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Nearly eight months after a “destroyed” State Ethics Commission letter was provided to The Nerve, the longtime director of the state ethics-watchdog agency still won’t explain how the letter exists despite his earlier statements to the contrary.
But in a written response July 18 to The Nerve, Herb Hayden said a pending lawsuit against him and the Ethics Commission in connection with the letter in question has nothing to do with a new media policy announced at a recent commission meeting.
James Burns, the commission chairman, said during the July 16 meeting that for now, all comments to the media on behalf of the agency would come from Hayden – effectively muzzling the agency’s main spokeswoman, Cathy Hazelwood, who serves as the commission’s chief lawyer and deputy director.
Hayden afterward told a reporter from The State newspaper that the main reason for the new media policy was that the commission didn’t “want to give the impression that Hazelwood as the prosecutor is already predisposed to any particular action on any particular case.” Adding, “Her role is to evaluate the evidence presented during an investigation.”
In an email to Hayden, The Nerve asked if the pending lawsuit against him and the commission, or any other specific incident or case, spurred the change in the agency’s media policy.
“The answer to both questions is no,” Hayden responded in writing, though he didn’t reply to a follow-up written question about the suit.
Burns, an attorney with the Nelson Mullins law firm in Columbia, and Christian Stegmaier, an attorney with the Collins and Lacy law firm in Columbia and who represents Hayden and the commission in the suit, referred The Nerve’s questions about the new media policy to Hayden.
In the suit, filed Jan. 10 in Richland County Circuit Court, the S.C. Public Interest Foundation, a Greenville-based, government watchdog organization, and Edward “Ned” Sloan, the foundation president, contend that Hayden and the commission violated the state Freedom of Information Act by “responding with a falsehood” to The Nerve about the “destroyed” letter.
The Nerve on Sept. 5, 2013, sent a request under the FOIA to Hayden for a copy of an Aug. 28, 2013, letter written by Hazelwood to Gov. Nikki Haley. In that letter, Hazelwood directed the Republican Haley to reimburse the state for the costs of travel for her and her campaign staff to attend a fundraising event on June 27, 2013, at a North Carolina resort for a group with ties to GOP N.C. Gov. Pat McCrory.
Questions about the trip surfaced after media outlets reported that the State Law Enforcement Division, which provides security for Haley, had not revealed initially that she was involved in a traffic accident at the resort involving a state-owned vehicle driven by a SLED agent. Haley was not injured, authorities said.
Although Haley’s campaign staff had received campaign contributions that day, Hayden told The Nerve in a Sept. 30, 2013, email that when he learned the event was a fundraiser for a “non-profit and not a campaign event, I determined that the letter (written by Hazelwood to Haley) was not necessary.”
Under state law, the governor appoints all nine members of the Ethic Commission’s governing board, with consent of the Legislature. Board members serve five-year terms, though they can continue serving indefinitely in “holdover status” after their terms expire, as The Nerve reported last year.
Hayden in his initial Sept. 26, 2013, email response to The Nerve’s FOIA request said only, “No letter was sent to Governor Haley.”
When The Nerve in a follow-up request on Sept. 27, 2013, pointed out that the FOIA required the release of the letter regardless of whether it was sent to Haley, Hayden in an email response that day said, “The letter was destroyed when the decision was made that it was not necessary.”
After The Nerve on Sept. 30 requested under the FOIA an electronic copy of the letter, Hayden replied by email that the document was “destroyed, both hard copy and electronic copy.”
The Nerve, however, on Nov. 27, 2013, obtained, through another FOIA request, an Aug. 28, 2013, email from Hazelwood to Butch Bowers, an attorney for Haley, which contained a scanned, signed copy of the letter. The Nerve initially reported about the existence of the letter in a Dec. 2, 2013, story.
“The letter I mailed is attached,” Hazelwood told Bowers in the email, which was copied to Hayden.
Contacted recently about the pending lawsuit against Hayden and the Ethics Commission, veteran media lawyer Jay Bender, who is not involved with the suit, told The Nerve he wasn’t aware of any state court ruling dealing with the issue of whether a government official violated the FOIA by falsely claiming that a requested public record didn’t exist.
“It’s the denial that can trigger the violation, no matter the form of the denial,” Bender said.
Contacted recently by The Nerve, Greenville lawyer Jim Carpenter, who represents the S.C. Public Interest Foundation and Sloan in the lawsuit, said he was vacationing and wasn’t aware of the new media policy announced at the Ethics Commission meeting.
Carpenter said the question of whether a “false denial” of the existence of a public record is a violation of the FOIA is “one of the issues still pending in the lawsuit.”
“Common sense would say, ‘Yes,’” Carpenter said.
The suit asks for a judge’s ruling that Hayden and the commission violated the FOIA, the awarding of plaintiff attorney fees and costs as allowed under state law, and “such other and further relief as the Court deems just and proper.”
No court hearings have been held yet. Carpenter estimated a ruling likely is “10 to 15 months” from the date of filing of the suit.
In their written response to the suit, Hayden and the commission denied violating the FOIA, contending that the Aug. 28, 2013, letter from Hazelwood to Haley was “nothing more than a ‘draft’ and was arguably not a ‘public record’ under the FOIA.” They also said the letter was “never signed nor was it formally transmitted to the governor via the United States Mails.”
In a recent email to Hayden, The Nerve asked how he could contend in the suit that there was only an unsigned draft of the letter when a signed copy had been obtained by The Nerve.
No response was given.
Rick Brundrett is a senior reporter for The Nerve.