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TO AMEND ARTICLE 1, CHAPTER 3, TITLE 54 OF THE 1976 CODE, RELATING TO THE CREATION AND ORGANIZATION OF THE SOUTH CAROLINA STATE PORTS AUTHORITY, TO CLARIFY THAT THE POWERS AND DUTIES OF THE AUTHORITY ARE EXERCISED BY A BOARD OF DIRECTORS, TO PROVIDE THAT CANDIDATES FOR APPOINTMENT MUST POSSESS CERTAIN QUALIFICATIONS, TO PROVIDE THAT CANDIDATES MUST BE SCREENED TO DETERMINE WHETHER THEY POSSESS THE REQUIRED QUALIFICATIONS BEFORE THEY MAY SERVE ON THE BOARD, TO PROVIDE THAT MEMBERS OF THE BOARD MAY BE REMOVED FROM OFFICE ONLY FOR CAUSE, TO PROVIDE THAT THE BOARD MUST PERFORM AN ANNUAL PERFORMANCE REVIEW OF THE EXECUTIVE DIRECTOR, TO ESTABLISH THAT DIRECTORS HAVE A DUTY OF GOOD FAITH AND ORDINARY CARE WHEN DISCHARGING THEIR DUTIES AS A DIRECTOR, TO PROHIBIT CONFLICT OF INTEREST TRANSACTIONS, TO ESTABLISH A SOUTH CAROLINA STATE PORTS ADVISORY BOARD, AND SET THE MEMBERSHIP, DUTIES, AND RESPONSIBILITIES OF THE ADVISORY BOARD; TO AMEND CHAPTER 3, TITLE 54, BY ADDING ARTICLE 2, RELATING TO PORTS AUTHORITY MANAGEMENT, TO PROVIDE THAT THE BOARD OF DIRECTORS MUST HIRE AN EXECUTIVE DIRECTOR OF PORT OPERATIONS AND TO ESTABLISH THE DIRECTOR'S DUTY TO OPERATE THE PORTS IN A MANNER CONSISTENT WITH THE MISSION, POLICIES, AND DIRECTION OF THE BOARD; TO AMEND SECTION 54-3-140(5), TO PROVIDE THAT THE BOARD OF DIRECTORS MUST ADOPT AN ORGANIZATIONAL STRUCTURE FOR AUTHORITY OPERATIONS; TO AMEND SECTION 54-3-140, RELATING TO THE POWERS OF THE PORTS AUTHORITY, BY ADDING TWO NEW ITEMS THAT REQUIRE A LONG-RANGE PORT DEVELOPMENT AND CAPITAL FINANCING PLAN AND TO PROVIDE THAT THE AUTHORITY MUST CONSIDER PUBLIC-PRIVATE PARTNERSHIPS FOR CURRENT AND FUTURE OPERATIONS; TO AMEND SECTION 54-3-1040, RELATING TO THE ANNUAL FINANCIAL STATEMENT, AND TO PROVIDE THAT COPIES OF THE STATEMENT MUST BE FORWARDED TO THE ADVISORY COMMITTEE AND THE GENERAL ASSEMBLY; TO AMEND ARTICLE 11, CHAPTER 3, TITLE 54, RELATING TO FINANCIAL MATTERS, BY ADDING SECTION 54-3-1060 TO PROVIDE THAT THE AUTHORITY MUST MAINTAIN A TRANSACTION REGISTER OF ALL FUNDS EXPENDED OVER ONE HUNDRED DOLLARS AND MUST MAINTAIN ON ITS INTERNET WEBSITE A COPY OF EACH MONTHLY CREDIT CARD STATEMENT FOR ALL CREDIT CARDS MAINTAINED BY THE AUTHORITY; AND TO AMEND CHAPTER 3, TITLE 54, BY ADDING ARTICLE 13, RELATING TO LEGISLATIVE OVERSIGHT, TO REQUIRE REGULAR OVERSIGHT REVIEW OF THE AUTHORITY AND THE EXECUTIVE DIRECTOR.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 3, Title 54 of the 1976 Code is amended to read:
Section 54-3-10. The There is created the South Carolina State Ports Authority. is hereby created consisting of a The governing body of the authority is a board of directors consisting of nine members, hereafter referred to as the Authority who shall be responsible for setting policies and direction for the authority so that the authority may achieve its mission. The powers and duties of the authority shall be exercised by the board. The board may delegate to one or more officers, agents, or employees such powers and duties as it determines are necessary and proper for the effective, efficient operation of the port.
