South Carolina needs a new law to effectively deal with corruption by public officials and public employees. Fresh allegations surface with disturbing frequency in what some describe as a culture of corruption.
Most believe they know corruption when they see it but might struggle to precisely describe conduct against public integrity. That’s not so surprising when you consider that no statute exists defining public corruption. Instead, state law addresses the issue through a mix of prescribed ethics and prohibited acts. A law defining public corruption might make investigations and prosecutions easier.
Current statutes define specific examples of conduct most regard as corruption but typically do not provide a general definition of corruption. Corruption has been defined in a trial court’s jury instruction as “… an act done with intent to gain advantage, not consistent with official duty and rights of others. Corrupt is defined to be dishonest, without integrity, guilty of dishonesty. ...”
But the lack of statutory clarity can lead to confusion and present a challenge for investigators and prosecutors assessing facts to determine whether a crime was committed and whether anyone should be charged.
Multiple laws fall under what might be called a corruption umbrella. But so far, no law has been enacted to provide a clear definition of corruption as an independent crime. Whether some would resist such an attempt or might be uncomfortable with a law that’s “too close to home” is unknown.
South Carolina statutes commonly used to bring public integrity charges avoid the essential wrong of corruption: using undue influence for advantage. The often-used common law crime of misconduct in office tends to be more subjective, making it more difficult to prosecute.
The common law offense leaves unsettled whether specific behaviors are covered, and might not apply to all public employees. There is a general misconduct statute, but it is limited in scope and penalty.
Embezzlement, fraud, malfeasance, bribery, extortion, election law crime, jury tampering, obstruction of justice, disclosure of confidential information for financial gain and other offenses are all examples of corruption. Each relies on undue influence.
But a clear anti-corruption law could make the offering, giving, requesting or accepting of an advantage to or by a public official or employee that is unavailable to everyone under similar circumstances unlawful, for example. It should apply equally to acts of commission and omission and should address corruption by degrees ranging from minor to extremely serious. Such a law would send a clear warning: taking advantage will not be tolerated.
The law is a tool to dissuade those who would consider corrupt acts. An unambiguous law would go far to counter corruption. It would make illegal activity associated with the use of undue influence by public officials and employees.
Some will say such a definition is too broad. They might assert a police officer accepting a free cup of coffee would be guilty of corruption. But corruption casts a wide shadow and requires a broad law to be effective. Formulas would emerge to effectively assess specific behaviors. It’s possible that questions would be asked like those considered by the Ethics Commission when questions arise: Does the behavior benefit (advantage) one party or everyone in a category?
Changing the culture of corruption requires a new approach. But change it will if enough insist. A statute defining corruption might make a difference in customs and institutions if citizens, including investigators and prosecutors, have a better concept of corruption as a guide. I am not an attorney and this proposal could be flawed. But when investigating public corruption during my law enforcement career, I learned corruption is always about advantages wrongly sought or given. It is time the law said so clearly.
Mark Huguley is a retired assistant director of SLED and currently the mayor of Arcadia Lakes in Richland County.