The legal team for the Berkeley County School District communications director says South Carolina Attorney General Alan Wilson acted unprofessionally and should not prosecute her on ethics and forgery charges, according to a motion filed by her lawyer.
Amy Kovach wants the Yes 4 Schools case handled by a local solicitor instead, according to a Motion to Disqualify Attorney General filed by Kovach’s lawyer, Jerry Theos, in Berkeley County on Jan. 20.
“(T)he Attorney General is intent on convicting Mrs. Kovach at any cost without regard to whether he is doing justice,” according to the motion. He “will use any means necessary to obtain a conviction. The public should be terrified by this abuse of prosecutorial power.”
When reached Monday, Theos said the motion speaks for itself and declined to comment further.
Kovach did not return phone calls.
Kovach was indicted by a Berkeley County grand jury on a misdemeanor ethics charge in February and a felony forgery charge in September in connection with 2012’s Yes 4 Schools campaign. The charges stemmed from allegations that
Kovach was using district time to promote the Yes 4 Schools campaign.
The ethics charge carries a fine of up to $5,000 and a year in jail and the forgery charge is punishable by a fine and up to five years in jail.
Kovach has been on paid leave from her $79,995-a-year job since she was indicted on Feb. 11.
According to the motion, Wilson is violating the American Bar Association’s Rules of Professional Responsibility and Kovach’s 6th Amendment rights to counsel.
The motion also says Wilson has a conflict of interest because he is on the advisory board for Santee Cooper, which supported the referendum with a $15,000 donation and allowed two employees to work on the campaign.
In addition, the State Law Enforcement Division searched Kovach’s computer despite a pending motion from Theos seeking a protective order because the computer contained attorney-client communications and work product, according to the motion.
“The Attorney General’s Office strongly denies these allegations,” said spokesman J. Mark Powell on Monday. “This is yet another attempt by defense lawyers to put the prosecutor on trial. Our response will completely refute these ridiculous accusations.”
The office will file its response “in due course,” he said.
Last year, lawyers for former House Speaker Bobby Harrell also filed a motion seeking Wilson’s removal from his ethics case, but Wilson handed it off to 1st Circuit Solicitor David Pascoe before a judge could rule on the motion. Harrell pleaded guilty in October to six counts of misusing his campaign account for personal benefit and resigned.
The investigation into the Yes 4 Schools referendum started on Jan. 17, 2013. Superintendent Rodney Thompson has said he is a subject of the investigation, and according to a state Freedom of Information Act response to The Post and Courier from district lawyers Childs & Halligan, Deputy Superintendent Archie Franchini has also been reimbursed $30,000 for lawyer’s fees in connection with the probe. Neither has been indicted.
The school board has maintained that state law requires it to pay for the private lawyers because the employees were acting in good faith in the scope of their jobs during the $198 million bond referendum campaign to build and renovate schools.
Retired Circuit Judge Vic Rawl, who was paid $7,000 by the district, agreed in March with the board’s decision to continue paying the lawyers’ fees after consulting with University of South Carolina law professor emeritus John P. Freeman.
As of Oct. 31, the district has reimbursed $130,912 to Kovach for Theos’ services. In all, the district has paid more than $300,000 to Kovach, Franchini and the law firm of Childs & Halligan in connection with the investigation.
The Attorney General’s office put the district on notice in September that it is considering taking legal action to recover the money spent for the lawyers, and in December the school board voted to stop defending Kovach on the felony charge.
In doing so, the motion says, “BCSD bowed to pressure from the Attorney General.”
According to the court filing, Kovach sought legal opinions on her right to the fees from Gregory B. Adams, associate profession at the University of South Carolina School of Law, and Nathan Crystal, a Charleston and New York lawyer who has taught and consulted on professional responsibility for almost 40 years.
Both say Wilson has violated the South Carolina Rules of Professional Conduct, with Crystal concluding that “the Attorney General has engaged in other improper conduct in this proceeding” including conflict of interest of being on the Santee Cooper advisory board.
Santee Cooper supported the campaign financially and allowed vice president of human resource management Laura Varn and another employee to work on the campaign, according to the motion.
Varn is “equally or more culpable than Mrs. Kovach” and Wilson “has specifically targeted her and ignored Santee Cooper and its’ employees’ conduct,” the motion states. “While Mrs. Kovach has absolutely no desire to see any other individual go through the debilitating humiliation of a criminal prosecution for actions taken solely for the benefit of schoolchildren, the glaring fact remains that many others similarly situated have been ignored.”
Mollie Gore, manager of corporate communication for Santee Cooper, declined to comment on the motion.
Varn served as co-chairman of the Yes 4 Schools campaign, she said.
Wilson is on Santee Cooper’s advisory board per state law, she said. The board is a function of office that includes the attorney general, the governor, the secretary of state, the comptroller general and the state treasurer.
She also confirmed that Santee Cooper contributed $15,000 “to help sponsor the Berkeley Chamber’s efforts to promote Berkeley County’s education and future work force needs,” consistent with the utility’s practices. It does not contribute to political candidates or parties, she said.