Reference is to the bill as introduced.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Section 8-13-310 of the 1976 Code, as last amended by Act 279 of 2012, is further amended to read:
"Section 8-13-310.
(A) The State
Ethics Commission as constituted under law in effect before July
1, 1992, is reconstituted to continue in existence with the
appointment and qualification of the at-large members as
prescribed in this section and with the changes in duties and
powers as prescribed in this chapter. On July 1, 1993, when the
duties and powers given to the Secretary of State in Chapter 17
of Title 2 are transferred to the State Ethics Commission, the
Code Commissioner is directed to change all references to
"this chapter" in Article 3 of Chapter 13 of Title 8
to "this chapter and Chapter 17 of Title 2".
(B)
There is created the State Ethics Commission
composed of nine members appointed by the Governor, upon the
advice and consent of the General Assembly. One member shall
represent each of the seven congressional districts, and two
members must be appointed from the State at large. No member of
the General Assembly or other public official must be eligible
to serve on the State Ethics Commission. The Governor shall make
the appointments based on merit regardless of race, color,
creed, or gender and shall strive to assure that the membership
of the commission is representative of all citizens of the State
of South Carolina.
(C)
The terms of the members are for five years and
until their successors are appointed and qualify. The members of
the State Ethics Commission serving on this chapter's effective
date may continue to serve until the expiration of their terms.
These members may then be appointed to serve one full five-year
term under the provisions of this chapter.
Members representing the
first, third, and sixth congressional districts on this
chapter's effective date are eligible to be appointed for a full
five-year term in or after 1991. Members currently representing
the second, fourth, and fifth congressional districts on this
chapter's effective date are eligible to be appointed for a full
five-year term in or after 1993. The initial appointments for
the at-large members of the commission created by this chapter
must be for a one-, two-, or three-year term, but these at-large
members are eligible subsequently for a full five-year term.
Under this section, the at-large members of the commission are
to be appointed to begin service on or after July 1, 1992.
Vacancies must be filled in the manner of the original
appointment for the unexpired portion of the term only. Members
of the commission who have completed a full five-year term are
not eligible for reappointment.
(D)
The commission shall elect a chairman, a
vice-chairman, and such other officers as it considers
necessary. Five members of the commission shall constitute a
quorum. The commission must adopt a policy concerning the
attendance of its members at commission meetings. The commission
meets at the call of the chairman or a majority of its members.
Members of the commission, while serving on business of the
commission, receive per diem, mileage, and subsistence as is
provided by law for members of state boards, committees, and
commissions. (A)
There is created the State Ethics Commission which
beginning July 1, 2015, shall be composed of the members
provided for in this subsection:
(1)
four members must be appointed by the Governor,
no more than two of whom are associated with the appointing
Governor's political party;
(2)
four members must be elected by the Supreme
Court, each of whom must not be actively serving judges of any
court of this State, including summary court judges or retired
judges sitting or permitted to sit as judges in the courts of
this State;
(3)
two members must be elected by the Senate with
one member being nominated by the majority political party in
the General Assembly and the other being nominated by the
largest minority party in the General Assembly; and
(4)
two members must be elected by the House of
Representatives with one member being nominated by the majority
political party in the General Assembly and the other being
nominated by the largest minority party in the General Assembly.
(B)(1)
The qualifications the appointing or electing
authorities shall consider for the appointees include, but are
not limited to:
(a)
ethical fitness;
(b)
character;
(c)
mental stability;
(d)
experience;
(e)
temperament; and
(f)
if the appointee has contributed to the election
campaign of the individual appointing him to the State Ethics
Commission within the previous four years.
(2)
Members shall be chosen based on merit. However,
in making appointments to the commission, the appointing
authorities shall ensure that race, color, gender, national
origin, and other demographic factors are considered to ensure
the geographic and political balance of the appointments, and
shall strive to assure that the membership of the commission
represents, to the greatest extent possible, all segments of the
population of this State.
(3)
The following are not eligible to serve on the
State Ethics Commission:
(a)
a member of the General Assembly;
(b)
a family member, as defined by Section
8-13-100(15), of a member of the General Assembly, the Governor,
or any member of the Supreme Court;
(c)
a person who registered as a lobbyist within
four years of being appointed to serve on the State Ethics
Commission;
(d)
a person who is under the jurisdiction of the
State Ethics Commission, the House of Representatives Ethics
Committee, or the Senate Ethics Committee; and
(e)
an actively serving judge of any court of this
State, including summary court judges, and any retired judge
sitting or permitted to sit in any court of this State.
(C) Any
member of the commission who has made a campaign contribution as
defined in Section 8-13-1300(7) or has any direct financial
relationship, including interest in a business, partnership or
LLC, with the respondent before the commission must recuse
themselves from all proceedings concerning that
respondent.
(D) The terms
of the members are for five years. The terms of the members
currently serving expire on June 30, 2015; however, a member who
is serving at that time may be appointed for a new five-year
term. For the initial appointments made by the Governor, two
must be for a term of two years, the third must be for a term of
four years, and the fourth must be for a full five-year term.
For the initial appointments made by the House of
Representatives and the Senate, one must be for a three-year
term and the other must be for a full five-year term. The
initial members who have served terms that are less than five
years are eligible to be reappointed for one full five-year
term. Vacancies must be filled in the manner of the original
appointment for the unexpired portion of the term only. Members
of the commission who have completed a full five-year term are
not eligible for reappointment and shall not serve on the
commission after their term expires.