Section 54-3-20. (A) The members of the board shall be appointed by the Governor, with the advice and consent of the Senate, for terms of seven years each and until their successors shall have been appointed, screened, and have qualified. In the event of a vacancy, however caused, a successor shall be appointed in the manner of original appointment for the unexpired term.
(B) A candidate for appointment to the board may not be confirmed by the Senate or serve on the board, even in an interim capacity, until he is found qualified by possessing the abilities and experience and meet the minimum qualifications contained in Section 54-3-60.
Section 54-3-30. They The board shall elect one of their number its members to serve as chairman, and one member to serve as vice-chairman, and shall also elect a one member to serve as secretary. The board shall meet upon the call of its chairman and a majority of its members shall constitute a quorum for the transaction of its business.
Section 54-3-40. The Authority board shall select one of its members to serve as its treasurer. The Authority treasurer shall require give a surety bond of such appointee in such an amount as the Authority may fix fixed by the board and the premium thereon on the bond shall be paid by the Authority authority as a necessary expense of the Authority.
Section 54-3-50. Members of the board of directors may be removed by the Governor for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, incapacity, a breach of duty required by Section 54-3-70, or entering into a conflict of interest transaction prohibited by Section 54-3-80.
Section 54-3-60. (A) Each member of the board must possess abilities and experience that enable them to make valuable contributions to the conduct of the authority's business. These abilities include substantial business skills and experience but are not limited to:
(1) general knowledge of the history, purpose, and operations of the South Carolina Ports Authority;
(2) the ability to interpret legal and financial documents and information so as to further the activities and affairs of the authority;
(3) with the assistance of counsel, the ability to understand and apply federal and state laws, rules, and regulations related to the operation of a port; and
(4) with the assistance of counsel, the ability to understand and apply judicial and administrative decisions as they relate to the activities and affairs of a port.
(B) In addition to the abilities and experience required in subsection (A), each board member must possess a background of at least five years in any one or any combination of the following fields of expertise:
(a) maritime shipping;
(b) organized labor related to maritime shipping;
(c) overland shipping by truck or rail, or both;
(d) international commerce;
(e) finance, economics, or statistics;
(f) accounting;
(g) engineering; or
(h) law.
(C) When making appointments to the board, the Governor shall ensure that that the diverse interests represented by the port are represented. To the greatest extent possible, the Governor shall ensure that the membership of the board includes a certified public accountant, a member of the Charleston harbor community, a member representing port users such as manufacturers, shippers, and importers, a member representing the state's economic development interests, a member who has served as a corporate chief executive officer, and members from the various regions of the State. Consideration of these factors in making an appointment in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed.
Section 54-3-70. The board must conduct an annual performance review of the executive director and submit a written report of its findings to the Governor and the General Assembly. A draft of the performance review must be submitted to the executive director, and the executive director must be provided an opportunity to be heard by the board of directors before the board submits the final draft to the Governor and the General Assembly.
Section 54-3-80. (A) A member of the board of directors shall discharge his duties as a director, including his duties as a member of a committee:
(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 authority. As used in this chapter, best interests means a balancing of the following:
(a) preservation of the financial integrity of the South Carolina State Ports Authority and its ongoing operations;
(b) economic development and job attraction and retention; and
(c) exercise of the powers of the authority in accordance with good business practices and the requirements of applicable licenses, laws, and regulations.
(B) In discharging his duties, a director 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 State whom the director reasonably believes to be reliable and competent in the matters presented;
(2) legal counsel, public accountants, or other persons as to matters the director reasonably believes are within the person's professional or expert competence; or
(3) a committee of the board of directors of which he is not a member if the director reasonably believes the committee merits confidence.
(C) A director 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 director is not liable for any action taken as a director, 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 director 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 which have been concealed fraudulently.
