Tracing the Berkeley school ethics case Results of Yes 4 Schools investigation expected soon

Berkeley County Communciations Director Amy Kovach. (Provided) 4/2013

The state is investigating Berkeley County School officials for their role in last year’s Yes 4 Schools bond referendum campaign, trying to figure out if they spent school money and time on the campaign.

The State Law Enforcement Division is looking into allegations of ethics violations and misconduct in office related to the $198 bond referendum, in which voters approved funding to build and renovate schools.

Josh Whitley, a local trial lawyer, believes that employees used district time and resources to work on the campaign, and filed a complaint with the state Attorney General’s office that led to this investigation.

Neither the district nor the Attorney General’s Office has named the employees being investigated, but Superintendent Rodney Thompson, Deputy Superintendent Archie Franchini and Communications Director Amy Kovach were connected to the Yes 4 Schools program and the allegations against it.

Some have questioned why those employees are still on the job and why the district is footing the bill for lawyers to represent them.

District officials refer all questions to their lawyer, Kathy Mahoney of Childs & Halligan, who says the employees being investigated acted in “good faith,” making it the district’s duty to defend them.

Whitley says the Attorney General’s opinion makes it clear that “criminal acts can never be ‘good faith’ or ‘within the scope of employment’ of a governmental employee.”

Those close to the investigation say it is nearing the end. Here’s what has happened so far:

January 2012 — District officials and board members start talking about the possibility of having a school improvement bond referendum to build new schools and renovate others to ease overcrowding in the rapidly growing district. Over the next several months, work begins behind the scenes, with officials organizing a strategy for the campaign.

July 19 — In response to an inquiry from Allyson Duke, chief financial officer of Dorchester District 2, Kovach sends an email explaining the campaign so far. Dorchester is also planning a school-improvement referendum.

In it, Kovach writes: “The campaign is being run internally from my desk as the BCSD point of contact for all marketing and campaign details.”

She also writes, “I have attached for you copies of my materials to date that I have produced and that the campaign will be working with as they gear up.” One of the attachments to the email is McNair Law Firm’s “Referendum Do’s and Don’ts.”

July 24 — Berkeley School Board votes to ask voters to approve a $198 million school improvement program.

Aug. 28 — Whitley attends a school board meeting where Kovach gives the board an update on the campaign.

“Just about every night from here through Oct. 18, we have members of the senior cabinet, myself, Mr. Franchini, Dr. Thompson and others who will be out and about at open houses presenting information,” she says. “... The district employee or school board member is able to present the facts about the referendum. ... Then we turn it over to the community member, who is our advocate. That’s when we expect that person to go for the ask, and the ask is asking for the yes vote.”

She specifies, when talking about Web and social media, that the information is coming from the campaign, not the district, but later says, “Rodney can pretty much clear his calendar from Oct. 2 to Nov. 5 because he’ll be where I tell him he’s going to be. If he needs to be somewhere, we’ll make sure that he or a community leader are there, at the campaign’s disposal.”

In the days that follow, Whitley starts making inquiries about whether district employees used work time and resources to promote the campaign.

Sept. 5 — Kovach writes in a midday email to a district employee that she hasn’t gotten to a certain task because she’s been “working on referendum stuff for Rodney that he needs asap.” In another note, she writes, “I just need a ½ day without referendum work ...”

Sept. 17 — Another Kovach midday email to a district employee says “I can’t eat, can’t sleep. am working 7 days a week nearly 15 to 16 hour days.”

Sept. 25 — Yes 4 Schools co-chair Laura Varn, a volunteer, gives the campaign update at the school board meeting, which Kovach had been doing until then.

Oct. 2 — District officials kick off the referendum campaign at 2 p.m. at Stratford High School, with students, teachers and principals in attendance.

Also on this day, Whitley and Thompson meet in his office to discuss Whitley’s concerns. When Whitley first took his concerns to district officials, he offered to drop his complaint if the district issued a written apology to employees and the community and admitted guilt, but the district declined.

Oct. 9 — At a board meeting, Whitley speaks out against the referendum and board member Donna Marino questions whether the district is committing ethics violations by using its resources to produce a Yes 4 Schools video.

Oct. 10 — Whitley files a Freedom of Information Act request with the district asking for emails and other materials associated with the campaign sent from employees’ emails.

The district issues a statement that “no district resources have been used to create, produce or distribute” the video Marino discussed the day before.

Oct. 15 — Thompson sends a letter to all district employees “to remind all employees of the State Ethics laws that relate to campaigns and ballot measures.”

Nov. 2 — Whitley says he will file an ethics complaint regardless of the outcome of the investigation.

Nov. 4 — The district issues a statement that quotes Thompson: “If any district employee sent an email on district equipment that could be interpreted as being in support of the referendum, I’m sure their enthusiasm was generated by what they thought was in the best interest of the students of Berkeley County. Our intentions have been to provide information and access to all parties within the SC Ethics guidelines.” Thompson reiterates in the statement that he believes any district employees who worked on the campaign during the work day were within the scope of the law.

Nov. 6 — The referendum passes by about a 60-40 margin.

Mid-November — Whitley receives the response to his FOIA request: two months of emails sent from Thompson, Franchini and Kovach, in addition to credit card records and other documents. The district did not include attachments to the emails.

Dec. 9 — Having found what he calls “absolute disregard of South Carolina law and District Policy,” Whitley sends a follow-up FOIA request asking for all emails related to the referendum and all the attachments that had been omitted from the earlier emails. Several emails are from Kovach to her secretary, requesting that the secretary make copies of materials to hand out.

Jan. 15 — Whitley meets with Attorney General Alan Wilson and his senior staff, including Chief Deputy Attorney General John McIntosh, to present his findings.

Jan. 17 — McIntosh writes a letter requesting an investigation from SLED chief Mark Keel and state Ethics Commission Executive Director Herbert R. Hayden Jr.

March 5 — The Attorney General’s office confirms to The Post and Courier that an investigation is under way.

March 12 — The school board votes to pay for independent lawyers to defend “the employees involved” in the investigation.

March 19 — Former school board member Terry Hardesty notes that the employees are not on administrative leave while under investigation. “It was pretty much our general policy to suspend anyone who was under investigation,” says Hardesty, who was on the board from 2006-2010.

April 29 — Whitley questions whether the district should foot the bill for the lawyers. A 1997 opinion by the Attorney General’s Office says “a school district is without authority to pay a school board member’s or an employee’s expenses of representation in a criminal proceeding.” The district’s lawyers, Childs & Halligan, reiterate the March 12 statement, which says the district believes the employees acted in “good faith,” and say it’s the district’s duty to pay for their representation.

Also, the Berkeley County Republican Party Executive Committee holds a special meeting during which Whitley, a member, gives a presentation. The committee votes unanimously to pass a resolution calling for Attorney General Alan Wilson to “fully investigate and prosecute any offenders of S.C. state law” in the case.

Today — Sources close to the investigation say it is near its end.

Attorney General’s Office spokesman Mark Powell says that office has not yet received the completed report. He would not comment on the investigation specifically, but says that typically, the Attorney General’s Office will receive the report and decide on the appropriate action.

If there is not enough evidence to prove wrongdoing, nothing will happen.

If it is determined that there was an actionable offense, charges could be filed.

Those found guilty of ethics violations could receive a penalty of $2,000. If it is determined that there was intent to disregard the law, it could be considered a criminal violation, which is a misdemeanor and punishable with fines up to $5,000 or one year in prison.

Additionally, any taxpayer can sue the district over the payment of the fees for independent counsel.

Reach Brenda Rindge at 937-5713 or