(E) The
commission shall elect a chairman, a vice chairman, and such
other officers as it considers necessary. Seven members of the
commission constitute a quorum. The commission shall adopt a
policy concerning the attendance of its members at commission
meetings. The commission meets at the call of the chairman or a
majority of its members. Members of the commission, while
serving on business of the commission, receive per diem,
mileage, and subsistence as is provided by law for members of
state boards, committees, and commissions.
(F)(1) A
commission member appointed by the Governor may be removed from
office by the Governor for malfeasance, misfeasance,
incompetency, absenteeism, conflicts of interest, misconduct,
persistent neglect of duty in office, or incapacity, pursuant to
Section 1-3-240.
(2)
A commission member elected by the Senate or the
House of Representatives may be removed for malfeasance,
misfeasance, incompetency, absenteeism, conflicts of interest,
misconduct, persistent neglect of duty in office, or incapacity
upon a finding by two-thirds of the membership of the
appropriate body."
SECTION 2. A. The first paragraph of Section 8-13-320(9) of the 1976 Code, as last amended by Act 245 of 2008, is further amended to read:
"(9) to initiate
or receive complaints and make investigations, as provided in
item (10), of statements filed or allegedly failed to be filed
under the provisions of this chapter and Chapter 17,
of Title 2 and, upon complaint by an
individual, of an alleged violation of this chapter or Chapter
17, of Title 2 by a public official,
public member, or public employee except members or
staff, including staff elected to serve as officers of or
candidates for the General Assembly unless otherwise provided
for under House or Senate rules. Any person charged
with a violation of this chapter or Chapter 17,
of Title 2 is entitled to the administrative
hearing process contained in this section."
B. Section 8-13-320(10)(g) of the 1976 Code, as last amended by Act 1 of 2011, is further amended to read:
"(g) All
investigations, inquiries, hearings, and accompanying documents
must remain are confidential
until a finding of probable cause or dismissal unless
the respondent waives the right to confidentiality
and only may be released pursuant to this subsection. After a
finding of probable cause by a majority of the commission, the
following documents become public record: the complaint, the
response by the respondent, the notice of hearing, exhibits
introduced at a hearing, the commission'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. The respondent may waive the right to
confidentiality. The willful wilful
release of confidential information is a misdemeanor, and any
person releasing confidential information, upon conviction, must
be fined not more than one thousand dollars or imprisoned not
more than one year."
C. Section 8-13-320(10)(j) of the 1976 Code is amended to read:
"(j) If a hearing
is to be held, the respondent must be allowed to examine and
make copies of all evidence in the commission's possession
relating to the charges. The same discovery techniques which are
available to the commission must be equally available to the
respondent, including the right to request the commission to
subpoena witnesses or materials and the right to conduct
depositions as prescribed by subitem (f). A panel of three
commissioners must conduct a hearing in accordance with Chapter
23, of Title 1 (Administrative
Procedures Act), except as otherwise expressly provided. Panel
action requires the participation of the three panel members.
During a commission panel hearing conducted to determine whether
a violation of the chapter has occurred, the respondent must be
afforded appropriate due process protections, including the
right to be represented by counsel, the right to call and
examine witnesses, the right to introduce exhibits, and the
right to cross-examine opposing witnesses. All evidence,
including records the commission considers, must be offered
fully and made a part of the record in the proceedings. The
hearings must be held in executive session unless the
respondent requests an open hearing open to the
public."
D. Section 8-13-320(11) of the 1976 Code is amended to read:
"(11)(a) to
issue, upon request from persons covered by this chapter, and
publish formal advisory opinions on the requirements of
this chapter, based on real or hypothetical sets of
circumstances; provided, that an opinion rendered by the
commission or an opinion issued by the commission prior to
the effective date of this act, until amended or revoked, is
binding on the commission in any subsequent charges concerning
the person who requested the opinion and who acted in reliance
on it in good faith unless material facts were omitted or
misstated by the person in the request for the opinion.
Formal advisory opinions must be in writing and are
considered rendered when approved by five or
more a majority of the commission members
subscribing to the advisory opinion. Advisory opinions must be
made available to the public unless the commission, by majority
vote of the total membership of the commission, requires an
opinion to remain confidential. However, the identities of the
parties involved must be withheld upon request;
(b) the State
Ethics Commission may issue through its staff a written informal
advisory opinion, based on real or hypothetical sets of
circumstances, to a person or governmental entity within the
commission's jurisdiction upon that person's or governmental
entity's request. If raised in response to a complaint, the
commission shall consider whether the person who requested the
opinion or who is a member of the governmental entity who
requested the informal opinion and who is affected by the
circumstances described within the request for the informal
opinion, relied in good faith on a written informal advisory
opinion prior to making a probable cause
determination."
E. Section 8-13-320 of the 1976 Code, as last amended by Act 1 of 2011, is further amended by adding appropriately numbered items to read:
"( ) to initiate
upon the vote of a majority of the membership, and to receive
complaints against a member or staff of the appropriate house or
legislative caucus committee, or a candidate for the appropriate
house, alleging a violation of this chapter or Chapter 17, Title
2 and to conduct an investigation into the complaint pursuant to
Section 8-13-540;
( ) to provide a copy
of the complaint and accompanying materials to the Attorney
General if the commission finds that there is probable cause to
support the existence of criminal intent on the part of the
respondent when the violation occurred."
SECTION 3. Section 8-13-350 of the 1976 Code, as added by Act 248 of 1991, is amended to read:
"Section 8-13-350. When hired, filing for office, or appointed and upon assuming the duties of employment, office, or position in state government, a public official, public member, and public employee shall receive a brochure prepared by the State Ethics Commission describing the general application of this chapter. The brochure must be created and updated by the State Ethics Commission and the brochure must provide an outline of the enforcement structure in the Ethics Act, the filing deadlines provided in the Ethics Act, and a general overview of the duties and responsibilities of individuals under the Ethics Act. Upon receipt of the brochure, the receiving individual should sign a document memorializing his receipt of the brochure. This signed document should be transmitted to the appropriate supervisory agency for its retention."
