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Indicates Matter Stricken
Indicates New Matter
Sponsors: Senators Sheheen, Campsen, Leventis, Rose, Davis and Bright
Document Path: l:\council\bills\gjk\20007sd09.docx
Companion/Similar bill(s): 138, 3434
Introduced in the Senate on January 13, 2009
Currently residing in the Senate Committee on Judiciary
Summary: Removal of officers by the Governor
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/10/2008 Senate Prefiled 12/10/2008 Senate Referred to Committee on Judiciary 1/13/2009 Senate Introduced and read first time SJ-138 1/13/2009 Senate Referred to Committee on Judiciary SJ-138 1/13/2010 Senate Referred to Subcommittee: McConnell (ch), L.Martin, Hutto, Campbell, Nicholson
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 1-3-240, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REMOVAL OF OFFICERS BY THE GOVERNOR, SO AS TO PROVIDE THAT THE STATE INSPECTOR GENERAL MAY BE REMOVED BY THE GOVERNOR FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY; BY ADDING CHAPTER 6 TO TITLE 1 SO AS TO CREATE THE OFFICE OF THE STATE INSPECTOR GENERAL, TO PROVIDE THAT THE STATE INSPECTOR GENERAL IS APPOINTED BY THE GOVERNOR WITH THE ADVICE AND CONSENT OF THE SENATE, AND TO AUTHORIZE THE STATE INSPECTOR GENERAL TO ADDRESS FRAUD, WASTE, ABUSE, AND WRONGDOING WITHIN THE SOUTH CAROLINA EXECUTIVE GOVERNMENT AGENCIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 1-3-240 of the 1976 Code, as last amended by Act 114 of 2007, is further amended to read:
"Section 1-3-240. (A) Any officer of the county or State, except:
(1) an officer whose removal is provided for in Section 3 of Article XV of the State Constitution; or
(2) an officer guilty of the offense named in Section 8 of Article VI of the State Constitution; or
(3) pursuant to subsection (B) of this section, an officer of the State appointed by
a the Governor, either with or without the advice and consent of the Senate;
who is guilty of malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity shall be subject to removal by the Governor upon any of the foregoing causes being made to appear to the satisfaction of the Governor. But before removing any such officer, the Governor shall inform him in writing of the specific charges brought against him and give him an opportunity on reasonable notice to be heard.
(B) Any person appointed to a state office by a Governor, either with or without the advice and consent of the Senate, other than those officers enumerated in subsection (C), may be removed from office by the Governor at his discretion by an Executive Order removing the officer.
(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) Department of Transportation Commission;
(c) Ethics Commission;
(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 Section 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;
(n) State Inspector General.
(2) Upon the expiration of an officeholder's term, the individual may continue to serve until a successor is appointed and qualifies."
SECTION 2. Title 1 of the 1976 Code is amended by adding:
Section 1-6-10. As used in this chapter:
(1) 'Agency' means an authority, board, branch, commission, committee, department, division, or other instrumentality of the executive department of state government, including administrative bodies. 'Agency' includes a body corporate and politic established as an instrumentality of the State. 'Agency' does not include:
(a) the judicial department of state government;
(b) the legislative department of state government; or
(c) a political subdivision.
(2) 'Business relationship' means dealings of a person with an agency seeking, obtaining, establishing, maintaining, or implementing:
(a) a pecuniary interest in a contract or purchase with the agency; or
(b) a license or permit requiring the exercise of judgment or discretion by the agency.
(3) 'Employee' means an individual who is employed by an agency on a full-time, part-time, temporary, intermittent, or hourly basis. 'Employee' includes an individual who contracts with an agency for personal services.
(4) 'Person' means:
(a) an individual, labor union and organization, joint apprenticeship committee, partnership, association, corporation, legal representative, mutual company, joint-stock company, trust, unincorporated organization, trustee, trustee in bankruptcy, receiver, or other legal or commercial entity located in part or in whole in the State or doing business in the State;
(b) the State and any agency or local subdivision of an agency; or
(c) a political subdivision.
(5) 'Political subdivision' includes a county, city, municipality, town, village, township, district, authority, special purpose district, school district, other local government entity, or other public corporation or entity whether organized and existing under charter or general law.
