develop and maintain a list of all proposed major highway capacity expansion projects in the State, ranking them in order of priority for future construction by highway district based on evaluative criteria used to rank projects pursuant to 57-1-360. The ranking shall establish each project's relative priority for project funding in the State Transportation Improvement Program. The project ranking established in this section shall also be used by the State Infrastructure Bank in its consideration of projects to be funded for construction. The board must approve the project ranking plan before the provisions of this section may be implemented.

(C) The department shall evaluate on an on-going basis, including the preparation of an annual report, the most cost-effective ways to promote economic development by targeting transportation infrastructure investments to serve existing and demonstrated future transportation needs while avoiding adverse impacts to natural and recreational areas designated and administered by federal, state, or local agencies.

Section 57-3-800. (A) The department shall conduct a public hearing in each county affected by any proposed project to increase highway capacity with an estimated total construction cost in excess of fifty million dollars. The hearing must include the opportunity for interested members of the public to address the panel.

(B) The board member, or his designee, from the district within which the project would be located must attend the hearing.

(C) The comments received by the department during the public comment process shall be included and addressed in the study conducted pursuant to Section 57-3-790."

SECTION 7. Section 57-1-10 of the 1976 Code is amended to read:

"Section 57-1-10: For the purposes of this title, the following words, phrases, and terms are defined as follows:

(1) "~~Commission~~ Board" means the ~~administrative and governing body of the~~ Board of the Department of Transportation established pursuant to Section 57-1-310."

(2) "Department" means the Department of Transportation (DOT).

(3) "Director" means the chief administrative officer of the Department of Transportation."

SECTION 8. Section 57-1-30 of the 1976 Code is amended to read:

"Section 57-1-30. (A) The department shall have as its functions and purposes the systematic planning, construction, maintenance, and operation of the state highway system and the development of a statewide mass transit system that is consistent with the needs and desires of the public. Construction of highway projects and the implementation of the statewide mass transit system by the department are subject to prior approval of the board.

SECTION 8. Section 57-3-40(A) of the 1976 Code is amended to read:

"Section 57-3-40. (A) The Division of Mass Transit must develop and coordinate a general mass transit program and policy for the State in order to encourage the efficient development, implementation, operation, evaluation, and monitoring of mass transit systems, both public and private. The board must approve the general mass transit program before it is implemented."

SECTION 9. Section 57-3-110(1) of the 1976 Code is amended to read:

"Section 57-3-110. The Department of Transportation shall have the following duties and powers:

(1) subject to the board's approval pursuant to Section 57-1-360, lay out, build, and maintain public highways and bridges, including the exclusive authority to establish design criteria, construction specifications, and standards required to construct and maintain highways and bridges;"

SECTION 10. Section 57-3-200 of the 1976 Code is amended to read:

"Section 57-3-200. From the funds appropriated to the Department of Transportation and from any other sources which may be available to the Department and subject to any board approval required by Section 57-1-360, the Department of Transportation may expend such funds as it deems necessary to enter into partnership agreements with political subdivisions including authorized transportation authorities, and private entities to finance, by tolls and other financing methods, the cost of acquiring, constructing, equipping, maintaining and operating highways, roads, streets and bridges in this State. The provisions of this Section must not be construed to confer upon the Department of Transportation or political subdivisions any power to finance by tolls or other means the acquisition, construction, equipping, maintenance or operation which the Department of Transportation or political subdivisions does not possess under other provisions of this Code."

SECTION 11. Section 57-5-1330(1) of the 1976 Code is amended to read:

"Section 57-5-1330. (1) ~~The~~ Subject to approval by the board, the department may designate, establish, plan, improve, and construct~~, maintain, operate, and regulate~~ turnpike facilities as a part of the state highway system or any federal aid system whenever the department determines the traffic conditions, present or future, justify the facilities, except that the department may not designate as a turnpike facility any highway, road, bridge, or other transportation facility funded in whole or in part by a local option sales and use tax as provided in Chapter 37 of Title 4. The department may utilize funds available for the maintenance of the state highway system for the maintenance of any turnpike facility financed pursuant to this article. The department must operate, maintain, and regulate any turnpike facilities constructed pursuant to this section."

SECTION 12. References in the 1976 Code to the "Commission of the Department of Transportation" or references to "commission" that refer to the administrative and governing body of the Department of Transportation, mean "Board of the Department of Transportation" or "board", as appropriate, and references to "Department of Transportation Commissioner" mean "member of the Board of the Department of Transportation" or "board member" as appropriate. The Code Commissioner shall change references in the 1976 Code to conform with this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.

SECTION 13. The General Assembly finds that the sections presented in this act constitute one subject as required by Article III, Section 17 of the South Carolina constitution, in particular finding that each change and each topic relates directly to or in conjunction with other sections to the subject of Department of Transportation restructuring as clearly enumerated in the title.

SECTION 14. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION 15. (A) The repeal or amendment by this act of any law, whether temporary or permanent, does not affect pending actions, rights, duties, or liabilities founded on it, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision expressly provides it. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws. Any state agency, board, commission, or council to which are transferred the powers, duties, and functions of any state agency, board, commission, or council relating to the pending proceeding must be substituted as a party in interest.

(C) No suit, action, or other proceeding lawfully commenced by or against any state agency, board, commission, or council or officer of the State in its or his official capacity or in relation to the discharge of its or his official duties shall abate by reason of the taking effect of this act but the court may allow, on motion or supplemental complaint filed at any time within twelve months after this act takes effect, showing a necessity for a survival of such suit, action, or other proceeding to obtain an adjudication of the questions involved, the same to be maintained by or against the successor of the state agency, board, commission, or council or officer under the act or, if there be no such successor, against such state agency, board, commission, or council or officer as the Governor shall designate.

SECTION 16. (A) This act takes effect upon approval by the Governor.

(B) The Department of Transportation Board Review Committee established pursuant to Section 57-1-385 must meet within ninety days of the effective date of this act to screen and nominate candidates to serve as initial board members. The initial board members appointed by the Governor shall serve in an interim capacity pending confirmation by the Senate. If the appointment is made while the Senate is not is session, then the Governor must report the appointment of the initial members to the Senate and must forward a formal appointment during the 2008 regular session. All interim appointments made pursuant to this section must be transmitted to the Senate pursuant to Section 1-3-215. If the Senate does not advise and consent to an interim appointment of an initial board member by sine die of the 2008 session, the office shall be vacant and the interim appointment shall not serve in hold over status, notwithstanding any other provision of law to the contrary. A subsequent interim appointment of a different person to a vacancy created by a failure of the Senate to grant confirmation to the original interim appointment of an initial board member shall expire on the second Tuesday in January following the date of such subsequent interim appointment and the office shall be vacant.

(C) No later than thirty days after the final initial board member is appointed, the board must meet and organize. Following the initial board meeting, the board chairman must immediately file with the Secretary of State certification the board has met and organized. The Department of Transportation Commission is abolished effective on the date that the certification required by this subsection is filed with the Secretary of State and the powers, duties, and functions of the commission are devolved upon the board.

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