SECTION 4. Section 8-13-530 of the 1976 Code, as last amended by Act 245 of 2008, is further amended to read:
"Section 8-13-530. Each ethics
committee shall:
(1)
ascertain whether a person has failed to comply fully and
accurately with the disclosure requirements of this chapter and
promptly notify the person to file the necessary notices and
reports to satisfy the requirements of this chapter;
(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, investigate possible
violations of a rule or breach of a privilege governing a
member or staff of the appropriate house, the alleged breach of
a rule governing a member of, legislative caucus committees for,
or a candidate, or staff for the appropriate house,
misconduct of a member or staff of, legislative caucus
committees for, or a candidate for the appropriate house, or a
violation of this chapter or Chapter 17 of Title 2.
Upon the filing of a complaint alleging a violation by a
member or staff of the appropriate house or legislative caucus
committee, or a candidate for the appropriate house, for a
violation of this chapter or Chapter 17, Title 2, except a
technical violation pursuant to Section 8-13-1170 or 8-13-1372,
the ethics committee shall refer the complaint to the State
Ethics Commission for an investigation pursuant to Section
8-13-540. The appropriate ethics committee shall investigate and
make determinations for technical violations of Section
8-13-1170 or 8-13-1372;
(4) receive and hear a
complaint which alleges a breach of a privilege governing a
member or staff of the appropriate house, the alleged breach of
a rule governing a member or staff of or candidate for the
appropriate house, misconduct of a member or staff of or
candidate for the appropriate house, or a violation of this
chapter or Chapter 17 of Title 2.;
(5) no complaint
may be accepted by the ethics committee or the State Ethics
Commission concerning a member of or candidate for the
appropriate house during the fifty-day period before an election
in which the member or candidate is a candidate. During
this fifty-day period, any person may petition the court of
common pleas alleging the violations complained of and praying
for appropriate relief by way of mandamus or injunction, or
both. Within ten days, a rule to show cause hearing must be
held, and the court must either dismiss the petition or direct
that a mandamus order or an injunction, or both, be issued. A
violation of this chapter by a candidate during this fifty-day
period must be considered to be an irreparable injury for which
no adequate remedy at law exists. The institution of an action
for injunctive relief does not relieve any party to the
proceeding from any penalty prescribed for violations of this
chapter. The court must award reasonable attorney's fees and
costs to the nonpetitioning party if a petition for mandamus or
injunctive relief is dismissed based upon a finding that the:
(i) petition is being presented for an improper purpose such as
harassment or to cause delay;
(ii) claims, defenses, and other legal contentions are not
warranted by existing law or are based upon a frivolous argument
for the extension, modification, or reversal of existing law or
the establishment of new law; and
(iii) allegations and other factual contentions do not have
evidentiary support or, if specifically so identified, are not
likely to have evidentiary support after reasonable opportunity
for further investigation or discovery.
Action on a complaint filed against a
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;
(5)(6)
obtain information and investigate
hear complaints as provided in Section 8-13-540 with
respect to any complaint filed pursuant to this chapter or
Chapter 17, of 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;
(6)(7)
administer or recommend sanctions appropriate to a
particular member, or staff of, or candidate
for, the appropriate house pursuant to Section
8-13-540, including the recovery of the value of anything
transferred or received in breach of the ethical standards,
or dismiss the charges; and
(7)(8) act as an
advisory body to the General Assembly and to individual members
of or candidates for the appropriate house on questions
pertaining to the disclosure and filing requirements of members
of or candidates for the appropriate house and to issue, upon
request from persons covered by this chapter and Chapter 17,
Title 2, and publish advisory opinions on the requirements of
these chapters."
SECTION 5. A. Section 8-13-540 of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:
"Section 8-13-540.
Unless otherwise provided for by House or Senate
rule, as appropriate, each ethics committee must conduct its
investigation of a complaint filed pursuant to this chapter or
Chapter 17 of Title 2 in accordance with this section.
(1) When a
complaint is filed with or by the ethics committee, a copy must
promptly be sent to the person alleged to have committed the
violation. If the ethics committee determines the complaint does
not allege facts sufficient to constitute a violation, the
complaint must be dismissed and the complainant and respondent
notified. If the ethics committee finds that the complaining
party wilfully filed a groundless complaint, the finding must be
reported to appropriate law enforcement authorities. The wilful
filing of a groundless complaint is a misdemeanor and, upon
conviction, a person must be fined not more than one thousand
dollars or imprisoned not more than one year. In lieu of the
criminal penalty provided by this subsection, a civil penalty of
not more than one thousand dollars may be assessed against the
complainant upon proof, by a preponderance of the evidence, that
the filing of the complaint was wilful and without just cause or
with malice. If the ethics committee determines the complaint
alleges facts sufficient to constitute a violation, it shall
promptly investigate the alleged violation and may compel by
subpoena the attendance and testimony of witnesses and the
production of pertinent books and papers.
If after such preliminary investigation, the ethics committee
finds that probable cause exists to support an alleged
violation, it 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 hearing on the matter within thirty days of the
respondent's failure to comply with the advisory opinion. All
ethics committee investigations and records relating to the
preliminary investigation are confidential. No complaint shall
be accepted which is filed later than four years after the
alleged violation occurred.
(2)
If a hearing is to be held, 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 charged party must be afforded appropriate due process
protections, including the right to be represented by counsel,
the right to call and examine witnesses, the right to introduce
exhibits, and the right to cross-examine opposing witnesses. All
hearings must be conducted in executive session.