(6) 'Special state appointee' means a person who is:
(a) not a state officer or employee; and
(b) elected or appointed to an authority, a board, a commission, a committee, a council, a task force, or other body designated by any name that:
(i) is authorized by statute or executive order; and
(ii) functions in a policy or an advisory role in the executive, including the administrative, department of state government, including a separate body corporate and politic.
(7) 'State officer' means any of the following:
(a) the Governor;
(b) the Lieutenant Governor;
(c) the Secretary of State;
(d) the State Comptroller General;
(e) the State Treasurer;
(f) the Attorney General;
(g) the Superintendent of Education;
(h) the Commissioner of Agriculture; or
(i) the Adjutant General.
Section 1-6-20. (A) There is hereby established the office of the State Inspector General which consists of the State Inspector General, who is the director of the office, and any staff of deputy inspectors general, investigators, auditors, and clerical employees employed by the State Inspector General as necessary to carry out the duties of the State Inspector General and as are authorized by statute. The State Inspector General shall fix the salaries of all staff subject to the approval of the State Budget and Control Board and to the funds authorized in the annual general appropriation act.
(B) The State Inspector General is responsible for addressing fraud, waste, abuse, and wrongdoing in agencies.
(C) The Governor shall appoint the State Inspector General with the advice and consent of the Senate for a term of six years. A Governor may reappoint the State Inspector General for an additional term. The State Inspector General's compensation must not be reduced during the State Inspector General's uninterrupted continued tenure in office.
(D) The State Inspector General:
(1) may only be removed from office by the Governor as provided in Section 1-3-240(C);
(2) must be an attorney or certified public accountant licensed in South Carolina; and
(3) is entitled to receive compensation set by the Governor and approved by the State Budget and Control Board.
(E) Except for information declared confidential under this chapter, records of the office of the State Inspector General are subject to public inspection under the Freedom of Information Act.
Section 1-6-30. The State Inspector General must:
(1) initiate, supervise, and coordinate investigations authorized by this chapter;
(2) recommend policies and carry out other activities designed to deter, detect, and eradicate fraud, waste, abuse, mismanagement, and misconduct in state government;
(3) receive complaints alleging a violation of a statute or rule relating to the purchase of goods or services by a current or former employee, state officer, special state appointee, or person who has a business relationship with an agency;
(4) adopt rules and regulations for administering the office of the State Inspector General;
(5) ensure that every employee, state officer, special state appointee, and person who has a business relationship with an agency is properly trained in the Rules of Conduct as provided in Article 7, Chapter 13, Title 8;
(6) provide advice to an agency on developing, implementing, and enforcing policies and procedures to prevent or reduce the risk of fraudulent or wrongful acts within the agency;
(7) recommend legislation to the Governor and General Assembly to strengthen public integrity laws; and
(8) annually submit a report to the Governor, President Pro Tempore of the Senate, and Speaker of the House of Representatives detailing the State Inspector General's activities.
Section 1-6-40. If the State Inspector General has reasonable cause to believe that a crime has occurred or is occurring, he must report the suspected crime to:
(1) the Governor; and
(2) any appropriate state or federal law enforcement agencies and prosecuting authorities that have jurisdiction over the matter.
Section 1-6-50. The State Inspector General has the following powers:
(A) As part of an investigation, the State Inspector General may:
(1) administer oaths;
(2) examine witnesses under oath;
(3) issue subpoenas and subpoenas duces tecum; and
(4) examine the records, reports, audits, reviews, papers, books, recommendations, contracts, correspondence, or any other documents maintained by an agency.
(B) The State Inspector General may apply to a circuit court for an order holding an individual in contempt of court if the individual refuses to give sworn testimony under a subpoena issued by the State Inspector General or otherwise disobeys a subpoena or subpoena duces tecum issued by the State Inspector General.
(C) The State Inspector General must prepare a report summarizing the results of every investigation. The report is confidential in accordance with Section 1-6-90.
(D) If the Attorney General has elected not to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained, the State Inspector General may file a civil action for the recovery of the funds in accordance with Section 1-6-70 of this chapter.
Section 1-6-60. If the State Inspector General investigates and determines that there is specific and credible evidence that a current or former employee, a current or former state officer, a current or former special state appointee, or a person who has or had a business relationship with an agency has violated the code of ethics, the State Inspector General may file a complaint with the Ethics Commission and represent the State in any proceeding before the Ethics Commission.
