Three Berkeley County School District employees have been under investigation for ethics violations and misconduct in office since January.

The question now is: Who should pay to defend them?

An opinion from the state Attorney General’s Office indicates the school board shouldn’t have agreed March 12 to let the district foot the bill for lawyers to represent Superintendent Rodney Thompson, Deputy Superintendent Archie Franchini and Communications Director Amy Kovach in the investigation.

Berkeley officials recently learned of the 1997 opinion from the Attorney General’s Office that says “a school district is without authority to pay a school board member’s or an employee’s expenses of representation in a criminal proceedings.” Anyone can file a lawsuit to stop the action.

Opinions are “very thorough and comprehensive,” said Mark Powell, spokesman for the attorney general. “But they don’t carry the weight of the law. They say, ‘This is what the Attorney General’s Office believes the law to say.’ ”

The State Law Enforcement Division and the State Ethics Commission are investigating whether Thompson, Franchini and Kovach used district time and resources to promote Yes 4 Schools, a $198 million bond referendum to build and renovate schools. The Attorney General’s Office requested the investigation, which is ongoing.

On Monday, Kovach referred questions to Kathy Mahoney of the Columbia law firm Childs & Halligan, which represents the district.

Mahoney said the issue comes down to the fact that the board believes the employees acted in good faith during the referendum campaign.

Responding by email, Mahoney said the board’s statement from the March 12 meeting “fully explains the basis for the Board’s action.” In it, the board cited section 59-17-110 of state law, which requires defending employees accused in any action “done or omitted in good faith in the course of his employment.” A board policy is similarly worded.

“Under these circumstances, it is the District’s statutory obligation to provide legal representation for its employees,” Mahoney wrote.

Board Chairman Doug Cooper agreed.

“I believe our employees acted and continue to act in good faith for the benefit of the students of Berkeley County,” he wrote in an email.

But Daniel Island lawyer Josh Whitley, who filed the complaint that triggered the investigation, called the board’s decision to pay for lawyers “outrageous.”

“It appears to me that the School Board, as trustees of our monies, are doing a disservice to the children and the taxpayers,” he said. “The Attorney General’s opinion makes what should be obvious clear: Criminal acts can never be ‘good faith’ or ‘within the scope of employment’ of a governmental employee.”

School board member Scott Marino, who is Whitley’s brother-in-law, said he “was not aware of this opinion and was never informed by our district attorneys or the board chair. It is my belief we should revisit this issue ... and become compliant.”

He said he has not yet requested that the issue be on the agenda for the next meeting, which is May 13, but he plans to do so.

Meanwhile Monday, the Berkeley County Republican Party Executive Committee held a special meeting to discuss the issue and unanimously passed a resolution calling for Attorney General Alan Wilson to “fully investigate and prosecute any offenders of S.C. state law” in the case.

Party Chairman Terry Hardesty is a former school board member and Whitley is an executive committeeman.

“It’s not a legislative resolution,” Whitley said. “It’s just a political one, to support the attorney general’s investigation.”

State Sen. Larry Grooms attended the meeting but is not a member of the executive committee and did not vote.

“Josh has got the goods right now and if we don’t act, then shame on ourselves and shame on our state,” Grooms said. “If this goes unchallenged, what do you think is going to happen next?”

Reach Brenda Rindge at 937-5713 or