Recent editorials from South Carolina newspapers:
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Dec. 10
The Post and Courier on
We welcome S.C. Rep. Tommy Stringer’s interest in figuring out why the state’s judicial disciplinarians can’t find any trial judges worth disciplining.
A state lawmaker is troubled by what he says is a lack of transparency in the judicial screening process. He wants a public investigation into the issue.
Mr. Stringer is asking fellow members of the House Oversight Committee to look into the S.C. Commission on Judicial Conduct. This follows an investigation earlier this year by The Post and Courier’s Joseph Cranny and ProPublica, which found that the commission hasn’t recommended public action against a single circuit judge in the past two decades, despite more than 1,000 complaints.
It’s unclear whether the Oversight Committee has jurisdiction over the court’s disciplinary body, but if nothing else, legislative interest should push the Supreme Court to act. It is simply not possible that circuit judges are so flawless that not one of them has done anything in the past 20 years that merits so much as a public reprimand.
Indeed, Columbia’s State newspaper reported just last week that one circuit judge made Facebook posts in 2016 that denounced the “liberal left,” “illegal immigrants” and the “left wing main stream media” - clearly political opinions a judge should keep to himself. While this raised questions from the Legislature’s Judicial Merit Selection Commission - and led Judge Thomas Russo to withdraw his bid for reelection - it didn’t produce any public response from the Judicial Conduct Commission.
Ethics complaints against the state’s circuit judges are buried in an opaque system that shields the accused.
Rep. Stringer’s other concern is with the Merit Selection Commission itself. And while we agree that there’s a problem with how that body reviews judicial candidates, we worry that Mr. Stringer has misidentified it.
The problem is not that the merit panel uses anonymous surveys from lawyers to help it develop questions at ask judges up for reelection, as Mr. Stringer suggests; that’s a perfectly legitimate method for identifying topics of concern.
And it’s certainly not what Mr. Stringer and several other legislators imagine: the fact that the panel nominates rather than simply screening candidates. Prohibiting the Legislature from considering anyone other than the three nominees for each seat was the linchpin of the 1996 law that reformed a judicial selection process that was based entirely on who you knew, not what you knew. Before that change, politicians sewed up seats on the bench years in advance, judges were so tied in politically that they were able to keep their seats even in cases of clear incompetence, and the best way to become a judge was to be a member of the House.
The problem with the merit panel is that legislative leaders appoint all 10 of the members, six of whom are legislators. Then the Legislature elects the judges. So the panel lacks the independence that’s crucial to merit selection, which explains why it sometimes seems to play its own brand of politics rather than winnowing the field to the most qualified candidates.
South Carolina’s judicial discipline system, dominate by judge and operating in near-complete secrecy, is broken, as The Post and Courer’s “The Untouchables” investigation with ProPublica revealed. We need less secrecy and fewer judges investigating judges.
The solution is to turn the Merit Selection Commission into a true merit selection commission - one that’s independent.
A modest improvement would kick legislators off the commission and broaden the appointment authority. A bigger improvement would end the Legislature’s total control over the judiciary, by looping the governor into the selection process. If the Legislature insists on electing judges, then the governor should appoint the members of the merit panel - all of them. And if the Legislature is determined to control the merit panel, then it should allow governors to pick the judges from among the panel’s nominees.
When it comes to getting government to work, nobody has come up with a way to improve on the Founding Fathers’ idea of checks and balances.
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Dec. 10
The Index-Journal on the state’s Freedom of Information Act protocol:
Public bodies must release to the public the names, resumes and related application materials of those persons being considered for publicly funded advertised positions. This includes such posts as school superintendent, county manager/administrator and the like.
Generally, in the Lakelands at least, this has not been a problem. Public officials typically understand their obligations under the state’s Freedom of Information Act. Sometimes they reluctantly relinquish the information, often in an effort to protect some candidates’ privacy, and they do so by misinterpreting the law - purposefully or innocently - which states that materials must be released pertaining to not fewer than three finalists.
Often a body will interpret that to mean it can wait until it has finally identified the top three candidates for a job. But that’s not the way the law reads, a point we have often pointed out in filing our own Freedom of Information requests and in previous editorials.
But don’t take our word for it. In its December issue, the Municipal Association of South Carolina’s Uptown magazine addresses this very topic. While the magazine is written for those involved in municipal government, the article “Managing job finalists under FOIA” applies across the board among public bodies and agencies.
We commend this information to readers and public officials. Here, in its entirety, is the article:
In 2003, Spartanburg School District 7 was engaged in a thorough search process for a new school superintendent. From about 30 applicants, the school district cut the pool to five semifinalists, and then again cut the pool to two finalists before making a final decision.
The Spartanburg Herald-Journal newspaper then sent the school district a request under the South Carolina Freedom of Information Act for materials “relating to not fewer than the final three applicants.” The language of the request mirrored SC Code Section 30-4-40(a)(13), which allows public bodies to exempt from disclosure “(a)ll materials, regardless of form, gathered by a public body during a search to fill an employment position,” except for materials relating to “not fewer” than three finalists.
