Sanford v. State Ethics Com'n
| Decision Date | 05 November 2009 |
| Docket Number | No. 26741.,26741. |
| Citation | 385 S.C. 483,685 S.E.2d 600 |
| Parties | Governor Mark SANFORD, Petitioner, v. SOUTH CAROLINA STATE ETHICS COMMISSION and Herbert R. Hayden, Jr., in his official capacity as Executive Director of the State Ethics Commission, Respondents, The Honorable Robert W. Harrell, Jr., Speaker of the South Carolina House of Representatives, Intervenor. and The Honorable Robert W. Harrell, Jr., Speaker of the South Carolina House of Representatives, Petitioner, v. South Carolina State Ethics Commission and Herbert R. Hayden, Jr., in his official capacity as Executive Director of the State Ethics Commission, Respondents, Governor Mark Sanford, Intervenor. |
| Court | South Carolina Supreme Court |
Karl S. Bowers, Jr., Kevin A. Hall, and M. Todd Carroll, all of Columbia, for Petitioner and Intervenor Governor Mark Sanford.
Charles F. Reid, Bradley S. Wright, Bonnie B. Goldsmith and Patrick G. Dennis, all of Columbia, for Petitioner and Intervenor Speaker Robert W. Harrell, Jr.
Cathy L. Hazelwood, of Columbia, for Respondents South Carolina State Ethics Commission and Herbert R. Hayden, Jr., in his official capacity as Executive Director of the State Ethics Commission.
These matters involve the confidentiality of an ethics investigation involving Governor Mark Sanford which is currently pending before the South Carolina State Ethics Commission (Commission).
On September 30, 2009, Governor Sanford petitioned this Court for a writ of mandamus directing the Commission to comply with the statute and regulations regarding confidentiality of Commission proceedings. More specifically, the Governor requested that the Commission not be permitted to publicly disseminate any investigatory reports or other information about this investigation. The Commission filed a return in opposition to the Governor's petition for a writ of mandamus.
Robert W. Harrell, Jr., Speaker of the South Carolina House of Representatives, then filed a motion to intervene in the Governor's action. We granted that motion, and the Speaker filed a return in opposition to the Governor's petition. In addition, Speaker Harrell filed his own petition for a writ of mandamus in the Court's original jurisdiction. The Speaker asked the Court to direct the Commission to issue "its investigation materials and information to the House of Representatives" because the House is "the sole prosecuting authority for purposes of impeachment." The Commission filed a return in opposition to the Speaker's petition. The Governor sought to intervene in the Speaker's action; we granted that request.
Because of the exigencies related to the case, we agreed to entertain this matter in the Court's original jurisdiction, on an expedited basis, and heard oral arguments of the parties on October 19, 2009. On October 21, 2009, we issued an order requesting additional materials and briefs from the parties on the issue of waiver. With that briefing now complete, the matter is ripe for our decision.
By letter dated August 18, 2009, Governor Sanford was informed by Herbert R. Hayden, Jr., Executive Director of the Commission, that the Commission had determined an ethics complaint against the Governor set forth "sufficient facts" to warrant an investigation. See S.C.Code Ann. § 8-13-320(10)(c) (Supp.2008). The Governor was informed that: (1) he would be contacted by an investigator concerning any statements he desired to make; and (2) he could provide a written response to the complaint and include any documentation he would like for the Commission to consider.
Significantly, this letter also advised the Governor of the following:
In accordance with [S.C.Code Ann.] Section 8-13-320(9) and (10), all complaints, investigations, inquires [sic], hearings, and accompanying documents are confidential unless the respondent waives the right to confidentiality in writing to the Commission, or the Commission issues a public disposition....
(Emphasis added).
By letter to Hayden dated August 24, 2009, counsel for the Governor stated it was his understanding that if the Governor waived his right to confidentiality the following would apply:
1. The only information that will be made public during the pendency of this matter is the fact that an investigation is being conducted and the Complaint Form itself;
2. The investigation and the results thereof, including any statements or documents, will remain confidential and will not be made public at any time, either during or after the conclusion of this matter;
3. If a hearing is held in this matter, such hearing will be held in executive session unless Governor Sanford requests an open hearing; and
4. Any action taken by the Commission will be made public upon final disposition.
(Emphasis in original). Counsel for the Governor further represented that his understanding was based on information Hayden had given him during their recent discussions regarding the impact of a potential waiver by the Governor.