Section 54-3-90. (A) A conflict of interest transaction is a transaction with the South Carolina State Ports Authority in which a director has a direct or indirect interest. A conflict of interest transaction is not voidable by the authority solely because of the director's interest in the transaction if any one of the following is true:
(1) the material facts of the transaction and the director's interest were disclosed or known to the board or a committee of the board, and the board or a committee of the board authorized, approved, or ratified the transaction; or
(2) the transaction was fair to the authority and its customers.
If item (1) has been accomplished, the burden of proving unfairness of any transaction covered by this section is on the party claiming unfairness. If item (1) has not been accomplished, the party seeking to uphold the transaction has the burden of proving fairness.
(B) For purposes of this section, a director has an indirect interest in a transaction if:
(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 director, 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 directors on the board of directors, or on the 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 director. If a majority of the directors 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 director 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 54-3-100. (A) There is established the South Carolina State Ports Authority Advisory Board. The advisory board shall be comprised of eight members appointed to four-year terms. One member must be appointed by the Governor upon recommendation of each of the following:
(1) the South Carolina Stevedores Association;
(2) the Charleston Harbor Pilots Association;
(3) the International Longshoreman's Association;
(4) the Propeller Club of Charleston;
(5) the South Carolina Manufacturer's Alliance;
(6) the South Carolina Chamber of Commerce;
(7) the South Carolina Trucking Association; and
(8) the Class 1 Railroad Companies providing freight service to the port.
The Governor may remove members of the advisory board for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity.
(B) The advisory board has the following duties and responsibilities:
(1) make an annual written report to the Governor and the General Assembly concerning the state of port operations, the performance of port management, and the performance of the board of directors, collectively and individually;
(2) assist the board with formulating and updating the port's strategic planning;
(3) fix the compensation and expenses of each authority board member;
(4) may make recommendations to the Senate Transportation Committee and House of Representatives Ways and Means Committee concerning the removal of board members; and
(5) consult and advise the authority board of directors on any and all matters referred by the board.
(C) The advisory board may also assess the qualifications of appointees to the authority board of directors and forward written assessments to the Senate Transportation Committee for consideration during appointee screening."
SECTION 2. Chapter 3, Title 54 of the 1976 Code is amended by adding:
Section 54-3-110. The board of directors shall employ an Executive Director of Port Operations who shall serve at the pleasure of the board. A person employed to this position shall possess practical and successful business and executive ability and must be knowledgeable in the field of port operations.
Section 54-3-120. (A) The executive director is charged with the affirmative duty to carry out the mission, policies, and direction of the authority as established by the board of directors. He must represent the authority in its dealings with other state agencies, local governments, special districts, and the federal government.
(B) The executive director shall appoint a director for each division contained in the organizational structure established by the board of directors, who shall serve at the pleasure of the executive director.
(C) For each division established by the organizational structure created by the board, the executive director must employ personnel and prescribe their duties, powers, and functions as he considers necessary and as may be authorized or directed by the board of directors.
Section 54-3-130. Compensation for the executive director and division directors shall be approved by the board of directors in a public vote. For the purpose of this section, compensation includes, but is not limited to, annual salary, bonuses, severance, and vehicle allowances."
SECTION 3. Section 54-3-140(5) of the 1976 Code is amended to read:
"(5) Shall appoint and employ and dismiss at pleasure such employees as may be selected by the board of the Authority and fix and pay the compensation thereof Shall adopt an organizational structure for authority operations implemented by the executive director;"
SECTION 4. Section 54-3-140 of the 1976 Code is amended by adding appropriately numbered new items to read:
"( ) Shall develop a long-range port development and capital financing plan, with a minimum twenty-year forecast period at the time of adoption that provides for the promotion, development, construction, equipping, maintaining, and operation of the state's harbors and seaports to maximize their economic benefit to the State. The plan must be revised at least every five years, to reflect and account for changing conditions. The long-range plan must be submitted to the Senate Transportation Committee, the House of Representatives Ways and Means Committee, and the advisory committee for consideration and comment prior to its final adoption by the board. The board must address each recommendation made by the committees in its final report;
( ) Shall review port operations and proposals for future operations and construction to determine whether utilizing a public-private partnership to achieve the current or proposed operational goals and development is the most advantageous method to the State and would result in the most timely, economical, efficient, and successful fulfillment of the operational goals or completion of the development project."
