State Ethics Commission v. Houston

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

State Ethics Commission, Respondent,

v.

Charles E. Houston, Jr., Appellant.

Appellate Case No. 2018-002106

Appeal From The State Ethics Commission

Unpublished Opinion No. 2021-UP-176
Submitted April 1, 2021 – Filed May 19, 2021
Withdrawn, Substituted, and Refiled, August 25, 2021

AFFIRMED

Charles E. Houston, Jr., of Fayetteville, Georgia, pro se.

General Counsel Courtney Michelle Laster, of the State
Ethics Commission, of Columbia, for Respondent.

PER CURIAM: Charles E. Houston, Jr. appeals an order of the State Ethics
Commission's Appellate Panel affirming the decision of the Commission's Hearing
Panel, which found Houston violated the Ethics, Government Accountability, and
Campaign Reform Act (the Act)1 by failing to file a certified campaign report

1
S.C. Code Ann. §§ 8-13-100 to -1520 (1986, 2019, & Supp. 2011).
fifteen days before the November 6, 2012 election. The Appellate Panel also
affirmed the Hearing Panel's assessment of a $1,900 late-filing fee for Houston's
certified campaign report and imposed an administrative fee of $500. On appeal,
Houston argues (1) section 8-13-1308 of the Act does not clearly apply to
candidates for public office who have not received any campaign contributions and
the statute is ambiguous and perniciously vague; (2) the Hearing Panel erred in
denying his Rule 12(b)(6) motion to dismiss because he did not have any campaign
contributions or expenditures to report under section 8-13-1308; (3) he was
prejudiced and his due process rights were violated by the Commission's failure to
provide him, upon his request, with the appropriate forms and notice of the
reporting requirements of section 8-13-1308 as required by section 8-13-320(1);
(4) the Hearing Panel lacked jurisdiction because only two of the statutorily
required three members appeared; thus, the entire proceeding was null and void;
(5) the Commission did not provide him with adequate notice because he did not
receive the notice the Commission sent by certified mail; (6) his due process rights
were violated by the Commission's actions to assess penalty and daily fines against
him prior to his receiving notice of the required filing; and (7) the Commission
lacked jurisdictional authority to impose the sanction of a public reprimand against
him because he was a candidate for town counsel and not a candidate for the state
legislature or other statewide elected office. We affirm.

Panel hearings before the Commission are conducted pursuant to the
Administrative Procedures Act (the APA).2 See S.C. Code Ann. § 8-13-320(10)(j)
(Supp. 2011) ("A panel of three commissioners must conduct a hearing in
accordance with [the APA], except as otherwise expressly provided."). "[A]
respondent may apply to the [C]ommission for a full [C]ommission review of the
decision made by the [C]ommission panel." S.C. Code Ann. § 8-13-320(10)(m)
(Supp. 2011). A full Commission review is the final disposition of the complaint
before the Commission. Id. A respondent may appeal the final disposition to this
court. Id. Under the APA,

[An appellate] court may not substitute its judgment for
the judgment of the agency as to the weight of the evidence
on questions of fact. [An appellate] court may affirm the
decision of the agency or remand the case for further
proceedings. [An appellate] court may reverse or modify
the decision if substantial rights of the appellant have been

2
S.C. Code Ann. §§ 1-23-10 to -680 (2005 & Supp. 2020).
prejudiced because the administrative findings,
inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(5) (Supp. 2020).

First, Houston's argument that the Act does not clearly apply to him is without
merit because the Act's plain language conveys a clear and definite meaning that it
applied to Houston. See Rainey v. Hodges, 341 S.C. 79, 85, 533 S.E.2d 578, 581
(2000) ("The cardinal rule of statutory construction is to ascertain and effectuate
the intent of the legislature."); id. ("Under the plain meaning rule, it is not the
court's place to change the meaning of a clear and unambiguous statute."); id.
("Where the statute's language is plain and unambiguous, and conveys a clear and
definite meaning, the rules of statutory interpretation are not needed and the court
has no right to impose another meaning."). Here, Houston was a candidate for
Hilton Head Island Town Council. He did not engage in campaign activity or file
a certified campaign report before his November 2012 election. Section 8-13-1308
requires all candidates, regardless of money raised or spent, to file a certified
campaign report fifteen days before an election; further, the second sentence of
section 8-13-1308(A) requires candidates who do not raise or spend $500, such as
Houston, to file a certified campaign report fifteen days before an election. See
§ 8-13-1308(A) (2019) ("[A] candidate who does not receive or expend campaign
contributions totaling an accumulated aggregate of five hundred dollars or more
must file an initial certified campaign report fifteen days before an election.").
Section 8-13-1308(D)(1) advises candidates of what to disclose and the time frame
to include in the report. See § 8-13-1308(D)(1) (2019) ("At least fifteen days
before an election, a certified campaign report must be filed showing contributions
of more than one hundred dollars and expenditures to or by the candidate or
committee for the period ending twenty days before the election."). While
Houston did not engage in campaign activity and therefore did not have any
contributions of $100 or more to include in his certified campaign report under
section 8-13-1308(D), section 8-13-1362(A) requires candidates to file a certified
campaign report even when the candidate did not receive or spend money. See
§ 8-13-1362(A) (2019) ("If a candidate . . . has not accepted any contributions and
has not made any expenditures during a reporting period, the candidate . . . must
file a statement of inactivity."); § 8-13-1362(B) (2019) ("A statement of inactivity
must include the candidate's . . . name and address; the type of report, pre-election
or quarterly; and a statement by the candidate . . . verifying that no contributions
were received and no expenditures were made during the reporting period.").