(3)
After the hearing, the ethics committee shall determine its
findings of fact. If the ethics committee, based on competent
and substantial evidence, finds the respondent has violated this
chapter or Chapter 17 of Title 2, it shall:
(a)
administer a public or private reprimand;
(b)
determine that a technical violation as provided for in Section
8-13-1170 has occurred;
(c)
recommend expulsion of the member; and/or,
(d)
in the case of an alleged criminal violation, refer the matter
to the Attorney General for investigation. The ethics committee
shall report its findings in writing to the Speaker of the House
or President Pro Tempore of the Senate, as appropriate. The
report must be accompanied by an order of punishment and
supported and signed by a majority of the ethics committee
members. If the ethics committee finds the respondent has not
violated a code or statutory provision, it shall dismiss the
charges.
(4) An individual has ten
days from the date of the notification of the ethics committee's
action to appeal the action to the full legislative body.
(5) No ethics committee
member may participate in any matter in which he is involved.
(6) 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 cross-examine opposing
witnesses. (A)(1)
When a complaint is filed with or by the ethics
committee, a copy must be sent to the person alleged to have
committed the violation and to the State Ethics Commission,
within thirty days from the date the complaint was filed, for an
investigation as provided in this subsection. The State Ethics
Commission may commence an investigation of an alleged violation
of this chapter or Chapter 17, Title 2 of a member of the
General Assembly, its staff, or candidates for the General
Assembly upon the filing of a complaint by the commission or an
individual, or by the referral of a complaint by the appropriate
ethics committee. A copy of the complaint must be sent to the
appropriate ethics committee. However, the appropriate ethics
committee shall investigate and make a determination for a
complaint that alleges only a technical violation of Section
8-13-1170 or 8-13-1372.
(2)
If an alleged violation is found to be
groundless by the State Ethics Commission, a report must be
provided to the appropriate ethics committee. The appropriate
ethics committee may concur or nonconcur with the commission's
report or, within fifteen days from the receipt of the State
Ethics Commission's report, request the commission to continue
the investigation and consider additional matters not considered
by the commission. If the commission finds that the complaining
party wilfully filed a groundless complaint, the finding must be
reported to the Attorney General. The wilful filing of a
groundless complaint is a misdemeanor and, upon conviction, the
person must be fined not more than one thousand dollars or
imprisoned not more than one year. In lieu of the criminal
penalty provided by this item, a civil penalty of not more than
one thousand dollars may be assessed against the complainant
upon proof by a preponderance of the evidence that the filing of
the complaint was wilful and without just cause or with malice.
(3)
Action may not be taken on a complaint filed
more than four years after the violation is alleged to have
occurred unless a person, by fraud or other device, prevents
discovery of the violation.
(4)(a)
To conduct its investigation:
(i)
the State Ethics Commission, upon receipt of
information, may initiate a complaint upon an affirmative vote
of the commission or shall accept notarized complaints referred
from the ethics committees or from an individual, whether
personally or on behalf of an organization or governmental body,
that states the name of a person alleged to have committed a
violation of this chapter or Chapter 17, Title 2 and the
particulars of the violation. The commission shall forward a
copy of the complaint, a general statement of the applicable law
with respect to the complaint, and a statement explaining the
due process rights of the respondent including, but not limited
to, the right to counsel to the respondent within ten days of
the filing of the complaint;
(ii)
if the commission or its executive
director determines that the complaint does not allege facts
sufficient to constitute a violation, a report must be provided
to the appropriate ethics committee. The appropriate ethics
committee may concur or nonconcur with the commission's report,
or within fifteen days from the committee's receipt of the
finding, the committee may request the commission to continue
the investigation and consider additional matters not considered
by the commission. If the appropriate ethics committee concurs
with the recommendation to dismiss the complaint, the committee
must notify the complainant and respondent. All documents
related to a complaint that result in a dismissal or a finding
of no probable cause remains confidential, unless the respondent
waives the right to confidentiality;
(iii)
if the commission or its executive
director determines that the complaint alleges facts sufficient
to constitute a violation, an investigation may be conducted
into the alleged violation. However, if the commission receives
or initiates a complaint regarding a member of the General
Assembly, legislative staff, or a candidate for the General
Assembly, that only alleges a technical violation pursuant to
Section 8-13-1170 or 8-13-1372, the complaint must be forwarded
to the appropriate ethics committee for an investigation and
disposition of the matter;
(iv)
if the commission finds that there is evidence
of wilful conduct that would constitute a criminal violation of
Chapter 28 of Title 16, Chapter 13 of Title 8, or Chapter 17 of
Title 2, on the part of the respondent when the violation
occurred, then the complaint and accompanying materials also
must be provided to the Attorney General. This provision does
not limit any authority of the Attorney General or circuit
solicitor to initiate or conduct any criminal investigation
within his jurisdiction;
(v)
if the commission determines that assistance is
needed in conducting an investigation, the commission shall
request the assistance of appropriate agencies;
(vi)
the commission may order testimony to be taken
in any investigation or hearing by deposition before a person
who is designated by the commission and has the power to
administer oaths and, in these instances, to compel testimony.
The commission may administer oaths and affirmation for the
testimony of witnesses and issue subpoenas by approval of the
chairman, subject to judicial enforcement, and issue subpoenas
for the procurement of witnesses and materials including books,
papers, records, documents, or other tangible objects relevant
to the agency's investigation by approval of the chairman,
subject to judicial enforcement. A person to whom a subpoena has
been issued may move before a commission panel or the commission
for an order quashing a subpoena issued pursuant to this
section.