Hayden responded to counsel's letter with his own letter dated August 27, 2009, which stated:
If Governor Sanford waives his right to confidentiality, the following will apply:
1. The only information that will be made public during the pendency of this matter is the fact that an investigation is being conducted and the Complaint Form itself;
2. The investigative report, including any statements or documents, will not become part of the public record; however, any testimony given, documents entered into evidence at an administrative hearing, and the Commission's findings will become a part of the formal record along with the Commission's Decision and Order, and will be public;
3. If a hearing is held in this matter, such hearing will be held in executive session unless Governor Sanford requests an open hearing; and
4. Any action taken by the Commission will be made public upon final disposition.
(Emphasis added). Hayden also stated that the only item (Emphasis added).
The following day, August 28, 2009, the Governor himself (i.e., not counsel for the Governor) sent a signed letter to Hayden setting forth his record of "going the extra mile in fighting for transparency in our state government." The Governor's August 28th letter further stated as follows:
In an effort to once again go the extra mile, I would like to waive my right to confidentiality in your upcoming ethics probe. I believe that what the whole of our travel records will show is that this administration has worked very hard to be a good steward of taxpayer resources.
It's also my hope that my decision to take the unilateral step of waiving confidentiality will serve to encourage both the public to invite, and legislators to lead, in changing the current system. In this system all constitutional officers, and every state employee, is held to one standard — while the General Assembly lives under a completely different standard without transparency. I strongly believe this needs to change, and again do hope this is one of the byproducts of what takes place this fall.1
(Emphasis added.)
In his petition for a writ of mandamus, Governor Sanford maintains he actually intended his August 28th letter to be a "limited" waiver of confidentiality and not the unconditional waiver conveyed by the letter's clear terms.
The Governor's counsel met with Hayden on September 8, 2009. Hayden advised counsel that the Commission intended to publicly distribute its preliminary investigative report to the House of Representatives.
On September 14, 2009, the Governor filed a Motion to Enjoin Dissemination of Investigative Report with the Commission.2 By letter dated September 15, 2009, Cathy Hazelwood, counsel for the Commission, advised the Governor's counsel that the motion was premature because the investigation into this matter is "ongoing and no report has been begun, let alone completed." She explained the Governor would receive the report "when the Commission receives the report," and at that time, there would be an opportunity "to argue any and all motions related to this matter."
Regarding Speaker Harrell's petition for a writ of mandamus, he argues that pursuant to Article XV, Section 1 of the South Carolina Constitution, the House has the sole power of impeachment.3 Therefore, because the House of Representatives is the prosecutorial authority for purposes of impeachment, the Speaker contends this Court should order the Commission to release its investigation materials to the House.
1. Has either the Governor or the Speaker met the requirements for the issuance of a writ of mandamus?
2. Does the Governor's August 28th letter constitute a complete waiver of confidentiality under S.C.Code Ann. § 8-13-320(10)(g)?
This Court has the power to issue writs or orders of injunction or mandamus. S.C. Const. Art. V, § 5; S.C.Code Ann. § 14-3-310 (1976). The writ of mandamus is "the highest judicial writ known to the law." Willimon v. City of Greenville, 243 S.C. 82, 86, 132 S.E.2d 169, 170 (1963); accord Edwards v. State, 383 S.C. 82, 678 S.E.2d 412 (2009); City of Rock Hill v. Thompson, 349 S.C. 197, 563 S.E.2d 101 (2002); Ex parte Littlefield, 343 S.C. 212, 540 S.E.2d 81 (2000). The "principal function" of mandamus "is to command and execute, and not to inquire and adjudicate; therefore, it is not the purpose of the writ to establish a legal right, but to enforce one which has already been established." Willimon, 132 S.E.2d at 171; see also Porter v. Jedziniak, 334 S.C. 16, 18, 512 S.E.2d 497, 497 (1999) (); Redmond v. Lexington County Sch. Dist. No. 4, 314 S.C. 431, 445 S.E.2d...
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