SC Ethics Commission says LR5 ethics subpoenas can go ahead, with these limits

A Midlands school board member facing ethics charges will be able to ask questions of at least two people as part of his defense.

Ken Loveless, the vice chair of the Lexington-Richland 5 school board, had asked the S.C. Ethics Commission to approve subpoenas for Ed White, a former school board member, and Greg Hughes, the president of a construction company that built a new elementary school for the school district.

The commission decided to allow those subpoenas to proceed Tuesday, but set limits on what questions Loveless could ask.

Loveless is accused of overseeing Contract Construction’s work on the new Piney Woods Elementary School after his own company had procured a contract to work on a separate project with Contract Construction. The separate project was construction of a building for the South Carolina Law Enforcement Division.

Loveless is accused of inquiring about Contract Construction’s work on Piney Woods Elementary School in a letter on March 24, 2020, even though Loveless’ company had been awarded a more than $1 million contract with the company for another job. Loveless is also accused of improperly participating in board discussions of Piney Woods on June 15 and Sept. 14 of that year. Loveless also visited Piney Woods in June 2020 to review Contract Construction’s work.

White had fought his subpoena in a hearing in front of the Ethics Commission last Thursday, arguing that he has no knowledge of Loveless’ ethics charges beyond what’s already in the public record, and that the subpoena is the result of “animosity” between himself and Loveless after White’s previous criticism of Loveless’ relationship with Contract Construction and their public disagreement over the handling of the resignation of Lexington-Richland 5’s former superintendent, Christina Melton.

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The commission decided to let the subpoena against White go forward, but said White could only be required to answer questions in writing.

“Here, the Panel questions whether any of the information possessed by White is relevant to the question of whether Respondent violated the Ethics Act, but also recognizes that Respondent has the right to mount a defense,” the Ethics Commission said in its order. “Accordingly, the Panel will exercise its authority to limit Respondent’s discovery as to Mr. White to written questions.”

Loveless’ attorneys will be allowed to ask no more than 10 written questions, which can be multi-part, which “shall be limited to the topic of procurement or hiring decisions made by the Board ... regarding Respondent or Loveless Commercial Contracting.”

White must answer within 30 days of receiving the questions.

In Hughes’ case, the commission goes further, finding that his questioning is “reasonably calculated to lead to the discovery of admissible evidence.”

Under the commission’s order, Hughes can be deposed in person, but the questioning will be limited to one and a half hours, “to ensure the deposition is focused on relevant issues and to ensure that the deposition is not unduly burdensome.” The time limit will not include any time that Hughes’ attorney may spend asking questions.

The scope of Hughes’ deposition should be limited to questions about Contract Construction’s contract with Lexington-Richland 5, Contract Construction’s contract with SLED, and the relationship between Contract Construction and Loveless Commercial Contracting, the commission ordered.

“The Panel cautions all counsel ... that the discovery deposition may not be abusive, and that the matter before this Commission is whether Respondent violated the Ethics Act,” the order reads, before citing the legal rules regulating attorney conduct during a deposition.

The Commission also directed attorneys not to file copies of the Hughes deposition, excerpts or summaries in a public forum without the Commission’s permission.

Earlier in the week, the Ethics Commission quashed a separate subpoena issued against Michael Montgomery, a former attorney for the Lexington-Richland 5 school district. The commission said any knowledge Montgomery had of the charges against Loveless would come from his work as an attorney, and therefore was exempt from disclosure under attorney-client privilege.

Loveless has also issued subpoenas against former school board chairman Michael Cates and Kim Benson, the woman who filed the initial ethics complaint against him. A hearing scheduled for Monday to consider quashing those subpoenas was postponed, and the commission will meet again Thursday to consider moving up its hearing on Loveless’ charges ahead of the November school board election.