(b)
All investigations and accompanying documents
are confidential and only may be released pursuant to this item.
Thirty days after a recommendation of probable cause by the
commission after it completes its investigation, the following
documents become public record: the complaint, the response by
the respondent, the notice of hearing before the appropriate
ethics committee, the investigative findings, exhibits
introduced at any hearing, and the final order. However, if the
appropriate committee requests a further investigation, the
documents must not be released until thirty days after the
conclusion of the investigation or upon a finding of probable
cause by the committee, whichever occurs earlier.
(c)
Exhibits introduced must be redacted prior to
release to exclude personal information where the public
disclosure would constitute an unreasonable invasion of personal
privacy. The respondent may waive the right to confidentiality.
The wilful release of confidential information is a misdemeanor,
and a person releasing confidential information, upon
conviction, must be fined not more than one thousand dollars or
imprisoned for not more than one year.
(5)
Upon completion of the commission's
investigation, the commission shall make a recommendation as to
whether there is probable cause to believe a violation of this
chapter or of Chapter 17, Title 2 has occurred. The commission
shall forward a copy of its recommendation, along with a copy of
all relevant reports, evidence, and testimony, to the
appropriate ethics committee.
(6)
If after reviewing the commission's
recommendation and relevant evidence, the ethics committee
determines that probable cause does not exist, it shall send a
written decision to the respondent and the complainant. If the
ethics committee determines that probable cause exists to
support an alleged violation, it 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
within thirty days of the respondent's failure to comply with
the advisory opinion. A complaint must not be accepted which is
filed later than four years after the alleged violation
occurred.
(B) If a
formal public hearing is to be held:
(1)
the investigator or attorney handling the
investigation from the ethics commission shall present the
evidence related to the complaint to the appropriate ethics
committee;
(2)
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
appropriate committee shall maintain the authority to approve
subpoenas, authorize expenditures, dismiss complaints, schedule
hearings, grant continuances, and any other authority as
provided for by their rules;
(3)
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 charged party must
be afforded appropriate due process protections, including the
right to be represented by counsel, the right to call and
examine witnesses, the right to introduce exhibits, and the
right to cross-examine opposing witnesses. All hearings must be
open to the public.
(C)(1)
After the hearing, the ethics committee shall determine
its findings of fact. If the ethics committee, based on
competent and substantial evidence, finds the respondent has
violated this chapter or Chapter 17, Title 2, it shall:
(a)
administer a public reprimand;
(b)
determine that a technical violation as provided
for in Section 8-13-1170 or 8-13-1372 has occurred;
(c)
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;
(d)
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;
(e)
recommend expulsion of the member;
(f)
provide a copy of the complaint and accompanying
materials to the Attorney General if the committee finds
evidence of willful conduct on the part of the respondent when
the violation occurred; however, this provision does not limit
any authority of the Attorney General or circuit solicitor to
initiate or conduct any criminal investigation within his
jurisdiction;
(g)
require a combination of subitems (a) though (f)
as necessary and appropriate.
(2)
The ethics committee shall report its findings
in writing to the Speaker of the House of Representatives or
President Pro Tempore of the Senate, as appropriate. The report
must be accompanied by an order of punishment and supported and
signed by a majority of the ethics committee members. If the
ethics committee finds the respondent has not violated a code or
statutory provision, it shall dismiss the charges.
(D) An
individual has ten days from the date of the notification of the
ethics committee's action to appeal the action to the full
legislative body.
(E) No
ethics committee member may participate in any matter in which
he is 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 cross-examine opposing witnesses."
B. Article 5, Chapter 13, Title 8 of the 1976 Code is amended by adding:
"Section 8-13-545.
(A) The ethics committee may issue a
formal advisory opinion, based on real or hypothetical sets of
circumstances. A formal advisory opinion issued by the committee
is binding on the State Ethics Commission and 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 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.
(B) The State Ethics
Commission and the appropriate ethics committee shall consider
whether a person relied in good faith upon a formal advisory
opinion or written informal opinion issued by the committee
prior to the effective date of this act, unless amended or
revoked prior to the action considered as a possible violation,
prior to making a probable cause decision."
SECTION 6. Chapter 13, Title 8 of the 1976 Code is amended by adding:
Section 8-13-610. (A)
There is created a Commission on Judicial
Conduct. The commission has jurisdiction over judges regarding
allegations that misconduct occurred before or during service as
a judge and regarding allegations of incapacity during service
as a judge. The commission has continuing jurisdiction over
former judges regarding allegations that misconduct occurred
during service as a judge. The commission shall also have
jurisdiction over allegations that a former judge has made false
statements or presented false evidence, or has committed conduct
which would be a ground for discipline under Rule 7(a)(2), Rules
for Judicial Disciplinary Enforcement (RJDE), Rule 502, South
Carolina Appellate Court Rules (SCACR), during a disciplinary
proceeding against the former judge even if the conduct did not
occur during the time of service as a judge, and the commission
may recommend the imposition of a sanction under Rule 7(b) or
may recommend that a finding of criminal contempt be made by the
Supreme Court for this conduct.
(B) The commission
shall be composed of twenty-four members determined by the
Supreme Court, the General Assembly, and the Governor as
follows:
(1)
The Supreme Court shall elect eight members, six of whom
shall be judges from the circuit court, family court, or
masters-in-equity, and two shall be judges from the magistrate,
municipal, or probate courts.
(2)
The Senate shall elect four members, two of whom must be
regular members of the South Carolina Bar appointed from the
state at large, and two of whom must be public members appointed
from the state at large. To be eligible for election, two
members must first be nominated by the majority party of the
Senate and two members must be nominated by the minority party
of the Senate.