Section 1-6-70. (A) This section applies if the State Inspector General finds evidence of misfeasance, malfeasance, nonfeasance, misappropriation, fraud, or other misconduct that has resulted in a financial loss to the State or in an unlawful benefit to an individual in the conduct of state business.
(B) If the State Inspector General finds evidence described in subsection (A), the State Inspector General shall certify a report of the matter to the Attorney General and provide the Attorney General with any relevant documents, transcripts, or written statements. Not later than one hundred eighty days after receipt of the report from the State Inspector General, the Attorney General may do one of the following:
(1) file a civil action, including an action upon a state officer's official bond, to secure for the State the recovery of funds misappropriated, diverted, missing, or unlawfully gained. Upon request of the Attorney General, the State Inspector General shall assist the Attorney General in the investigation, preparation, and prosecution of the civil action;
(2) inform the State Inspector General that the Attorney General does not intend to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained. If the Attorney General elects not to file a civil action, the Attorney General must return to the State Inspector General all documents and files initially provided by the State Inspector General; or
(3) inform the State Inspector General that the Attorney General is diligently investigating the matter and after further investigation may file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained. However, if more than three hundred sixty-five days have passed since the State Inspector General certified the report to the Attorney General has neither filed a civil action or informed the State Inspector General that he does not intend to file a civil action, the Attorney General loses the authority to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained and must return to the State Inspector General all documents and files initially provided by the State Inspector General.
(C) The State Inspector General may file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained if the State Inspector General has found evidence described in subsection (A) and reported to the Attorney General under subsection (B) and:
(1) the Attorney General has elected under subsection (B)(2) not to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained; or
(2) under subsection (B)(3), more than three hundred sixty-five days have passed since the State Inspector General certified the report to the Attorney General under subsection (B) and the Attorney General has not filed a civil action.
(D) If the State Inspector General has found evidence described in subsection (A), the State Inspector General may institute forfeiture proceedings as allowed by law in a court having jurisdiction in a county where property derived from or realized through the misappropriation, diversion, disappearance, or unlawful gain of state funds is located, unless a prosecuting attorney has already instituted forfeiture proceedings against that property.
Section 1-6-80. (A) If the State Inspector General discovers evidence of criminal activity, the State Inspector General shall certify to the appropriate prosecuting attorney the following information:
(1) the identity of any person who may be involved in the criminal activity; and
(2) the criminal statute that the State Inspector General believes has been violated.
(B) In addition, the State Inspector General must provide the prosecuting attorney with any relevant documents, transcripts, or written statements. If the prosecuting attorney decides to prosecute the crime described in the information certified to the prosecuting attorney, or any other related crimes, the State Inspector General must cooperate with the prosecuting attorney in the investigation and prosecution of the case. Upon request of the prosecuting attorney, the State Inspector General may participate on behalf of the State in any resulting criminal trial.
Section 1-6-90. (A) If any individual discloses information alleging a violation of a state or federal statute, rule, regulation, or ordinance in good faith to the State Inspector General, the individual's identity is confidential and must not be disclosed to anyone other than the Governor, the staff of the Office of the State Inspector General, or an authority to whom the investigation is subsequently referred or certified, unless:
(1) the State Inspector General makes a written determination that it is in the public interest to disclose the individual's identity; or
(2) the individual consents in writing to disclosure of the individual's identity.
(B) After an investigation is completed and a report is issued as provided in Section 1-6-50(C), the investigative records of the State Inspector General are subject to public inspection under the provisions of the Freedom of Information Act. However, if an individual's identity is confidential as provided in subsection (A), the individual' s identity or any information that reasonably might lead to the discovery of the individual's identity must not be disclosed except as provided in subsection (A) or subsection (E).
(C) This subsection does not apply to a person who is a party to an action brought by the State Inspector General. Information received by the State Inspector General is not required to be produced in the course of discovery unless ordered by a court after a showing of particularized need and proof that the information requested cannot be obtained from any other source.
(D) Except as provided in subsection (E), a person commits the misdemeanor of unlawful disclosure of confidential information if he knowingly or intentionally discloses:
(1) confidential information or records; or
(2) the identity of a person whose identity is confidential under subsection (A).
(E) A person may disclose confidential information, records, or an individual's identity that is confidential under subsection (A) if the Governor authorizes the disclosure of this information in the public interest."
SECTION 3. This act takes effect July 1, 2009.
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