DiSabato Proposes Ordinance that Could Violate State Law and the U.S. Constitution

By Paul Gable

Included in the various email exchanges following last week’s Horry County Council brouhaha was one from council member Dennis Disabato to council Chairman Johnny Gardner in which DiSabato notified Gardner he had instructed staff to prepare a new ordinance that appears to be pointed at one fellow council member and may violate both the US Constitution and South Carolina law.

DiSabato and council member Al Allen were on opposite sides of the issue to discuss county legal fees on last week’s agenda. Allen requested the discussion be placed on the council agenda, DiSabato moved to adjourn the meeting to prevent the discussion from taking place.

In an email to council Chairman Johnny Gardner, DiSabato said that since Gardner had a desire to discuss the use of public funds so transparently, he wanted to place an item on the agenda for the next meeting.

“I would like to discuss the use of public funds and awarding contracts to organizations owned by council members and/or their immediate family.  I believe it is important for the public to understand exactly how much of our tax revenue is being spent with Allen Aviation, in particular, for mosquito spraying contracts, as well as how those contracts are awarded,” DiSabato wrote to Gardner in the email.

Had DiSabato stopped there, he would have been fine.

However, DiSabato’s email took it further, “Furthermore, I’d like to take this opportunity to let you know that I have instructed staff to prepare an ordinance to prevent the county from further contracts with companies owned by council members and/or their immediate family.  The intent here, Mr. Chairman, is to protect and prevent individuals on council from undue public scrutiny of perceived improprieties stemming from such activities.” 

 An ordinance such as DiSabato proposes may violate both state law and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

The Fourteenth Amendment provides that no state may deny any person within its jurisdiction the equal protection of the laws. It mandates that individuals in similar situations (classes) be treated equally by the law.

South Carolina has no law prohibiting public officials from conducting business with the agency they represent. It does have laws prohibiting members from voting on or influencing a governmental decision in which the public official has an economic interest and laws on disclosing the income (economic interest) from such business.

Section 8-13-700(B) states, “No public official, public member, or public employee may make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a family member, an individual with whom he is associated, or a business with which he is associated has an economic interest.”

Local governments are sub-divisions of state government and are not allowed to pass ordinances more restrictive than state law. Myrtle Beach found that out some years ago when it passed an ordinance requiring motorcyclists to wear helmets within city limits only to have it declared unconstitutional when litigated. South Carolina has no law mandating helmets must be worn.

 For Horry County to pass an ordinance mandating the prohibition DiSabato proposes would appear to violate not only South Carolina statutes but also the Fourteenth Amendment of the U.S. Constitution by placing prohibitions on Horry County elected officials which differ from prohibitions, or the lack thereof, on the same class of elected officials throughout the state.

Council members do not give up their rights as a citizen when they are sworn into office.

Council members and their families don’t need DiSabato’s proposed ordinance to protect them from “public scrutiny of perceived improprieties.”

State ethics laws, which govern all elected and certain appointed officials of local government, already provide for that scrutiny. Those officials must file a Statement of Economic Interest with the S.C. Ethics Commission each year disclosing how much they receive in public funds from salaries, contracts, consultation and the like. The SEI are open to public scrutiny on the Ethics Commission website.

A council member with any perceived economic interest in an issue being discussed an is required to recuse himself from the discussion and vote, if any, and leave the room. We have seen former Chairman Mark Lazarus do exactly that in years past.

 Lazarus’ amusement park has received county funds in years past when council approved funding to pay for children from county recreation facilities to have a day outing in the park. There was nothing wrong with that and I don’t recall DiSabato ever objecting to such funding.

And Lazarus is not the only past or present member of council to receive public dollars from the county for use of their business services.

Any concerned citizen may file an ethics complaint with the state Ethics Commission if they believe public officials have “improprieties stemming from such activities,” as DiSabato phrases it.

Allen Aviation and its county contract have been subjected to one such ethics complaint in the past.  An Ethics Commission investigation found no probable cause for the complaint.

Allen said every contract he has had with the county was won in a sealed bid competition. It might be noted that Allen has similar spraying contracts with other local governments as well as spraying contracts in several states across the eastern half of the country.

DiSabato closed his memo to Gardner with the following remark, “I can assure you, from one licensed attorney to another, I can read and interpret Roberts Rules of Order, all by myself, and therefore understand the procedural processes of the actions taken under same.” 

Based on the ordinance proposed by DiSabato, it is unclear if, as an attorney, DiSabato can make the same statement about the U.S. Constitution and state law.

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