(3)
The House of Representatives shall elect four members, two
of whom must be regular members of the South Carolina Bar
appointed from the state at large, and two of whom must be
public members appointed from the state at large. To be eligible
for election, two members must first be nominated by the
majority party of the House and two members must be nominated by
the minority party of the House.
(4)
The Governor shall appoint eight members, four of whom
must be regular members of the South Carolina Bar appointed from
the state at large, and four of whom must be public members
appointed from the state at large. Additionally, no more than
four of the appointees may be associated with the appointing
Governor's political party. Executive branch employees and
current members of the Governor's staff may not be appointed to
serve as commission members.
(C) For purposes of
this section, 'public member' means a commission member who has
never served as a judge or admitted to practice law. The term
'public member' excludes current members of the General
Assembly, executive branch employees, or current members of the
Governor's staff.
(D) Commission members
shall serve for a term of four years and until their successors
are appointed and qualify. Commission members are eligible for
reappointment. A member assigned to a hearing panel may continue
to participate in the hearing and decision of a matter despite
the expiration of the member's term if the hearing began before
the expiration of the term. A vacancy shall occur when a
commission member ceases to be eligible to represent the
category from which the member was appointed, is removed by the
member's appointing authority, or becomes unable to serve.
Vacancies must be filled in the manner of the original
appointment for the unexpired portion of the term only. Members
of the commission, while serving on business of the commission,
shall receive per diem, mileage, and subsistence as is provided
by law for members of state boards, committees, and commissions.
Current members of the General Assembly may not be appointed to
serve as commission members.
(E) Except as otherwise
provided in this article, the commission's organization,
authority, powers, duties, and responsibilities are delineated
in Rule 4, RJDE, Rule 502, SCACR.
Section 8-13-620. The Rules for Judicial Disciplinary Enforcement, Rule 502, SCACR, shall govern the regulation of judicial conduct and provide the procedure for resolving allegations that a judge has committed ethical misconduct.
Section 8-13-630. (A)
All judicial misconduct investigations,
inquiries, hearings, and accompanying documents are confidential
and only may be released pursuant to this subsection. Upon the
filing of formal charges, the following documents become public
record: the complaint, the response by the respondent, the
notice of hearing, exhibits introduced at a hearing, the
commission'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. The respondent may
waive the right to confidentiality.
(B) The wilful release
of confidential information is a misdemeanor, and any person
releasing confidential information, upon conviction, must be
fined not more than one thousand dollars or imprisoned not more
than one year. If allegations of incapacity, as defined in Rule
2(l), RJDE, Rule 502, SCACR, are raised during the misconduct
proceedings, all records, information, and proceedings relating
to these allegations must be held confidential.
Section 8-13-640. If the chair, vice-chair or a panel of the Commission on Judicial Conduct is in possession of reliable information indicating that a judge has violated the criminal laws of this State, another state, the District of Columbia, or the United States, the existence of the misconduct proceedings and other materials related to a criminal violation must be provided as soon as practicable to the Attorney General, the United States Attorney, or another similarly suitable law enforcement official for appropriate action."
SECTION 7. Title 16 of the 1976 Code is amended by adding:
Section 16-28-100. As used in this chapter, all terms shall have the same definition as contained in Sections 8-13-100 and 8-13-1300 as applicable.
Section 16-28-110. (A)
A person may not, directly or indirectly,
give, offer, or promise anything of value to a public official,
public member, or public employee with the intent to:
(1)
influence the discharge of a public official's, public
member's, or public employee's official responsibilities
(2)
influence a public official, public member, or public
employee to commit, aid in committing, collude in, or allow
fraud on a governmental entity; or
(3)
induce a public official, public member, or public
employee to perform or fail to perform an act in violation of
the public official's, public member's, or public employee's
official responsibilities:
(B) A public official,
public member, or public employee may not, directly or
indirectly, knowingly ask, demand, exact, solicit, seek, accept,
assign, receive, or agree to receive anything of value for
himself or for another person in return for being:
(1)
influenced in the discharge of his official
responsibilities;
(2)
influenced to commit, aid in committing, collude in, or
allow fraud, or make an opportunity for the commission of fraud
on a governmental entity; or
(3)
induced to perform or fail to perform an act in violation
of his official responsibilities.
(C) A person may not,
directly or indirectly, give, offer, or promise to give anything
of value to another person with intent to influence testimony
under oath or affirmation in a trial or other proceeding
before:
(1)
a court;
(2)
a committee of either house or both houses of the General
Assembly; or
(3)
an agency, commission, or officer authorized to hear
evidence or take testimony or with intent to influence a witness
to fail to appear.
(D) A person may not,
directly or indirectly, ask, demand, exact, solicit, seek,
accept, assign, receive, or agree to receive anything of value
in return for influencing testimony under oath or affirmation in
a trial or other proceeding before:
(1)
a court;
(2)
a committee of either house or both houses of the General
Assembly; or
(3)
an agency, commission, or officer authorized to hear
evidence or take testimony or with intent to influence a witness
to fail to appear.
(E) Subsections (C) and
(D) do not prohibit the payment or receipt of witness fees
provided by law or the payment by the party on whose behalf a
witness is called and receipt by a witness of the reasonable
costs of travel and subsistence at trial, hearing, or
proceeding, or, in the case of an expert witness, of the
reasonable fee for time spent in the preparation of the opinion
and in appearing or testifying.
(F) A person who
violates the provisions of this section is guilty of a felony
and, upon conviction, must be punished by imprisonment for not
more than ten years and a fine of not more than ten thousand
dollars and is permanently disqualified from being a public
official or a public member. A public official, public member,
or public employee who violates the provisions of this section
forfeits his public office, membership, or employment.