The school district, noting that there were only two finalists, offered materials relating only to those two candidates. The newspaper argued that this response did not comply with FOIA and sued the school district. The case went all the way to the South Carolina Supreme Court, where the newspaper won.
In the 2007 decision to the case, New York Times Co. v. Spartanburg County Sch. Dist. No. 7, the Supreme Court reasoned that “the term ‘final’ … refers to the last group of applicants, with at least three members, from which the employment selection is made.”
Because of this ruling, the school district had to provide materials relating to all candidates in the pool of five semifinalists, despite having assured those candidates that only the finalists - which it considered to be the smaller group of two people - would be publicly identified. The unsuccessful applicants would most likely have preferred to remain anonymous because of potential implications with their current employers.
This outcome of this case might create some surprises for public bodies. For example, if a city council conducts only one round of interviews with eight candidates and selects from that pool, then all eight candidates are “finalists,” for the purposes of FOIA, and the city must disclose materials for all eight. On the other hand, if city council interviews eight candidates and calls four of them back for second interviews, the “finalists” for the position are the four candidates who were interviewed a second time.
But consider in that second scenario - four candidates who are interviewed twice - what would happen if two drop out before the final decision, leaving only two people in the group. In that case, council would have to disclose materials either on the four candidates who interviewed twice, including the two withdrawn candidates, or on all eight candidates. Council cannot disclose information on only the two remaining candidates.
There are best practices that municipalities can adopt to limit these surprises. Most importantly, high-profile searches, especially for management positions that are likely to attract FOIA requests, should have at least one cut to a pool of no less than three candidates, who received notice that their names may be disclosed. Otherwise, council may have to disclose materials on the entire pool.
Making high-profile hires is a consequential process for cities and towns and not just because of the performance and leadership of the new hire. The degree of professionalism shown in the process itself can impact the municipality’s reputation, and handling the announcement of finalists appropriately is an important part of that.
Online: http://www.indexjournal.com/
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Dec. 10
The Island Packet and The Beaufort Gazette on the mayor over stepping his positional boundaries:
Hilton Head Island Town Council has a lot of explaining to do.
Mayor John McCann has proposed vast changes that would impact the daily lives and taxes of islanders with no public discussion, no cost analysis, no public input and no vote by Town Council.
In fact, the proposal blindsided at least one Town Council member. And citizens had no clue about it until The Island Packet got hold of a letter sent last month from McCann to Beaufort County Council.
Only Town Council should make decisions McCann outlined in the letter.
He says the town will:
- No longer pay the Beaufort County Sheriff’s Office $3 million for police protection on Hilton Head.
- Accept ownership and responsibility of the 76 county-owned roads on the island.
- Take over responsibility for six county-maintained parks on the island: Barker Field and Barker Field extension, Crossings Park, Bristol Sports Arena, Chaplin Community Park and Old Schoolhouse Park.
-And relieve the county of around $300,000 in subsidies to the Island Recreation Association.
With a single letter, and with no public input, decades of public policy would be turned upside down.
The issue is governance. Did the public elect a mayor, or a czar? Is Town Council simply not paying attention? Or are secretive deals being cut outside the purview of publicly posted meetings?
Any of those possibilities is disastrous to local government.
The mayor’s deal has no logic. He says the money the town pays the Sheriff’s Office for police protection is “offensive” because it is double taxation. That is, town residents already pay the Sheriff’s Office in their county taxes, so McCann is going to quash the double taxation. However, at the same time McCann proposes that the town turn down millions of county tax dollars now devoted to the island. He claims it’s an even swap, but the public has seen no proof of that.
So what’s the deal? It would be nice to know.
If, as McCann says, Hilton Head is getting no more service from the Sheriff’s Office than unincorporated Beaufort County, every mayor and every Town Council since the original contract was signed in 1984 have been bamboozled. The deals with the Sheriff’s Office have been quite detailed over those years, including extra money being paid for specific types of enforcement Town Council wanted, and town ownership of a fleet police cruisers.
It has been the public’s understanding from the time the island was incorporated in 1983 that instead of paying for a town police department, the “limited-services” town government would pay the Sheriff’s Office extra for extra services. That cost has risen from $1.1 million in the first year to $3.6 million today, and there have been legitimate debates along the way over whether the town was getting its money’s worth, and whether the town should create its own police department. But the public understanding has been that the town was getting more service from the sheriff than the rest of Beaufort County because it pays more.
McCann’s proposal also goes against conventional wisdom in seeking to take over 76 county roads. For good reason, the state of South Carolina is desperately trying to turn roads over to local governments. That good reason is money. Road ownership is a bottomless pothole for tax dollars, and it is the gift that keeps on giving. Yet, McCann’s offer to the county lacks any analysis, or discussion, of what this cost will be to the town. That is unacceptable.
And if McCann has decided the town will get whole hog into the parks-and-recreation business, what other services are next? Social services? Housing? The arts?
All of this needs citizen input, and public discussion by Town Council, followed by a public Town Council vote.
Beaufort County should ignore McCann’s letter, unless he wants to undertake these expenses on his own. His letter does not represent the residents of Hilton Head, or the democratic process, which gives the Town Council a lot of explaining to do.
Online: https://www.islandpacket.com/
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