SECTION 5. Section 54-3-1040 of the 1976 Code is amended to read:
"Section 54-3-1040. At least once in each year the Authority shall publish once in some newspaper published in Charleston County a complete detailed statement of all moneys received and disbursed by the Authority authority during the preceding year. The statement must also be forwarded to the South Carolina State Ports Authority Advisory Committee and the Chairman of the Senate Transportation Committee and the Chairman of the House of Representatives Ways and Means Committee. Such statement shall also show the several sources from which such funds were received and the balance on hand at the time of publishing the statement and shall show the complete financial condition of the Authority authority."
SECTION 6. Article 11, Chapter 3, Title 54 of the 1976 Code is amended by adding:
"Section 54-3-1060. (A) For the purposes of this section, 'detailed description of the expenditure' means a description of an expenditure that enables the reader to distinguish that expenditure from other expenditures and is particular enough in its account of the expenditure that the reader is able to discern the purpose of the expenditure.
(B) The authority shall maintain a transaction register that includes a complete record of all funds expended over one hundred dollars, from whatever source for whatever purpose. The register must be prominently posted on the authority's internet website and made available for public viewing and downloading.
(1)(a) The register must include for each expenditure:
(i) the transaction amount;
(ii) the name of the payee; and
(iii) a statement providing a detailed description of the expenditure.
(b) The register must not include an entry for salary, wages, or other compensation paid to individual employees.
(c) The register must not include any information that can be used to identify an individual employee.
(d) The register must be accompanied by a complete explanation of any codes or acronyms used to identify a payee or an expenditure.
(2) The register must be searchable and updated at least once a month. Each monthly register must be maintained on the internet website for at least five years.
(B) The authority shall also maintain on its internet website a copy of each monthly statement for all of the credit cards maintained by the authority, including credit cards issued to its officers or employees for official use.
(1) The credit card number and any information that can be used to identify an individual employee on each statement must be redacted prior to posting on the internet website.
(2) Each credit card statement must be posted not later than the thirtieth day after the first date that any portion of the balance due as shown on the statement is paid. Each statement must be maintained on the website for at least five years."
SECTION 7. Chapter 3, Title 54 of the 1976 Code is amended by adding:
Section 54-3-1300. (A) The Senate Transportation Committee and the House of Representatives Ways and Means Committee must each conduct an oversight review of the authority and its operations at least once every two years. The committees may coordinate their reviews to reduce duplication.
(1) The oversight reviews must consider whether the authority is promoting, developing, constructing, equipping, maintaining, and operating the harbors and seaports of this State in an efficient, effective manner in accordance with all applicable laws and regulations.
(2) A written report of the findings from each oversight review must be published in the journals of both houses and made available on the General Assembly's internet website.
(B) Each committee may undertake any additional reviews, studies, or evaluations as it considers necessary.
Section 54-3-1310. (A) The oversight report required by this article must at least contain:
(1) a performance review of each member of the board during the previous two years;
(2) a performance review of the South Carolina State Ports Authority executive director; and
(3) an evaluation of the actions of the board, sufficient to allow the members of the General Assembly to better judge whether these actions serve the best interests of the citizens of South Carolina, both individual and corporate.
(B) To assist the committees in performing the performance reviews and evaluations required by this article, the committees may develop and distribute, as appropriate, an anonymous and confidential survey evaluating the board members and the executive director. At a minimum, the survey must include the following:
(1) knowledge and application of substantive port issues;
(2) the ability to perceive relevant issues;
(3) absence of influence by political considerations;
(4) absence of influence by identities of labor unions;
(5) courtesy to all persons appearing before the board;
(6) temperament and demeanor in general, preparation for hearings, and attentiveness during hearings; and
(7) any other issue the committee deems appropriate.
Section 54-3-1320. A draft of a board member's and executive director's performance review and the evaluations of the actions of the board, must be submitted to the appropriate party, and that party must be allowed an opportunity to be heard before the committee conducting the oversight review by the performance review or evaluation, as the case may be, is final. The final performance review of a board member must be made a part of the member's record for consideration if the member seeks reelection to the board."
SECTION 8. This act takes effect upon approval by the Governor.
This web page was last updated on January 29, 2009 at 11:56 AM