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24667 - B. Boykin Rose v. David M. Beasley

Davis Adv. Sh. No. 24

THE STATE OF SOUTH CAROLINA
In the Supreme Court

B. Boykin Rose, Director, South
Carolina Department of Public
Safety, Appellant/Respondent,

v.

David M. Beasley, as Governor
of the State of South Carolina, Respondent/Appellant.

Appeal From Charleston County
Don S. Rushing, Judge

Opinion No. 24667
Heard May 6, 1997 - Filed August 11, 1997

AFFIRMED

A. Camden Lewis, of Lewis, Babcock & Hawkins, L.L.P., of
Columbia, for appellant/respondent.

David C. Eckstrom, of Nexsen, Pruet, Jacobs & Pollard,
L.L.P.; and Vance J. Bettis, of Gignilliat, Savitz & Bettis; both
of Columbia, for respondent/appellant.

PER CURIAM: This appeal is from an order of the circuit court holding
void the suspension of B. Boykin Rose from his office as Director of the Department of
Public Safety (DPS) and affirming his removal from that office. We affirm.

FACTS

The facts leading, to Rose's suspension and removal involve the
administration of federal grant programs by DPS. The DPS Office of Safety and Grants

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B. BOYKIN ROSE, etc. v. DAVID M. BEASLEY, etc. receives grant applications which are initially reviewed by the DPS staff and approved by
the Director of DPS. The Director then forwards these recommendations to a contact
person at the Governor's Office. The contact person gives approval for DPS to forward
its recommendations to the Public Safety Coordinating Council which approves or
disapproves finding.


Sometime in the spring of 1996, Rose began to suspect that grant
recommendations had been illegally altered and that his Chief-of-Staff, Otis Rawl, was
forging his (Rose's) signature on grant recommendations in complicity with members of
the Governor's staff. Rose reported his suspicions to the United States Department of
Justice, the South Carolina Attorney General, and the Governor's Chief Counsel, Henry
Deneen. Rose also fired Otis Rawl who had originally been hired at the Governor's
request.


On June 17, Rose met with the Governor along with former United States
Attorney Bart Daniel and Chief Counsel Deneen. The Governor told Rose he had hired
Daniel to investigate the alleged wrongdoing by the Governor's staff. Daniel and Deneen
requested documents from Rose regarding the grant process and the allegedly altered grant
recommendations which Rose agreed to supply. After this meeting, Rose privately asked
Daniel for a letter of representation to clarify Daniel's role which Daniel agreed to
provide. On June 18, Rose again met with Daniel and Deneen and they again asked for
the documents which Rose said he had not had time to gather. Rose promised he would
forward the documents later that day but failed to do so.


On June 22, Rose read in the newspaper that Daniel had been hired to
investigate the DPS staff and not the Governor's staff. Rose called Daniel and Daniel
reassured Rose that he was in fact investigating the Governor's staff and not DPS. On
June 24, Rose again met with Deneen and Daniel and was again asked but did not provide
the requested documents.


On June 26, Rose received a letter from Daniel requesting the documents.
Rose responded by letter dated June 28 questioning Daniel's role in the investigation and
stating that he would not provide the requested documents until Daniel provided him with
a representation letter.


In response to Rose's refusal to comply with the request for documents, the
Governor suspended him from office on July 1. Rose subsequently received a Notice of
Intent to Remove from Office to which he was permitted a written response. On
September 3, the Governor ordered Rose removed front office pursuant to S.C. Code Ann.

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B. BOYKIN ROSE, etc. v. DAVID M. BEASLEY, etc.

§ 1-3-240 (Supp. 1996).1 Rose appealed to the circuit court as provided under S.C. Code
Ann. § 1-3-250 (Supp. 1996). The circuit court ruled Rose's suspension was void for lack
of authority but affirmed his removal from office. Both Rose and the Governor appeal.

OUR STANDARD OF REVIEW

Under S.C. Code Ann. § 1-3-250 (Supp. 1996), an appeal of the circuit
court's judgment in an action contesting an officer's removal is allowed "as in any other
appeal at law." In an action at law, our jurisdiction is limited to the correction of errors
of law and factual findings will not be disturbed unless unsupported by any evidence.
Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). This
standard governs our review in this case.

ROSE'S APPEAL OF HIS REMOVAL

1. Proof of misconduct

Under S.C. Code Ann. § 1-3-10 (1986), a public officer has an affirmative
duty to "immediately furnish to the Governor, in such form as he may require, any
information desired by him in relation to [the officer's] affairs or activities.2 The circuit
court affirmed Rose's removal on the ground he violated this statute and was therefore
guilty of misconduct.

Rose contends this Court should hold as a matter of law that he committed
no misconduct because his failure to produce the requested documents was prompted by
his uncertainty about the scope of Daniel's representation. Rose relies on his letter of June
28 by which he responded to Daniel's request as follows:

__________________

1 In contrast to other appointed officers who may be removed at the Governor's
discretion, the Director of DPS may be removed only for malfeasance, misfeasance,
incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty
in office, or incapacity. Compare S.C. Code Ann. § 1-3-240 (B) and (C)(8) (Supp.
1996). 2 Similarly, article IV, §17, of our State constitution provides:

All State officers, agencies, and institutions within the
Executive Branch shall, when required by the Governor.
give him information in writing- upon any subject
relations, to the duties and functions of their respective
offices, agencies, and institutions, including itemized
accounts of receipts and disbursements.