(G) This section does
not apply to political contributions unless the contributions
are conditioned upon the performance of specific actions of the
person accepting the contributions nor does it prohibit a
parent, grandparent, or other close relative from making a gift
to a child, grandchild, or other close relative for love and
affection except as otherwise provided.
Section 16-28-115. (A)
No person may knowingly use campaign funds
to defray personal expenses which are unrelated to the campaign
or the office if the candidate is an officeholder nor may these
funds be converted to personal use. The prohibition of this
subsection does not extend to the incidental personal use of
campaign materials or equipment nor to an expenditure used to
defray any ordinary expenses incurred in connection with an
individual's duties as a holder of elective office.
(B) The payment of
reasonable and necessary travel expenses or for food or
beverages consumed by the candidate or members of his immediate
family while at, and in connection with, a political event are
permitted.
(C) A person who
wilfully or recklessly violates the provisions of this
section:
(1)
if the amount is two thousand dollars or less in the
aggregate during any reporting period for the certified campaign
reports as set forth in Section 8-13-1308, or in final
disbursement as set forth in Section 8-13-1370, is guilty of
misdemeanor triable in magistrates court or municipal court,
notwithstanding the provisions of Sections 22-3-540, 22-3-545,
22-3-550, and 14-25-65. Upon conviction, the person must be
fined not more than one thousand dollars or imprisoned not more
than thirty days and must refund the amount of personal use back
to his campaign account;
(2)
if the amount is more than two thousand dollars but less
than ten thousand dollars in the aggregate during any reporting
period for the certified campaign reports as set forth in
Section 8-13-1308, or in final disbursement as set forth in
Section 8-13-1370, the person is guilty of a felony and, upon
conviction, must be fined in the discretion of the court or
imprisoned not more than five years and must refund the amount
of personal use back to his campaign account;
(3)
if the amount is ten thousand dollars or more in the
aggregate during any reporting period for the certified campaign
reports as set forth in Section 8-13-1308, or in final
disbursement as set forth in Section 8-13-1370, the person is
guilty of a felony and, upon conviction, must be fined in the
discretion of the court or imprisoned not more than ten years,
and must refund the amount of personal use back to his campaign
account.
Section 16-28-120. (A)
No person may wilfully offer or pay to a
public official, public member, or public employee and no public
official, public member, or public employee may wilfully solicit
or receive money in addition to that received by the public
official, public member, or public employee in his official
capacity for advice or assistance given in the course of his
employment as a public official, public member, or public
employee.
(B) A person who
wilfully or recklessly violates the provisions of this
section:
(1)
if the amount is two thousand dollars or less, is guilty
of a misdemeanor triable in magistrates court or municipal
court, notwithstanding the provisions of Sections 22-3-540,
22-3-545, 22-3-550, and 14-25-65. Upon conviction, the person
must be fined not more than one thousand dollars or imprisoned
not more than thirty days and must refund the amount of money to
the state's general fund;
(2)
if the amount is more than two thousand dollars but less
than ten thousand dollars, is guilty of a felony and, upon
conviction, must be fined in the discretion of the court or
imprisoned not more than five years and must refund the amount
of money to the state's general fund;
(3)
if the amount is ten thousand dollars or more, is guilty
of a felony and, upon conviction, must be fined in the
discretion of the court or imprisoned not more than ten years,
and must refund the amount of money to the state's general fund.
Section 16-28-125. (A)
A public official, public member, or public
employee may not wilfully use or disclose confidential
information gained in the course of or by reason of his official
responsibilities in a way that would affect an economic interest
held by him, a family member, an individual with whom he is
associated, or a business with which he is associated.
(B)(1) A public
official, public member, or public employee may not wilfully
examine, or aid and abet in the wilful examination of, a tax
return of a taxpayer, a worker's compensation record, a record
in connection with health or medical treatment, social services
records, or other records of an individual in the possession of
or within the access of a public department or agency if the
purpose of the examination is improper or unlawful.
(2)
A person convicted of violating this subsection must be
fined not more than five thousand dollars or imprisoned not more
than five years, or both, and shall reimburse the costs of
prosecution. Upon conviction, the person also must be discharged
immediately from his public capacity as an official, member, or
employee.
Section 16-28-130. (A)
No public official, public member, or public
employee may cause the employment, appointment, promotion,
transfer, or advancement of a family member to a state or local
office or position in which the public official, public member,
or public employee supervises or manages.
(B) A public official,
public member, or public employee may not participate in an
action relating to the discipline of the public official's,
public member's, or public employee's family member.
Section 16-28-135.
A former public official, former public member, or former
public employee may not for a period of one year after
terminating his public service or employment:
(1) serve as a lobbyist
or represent clients before the agency or department on which he
formerly served in a matter which he directly and substantially
participated during his public service or employment; or
(2) accept employment
if the employment:
(a)
is from a person who is regulated by the agency or
department on which the former public official, former public
member, or former public employee served or was employed; and
(b)
involves a matter in which the former public official,
former public member, or former public employee directly and
substantially participated during his public service or public
employment.
Section 16-28-140. It is a breach of ethical standards for a public official, public member, or public employee who is participating directly in procurement, as defined in Section 11-35-310(22), to resign and accept employment for a period of one year from the date of termination of service or employment with a person contracting with the governmental body if the contract falls or would fall under the public official's, public member's, or public employee's official responsibilities.