Second, the Hearing Panel properly denied Houston's motion to dismiss as the
Commission stated sufficient facts to constitute a cause of action against Houston.
Cf. Rule 12(b)(6), SCRCP (allowing for dismissal of a cause of action when the
complaint fails to state facts sufficient to constitute a cause of action).

Third, while the coversheet for the Panel Hearing transcript lists only two
commissioners, the text of the transcript and the resulting Hearing Panel order list
three commissioners as being present at the Panel Hearing; therefore, sufficient
evidence in the record supports that three commissioners were present at the Panel
Hearing. See S.C. Code Ann. § 8-13-320(10)(j) ("A panel of three commissioners
must conduct a hearing in accordance with [the APA], except as otherwise
expressly provided. Panel action requires the participation of the three panel
members.").

Fourth, we hold the Act provides that any failure by the Commission to notify and
provide Houston with relevant forms did not relieve him of his filing
responsibilities, did not prejudice him, and did not constitute a violation of his due
process rights. Section 8-13-1364 states "[a] candidate . . . is not relieved of
reporting responsibilities if the notice or forms are not sent or if the candidate . . .
does not receive a notice or forms." Further, the Commission prescribes, provides,
and accepts the filings of all required forms and statements exclusively through its
Internet-based filing system as mandated by the Legislature. See § 8-13-365
(Supp. 2011) ("The [C]ommission shall establish a system of electronic filing for
all disclosures and reports . . . . These disclosures and reports must be filed using
an Internet-based filing system as prescribed by the [C]ommission." (emphasis
added)). At the Panel Hearing, Kristin Nabors, an administrative coordinator in
charge of non-compliance for the Commission, testified Houston electronically
filed his statement of economic interest on August 14, 2012, and paper filings were
not permitted at that time. Nabors stated all candidates who electronically file a
statement of economic interest receive a pop-up notifying them of the requirement
to file a certified campaign report fifteen days before the election. Further, while
Houston contends he filed his statement of economic interest on paper at the town
hall because the Internet was not working, he stated during the Panel Hearing that
he could not recall how he filed the statement and admitted he may have done so
electronically. Therefore, we find substantial evidence in the record supports that
Houston received notice of the requirement to file a certified campaign report on
August 14, 2012, which was more than fifteen days before his November 2012
election date.

Fifth, we find Houston's due process argument is without merit because substantial
evidence in the record supports that Houston received notice on August 14, 2012,
when he filed his statement of economic interest. See Strother v. Lexington Cty
Recreation Comm'n, 332 S.C. 54, 63-65 504 S.E.2d 117, 122-23 (1998) (holding
actual notice exists where the person sought to be charged either knows of the
existence of the particular facts in question or is conscious of having the means of
knowing it even though such means may not be employed by him). Additionally,
the Commission complied with the requirements of the Act by sending notice of
the fines via first class and certified mail to the address Houston had on file with
the Commission. See Kurschner v. City of Camden Planning Comm'n, 376 S.C.
165, 171, 656 S.E.2d 346, 350 (2008) ("The fundamental requirements of due
process include notice, an opportunity to be heard in a meaningful way, and
judicial review."); Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314
(1950) (stating due process requires "notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections"); id. at 315 ("The means employed
must be such as one desirous of actually informing the absentee might reasonably
adopt to accomplish it."); S.C. Code Ann. § 8-13-1510(A) (2019) ("Except as
otherwise specifically provided in this chapter, a person required to file a report or
statement under this chapter who files a late statement or report or fails to file a
required statement or report must be assessed a civil penalty as follows: (1) a fine
of one hundred dollars if the statement or report is not filed within five days after
the established deadline provided by law in this chapter; and (2) after notice has
been given by certified or registered mail that a required statement or report has
not been filed, a fine of ten dollars per calendar day for the first ten days after
notice has been given, and one hundred dollars for each additional calendar day in
which the required statement or report is not filed, not exceeding five thousand
dollars.").3

Sixth, Houston's argument the Commission lacked jurisdiction to impose a public
reprimand is without merit because section 8-13-780(B) specifically allows the
Commission to impose an oral or written reprimand against a candidate. See
§ 8-13-780(A) (2019) ("The provisions of this section are in addition to all other
civil and administrative remedies against public officials, public members, or
public employees which are provided by law." (emphasis added)); § 8-13-100(27)
(2019) ("'Public official' means an elected or appointed official of the State, a
county, a municipality, or a political subdivision thereof, including candidates for
the office." (emphasis added)); § 8-13-780(B) ("In addition to existing remedies for
breach of the ethical standards of this chapter or regulations promulgated
hereunder, the State Ethics Commission may impose an oral or written warning or
reprimand.").

AFFIRMED.4

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

3
To the extent Houston argues the Commission should have notified him of the
requirement to file a certified campaign report pursuant to Rule 4(D)(8) of the
South Carolina Rules of Civil Procedure or the standard set forth in State v.
Binnarr, 400 S.C. 156, 733 S.E.2d 890 (2012), these arguments are not preserved
for appellate review because Houston failed to present these arguments to the
Hearing Panel or the Appellate Panel. See S.C. Dep't of Transp. v. First Carolina
Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007) ("[I]t is a litigant's
duty to bring to the court's attention any perceived error, and the failure to do so
amounts to a waiver of the alleged error."); Wilder Corp. v. Wilke, 330 S.C. 71, 76,
497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the
first time on appeal, but must have been raised to and ruled upon by the trial judge
to be preserved for appellate review.").
4
We decide this case without oral argument pursuant to Rule 215, SCACR.