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B. BOYKIN ROSE, etc. v. DAVID M. BEASLEY, etc.

. . . .I must state that the manner in which your questions
are phrased and the nature of the information you seek
raises some question about your role in this matter. In our
recent contacts, you represented to me that you were not
hired by the Governor's Office to investigate the
Department of Public Safety, but had been hired to advise
the Governor on legal (not political) matters.... However,
the Governor's spokesperson has been quoted describing
your role to the contrary without station under what
authority you are operating as an independent counsel.

To ensure that our actions do not jeopardize any aspect
of the ongoing investigations, I would greatly appreciate it
if you would provide me in writing with the authority
under which you are operating when making these
requests. I would also request that you provide me in
writing with the parameters of your agreement for
representation of the Governor and whether this
representation extends to members of his staff or the
Govern's Office as an entity....

Again, at this time I must refrain from answering your
request since I cannot in good conscience respond without
a complete understanding of your representational
relationship and operating authority in this matter.

As indicated in this letter, Rose knew Daniel was representing the Governor.3 Regardless
of whether Daniel was investigating the Govern's Office or D.S., Rose was obligated
to furnish the requested documents.4 The scope of Daniel's representation of the Govern
is immaterial to Rose's duty to the Govern under § 1-3-10.

Rose also contends his letter of June 28 indicates only that he intended to
deliver providing the documents and is not proof he refused the Governor's request. Section
1-3-10 imposes a duty to "immediately)7" furnish information requested by the Governor.
This statute allows a public officer no discretion to delay compliance with the Governor's

____________________

3Further, in his response to the Governor's Notice of Intent to Remove, Rose
admitted the Governor had personally told him on June 17 that he had hired Daniel to
conduct an independent investigation.

4Rose also admitted that Henry Deneen, whom Rose knew to be the Governor's
chief counsel, had asked for the documents as well.

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B. BOYKIN ROSE, etc. v. DAVID M. BEASLEY, etc.

request. It is not for this Court to second-guess the wisdom of the legislature in imposing
such a duty on public officers. A public officer's failure to comply with a statutory duty
constitutes misfeasance in office. Richland County v. Owens, 92 S.C. 329, 75 S.E. 549
(1912). Misfeasance is a ground for removal under § 1-3-240(C). Accordingly, Rose's
failure to immediately furnish the requested documents supports his removal.

Rose's argument to this Court that he had "an understanding with the FBI
to protect important investigative documents" is contradicted by his own testimony on
appeal to the circuit court. Rose testified that FBI agent Dodge Frederick had told him
that pending requests under the Freedom of Information Act did not have to be honored
because of the exemption for documents collected in pursuit of an investigation. Rose
admitted this conversation did not concern Daniel's request for documents and he had no
impression he was under any duty imposed by the FBI regarding the documents Daniel
was requesting. Further, Rose failed to provide even the publicly available grant
procedure documents requested by Daniel which were not "investigative documents."

Finally, Rose suggest it is within this Court's power to effectively prevent
the Governor's suppression of the allegations of grant fraud by his staff by holding Rose
was guilty of no misconduct as a matter of law. Despite the reprehensibility of the
alleged grant manipulations and forgeries, it is unavoidably Rose's conduct we must
scrutinize. We cannot exonerate him by examining the merits of his claim regarding
improprieties by other government officials.

2. Procedural violations

Rose contends the hearing on appeal to the circuit court should have been
a de novo hearing on the merits rather than a determination that his removal was
supported by clear and convincing evidence. We disagree.

Section I-3-250, which provides for appeal to the circuit court, states:

The judge shall hear and determine the appeal both as to
law and fact upon the record as made before the Governor
and upon such additional evidence as he shall see fit to
allow.

Rose relies on dictum5 in a concurrence in State v. Ballentine, 152 S.C. 365, 150 S.E. 46,

________________

5The actual issue in Ballentine was whether Judicial review of the Governor's order
of removal was unconstitutional. The Court concluded the Governor acted in a quasi-
judicial capacity in removing, an officer and therefore his decision was properly subject
to judicial review

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B. BOYKIN ROSE, etc. v. DAVID M. BEASLEY, etc.

48 (1929), stating that under the predecessor statute to § 1-3-250, an officer "is allowed
the right of appeal to a circuit judge, who hears the matter on the merits de novo."
(Emphasis added).

Rose's contention that he is entitled to a de novo proceeding under this
statute is without merit. A de novo hearing, on appeal of an order by an executive body
acting in a quasi-judicial capacity6 violates the separation of powers provision of our State
constitution because judicial discretion cannot be substituted for that of an executive body.
Guerard v. Whitner, 276 S.C. 521, 280 S.E.2d 539 (1981); Bd. of Bank Control v.
Thomason, 236 S.C. 158, 113 S.E.2d 544 (1960). Accordingly, the circuit court properly
applied § 1-3-250 and limited its review to a determination that the facts supported the
Governor's decision.