Section 16-28-145. (A)
Unless otherwise provided for in this
chapter, a person who wilfully violates a provision of this
chapter is guilty of a misdemeanor and, upon conviction, must be
punished by imprisonment of not more than three years or a fine
of not more than ten thousand dollars, or both. A court also
may order an appropriate amount of restitution taking under
consideration any unjust enrichment, use of campaign funds to
defray costs associated with a criminal action, or other factors
deemed relevant to the particular case.
(B) As used in this
chapter, the term 'wilfully' means that the act is intentional
or knowing, as opposed to inadvertent."
SECTION 8. Section 8-13-780 of the 1976 Code, as last amended by Act 248 of 1991, is further amended to read:
"Section 8-13-780.
(A) The provisions of this section are
in addition to all other civil and administrative remedies
against public officials, public members, or public employees
which are provided by law.
(B) In addition
to existing remedies for breach of the ethical standards of this
chapter or regulations promulgated hereunder, the State Ethics
Commission may impose an oral or written warning or
reprimand. For violation of the ethical standards of
this article, the appropriate supervisory agency may:
(1)
administer a public reprimand;
(2)
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;
(3)
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;
(4)
require a combination of items (1) through (3)
as necessary and appropriate.
(C) The value of
anything received by a public official, public member, or public
employee in breach of the ethical standards of this
chapter or regulations promulgated hereunder is
recoverable by the State or other governmental entity in an
action by the Attorney General against a person benefitting from
the violations.
(D) Before a public
employee's employment or a public official's or public member's
association with the governmental entity is terminated for a
violation of the provisions of this chapter, notice and an
opportunity for a hearing must be provided to the public
official, public member, or public employee."
SECTION 9. Section 8-13-790(A) of the 1976 Code, as last amended by Act 248 of 1991, is further amended to read:
"(A) The value of
anything transferred or received in breach of the ethical
standards of Articles 1 through 11 of this chapter or
regulations promulgated under it by a public employee,
public official, or a nonpublic employee or official may be
recovered from the public employee, public official, or
nonpublic employee or official."
SECTION 10. Section 8-13-1510 of the 1976 Code, as last amended by Act 40 of 2011, is further amended to read:
"Section 8-13-1510.
(A) Except as
otherwise specifically provided in this chapter, a person
required to file a report or statement under this chapter who
files a late statement or report or fails to file a required
statement or report must be assessed a civil penalty as
follows:
(1)
a fine of one hundred dollars if the statement or report
is not filed within five days after the established deadline
provided by law in this chapter; and
(2)
after notice has been given by certified or registered
mail that a required statement or report has not been filed, a
fine of ten dollars per calendar day for the first ten days
after notice has been given, and one hundred dollars for each
additional calendar day in which the required statement or
report is not filed, not exceeding five thousand dollars.
(B)
After the maximum civil penalty has been levied
and the required statement or report has not been filed, the
person is:
(1) for a
first offense, guilty of a misdemeanor triable in magistrates
court and, upon conviction, must be fined not more than five
hundred dollars or imprisoned not more than thirty days;
(2) for a
second offense, guilty of a misdemeanor triable in magistrates
court and, upon conviction, must be fined not less than two
thousand five hundred dollars nor more than five thousand
dollars or imprisoned not less than a mandatory minimum of
thirty days;
(3) for a
third or subsequent offense, guilty of a misdemeanor triable in
magistrates court and, upon conviction, must be fined not more
than five thousand dollars or imprisoned for not more than one
year, or both."
SECTION 11. Article 15, Chapter 13, Title 8 of the 1976 Code is amended by adding:
"Section 8-13-1515. A person who wilfully fails to file a required statement or report which has the effect of concealing a violation of this chapter is guilty of a misdemeanor and, upon conviction, must be fined five thousand dollars or be imprisoned for not more than one year, or both, for each statement or report not filed."
SECTION 12. Section 8-13-1520 of the 1976 Code, as last amended by Act 76 of 2003, is further amended to read:
"Section 8-13-1520.
(A) Except as otherwise specifically
provided in this chapter and for failure to file a required
statement or report, a person who violates any provision of
this chapter is guilty of a misdemeanor and, upon conviction,
must be fined not more than five thousand dollars or imprisoned
for not more than one year, or both.
(B) A person who
wilfully violates any provision of this Article 13 is
guilty of a misdemeanor and, upon conviction, must be fined not
more than five hundred percent of the amount of contributions or
anything of value that should have been reported pursuant to the
provisions of this Article 13 but not less than five thousand
dollars or imprisoned for not more than one year, or both.
(C) A violation of the
provisions of this chapter does not necessarily subject a public
official to the provisions of Section 8-13-560.
(D) For
purposes of this section, 'wilfully' means that the act is
intentional or knowing, as opposed to inadvertent."
SECTION 13. Article 15, Chapter 13, Title 8 of the 1976 Code is amended by adding:
"Section 8-13-1525.
For a violation of the ethical standards of this article,
the appropriate supervisory agency may:
(1) administer a public
reprimand;
(2) 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;
(3) 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;
(4) order the repayment
of any campaign funds it determines were inappropriately used to
defray costs associated with the defense of the matter;
(5) require a
combination of items (1) through (4) as necessary and
appropriate."
SECTION 14. Sections 8-13-705, 8-13-720, 8-13-725, 8-13-750, 8-13-755, and 8-13-760 of the 1976 Code are repealed.
SECTION 15. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. 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, criminal prosecution, 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.
SECTION 16. Sections 1 through 6 of this act take effect on July 1, 2015, except that the election or appointment of members of the State Ethics Commission as provided for in Section 8-13-310 of the 1976 Code, as amended by this act, may take place upon the signature of this act by the Governor so that these members may take office and begin serving on July 1, 2015. Sections 7 through 14 of this act take effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.