Rose also contends the lack of a de novo hearing before the circuit court
improperly placed the burden of proof on him to prove by clear and convincing evidence
that he should not be removed. To the contrary the circuit court specifically held the
grounds for removal asserted by the Governor were supported by clear and convincing
evidence. There is nothing in the circuit court's order indicating Rose bore any burden
of proof

Rose contends his statutory rights were violated because he did not receive
an oral pre-removal hearing. Under § 1-3-240(A), before removing any officer, the
Govern must inform him in writing of the specific charges and give him an opportunity
on reasonable notice "to be heard." The circuit court agreed Rose was entitled to an oral
pre-removal hearing under this statute7 but found the post-removal hearing on appeal to
the circuit court was sufficient to cure any due process violation.8 Rose contends this was
error because the statutory violation could not be cured by a post-removal hearing. We
disagree.

________________

6In removing an officer, the Governor as chief executive acts in a quasi-judicial
capacity. Ballentine, supra.

7There has been no appeal of the circuit court's ruling that the written pre-removal
procedure violated § I-3-240(A).

8As a threshold issue on the due process claim, the circuit court found Rose had a
property interest in his office as Director of D.S. The United States Supreme Court
has held that a government employee who is statutorily entitled to continued
employment absent -good cause for dismissal has a property interest in that employment
for purposes of a due process analysis. Cleveland Bd. of Educ. Loudermill, 470
U.S. 532, 105 S.Ct. 1497, 84 L.Ed.2d 494 (1985).

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B. BOYKIN ROSE, etc. v. DAVID M. BEASLEY, etc.

Rose has failed to show any prejudice from the lack of a pre-removal
hearing. At the hearing before the circuit court, he was represented by counsel and had
the opportunity to introduce evidence, cross-examine adverse witnesses, and argue his case
to the court. This post-removal procedure, which satisfied due process, sufficiently
compensated for the lack of an oral pre-removal hearing. See Glenn v. Newman, 614 F.2d
467 (5th Cir. 1980); see also Loudermill, supra (a full post-removal hearing and judicial
review satisfies due process even where only a written pre-removal procedure is allowed).
Accordingly, we find no error.

Finally, Rose contends the circuit court applied an arbitrary and
unreasonable standard of proof indicated by this statement in its order:

On this record, Rose's failure to provide these documents
and information . . . appeared to be intentional and
wrongful.

Rose contends an "appearance" standard is a shallow level of proof that requires reversal.
The circuit court order, however, specifically states that the evidence supporting Rose's
removal for misconduct was clear and convincing. It is clear from the order as a whole
that the circuit court did not apply an "appearance" standard of proof in reviewing Rose's
removal but the more stringent clear and convincing standard.9

In conclusion, the circuit court properly affirmed Rose's removal under §
1-3-240(C).

GOVERNOR'S CROSS-APPEAL

The circuit court held Rose's pre-removal suspension was void because
there is no constitutional or statutory provision allowing the Govern to suspend the
Director of D.S. Despite this lack of statutory or constitutional authority,10The Governor,
citing cases from other jurisdictions, argues he has the power of suspension as an incident
of his statutory power of removal. This proposition clearly conflicts with well-established
South Carolina precedent.

Under South Carolina law, the Govern can neither appoint to office nor
suspend or remove from office unless the power to do so is conferred upon him by the

90n appeal to this Court, the Governor does not challenge this standard of proof.

10This case does not involve the Governor's power of suspension under S.C. const.
art. VI, §8, which allows suspension by the Governor in certain instances of indictment
of a public officer.

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B. BOYKIN ROSE, etc. v. DAVID. M. BEASLEY etc.

Constitution or statute. State ex rel. Huckabee v. Hough, 103 S.C. 87, 87 S.E. 436
(1915). The Governor argues this requirement of an explicit gant of the power to
suspend applies only to the suspension of constitutional officers. To the contrary, in
Dacus v. Johnston, 180 S.C. 329, 185 S.E. 491 (1936), we applied this same analysis to
find invalid the suspension of a state highway commissioner who was not a constitutional
officer but an appointee similar to the Director of D.S.

The Governor further relies on In re: Ferguson, 304 S.C. 216, 403 S.E.2d
628 (1991), in which this Court held it had the power to suspend a circuit court judge
based on the inherent power to administer justice as provided under article V of our State
constitution. The Governor argues the power of suspension flows from his inherent power
as head of the executive branch of government. It is well-settled, however, that the power
of removal or suspension from office is not an inherent function of the chief executive.
Huckabee v. Hough, supra; McDowell v. Burnett, 92 S.C. 469, 75 S.E. 873 (1912); State
v. Rhame, 92 S.C. 455, 75 S.E. 881 (1912).

In conclusion, the trial judge properly ruled that the Governor's suspension
of Rose was void because the Governor has no statutory or constitutional authority to
impose such a suspension.

AFFIRMED.