STATE OF SOUTH CAROLINA )

COUNTY OF RICHLAND ) BEFORE THE STATE ETHICS COMMISSION

)
IN THE MATTER OF: )
Complaint C2021-016 )
)
Kim Benson, ) RESPONDENT’S REQUEST
) FOR REVIEW OF DECISION
Complainant. ) AND ORDER
)
Kenneth Loveless, )
Respondent. )
______________________________)
 
Pursuant to Reg. 52-801 and 52-805, Respondent Kenneth Loveless submits this request for

review of the hearing panel’s Decision and Order dated March 24, 2023, by the full Commission. It is

respectfully asserted that the hearing panel erred in its decision in the following respects. He urges that

the decision of the hearing Panel be vacated and the charges against him be dismissed.

1. The Panel erred in failing to address the scope of the Commission’s statutory authority. As

argued in Respondent’s Motion to Dismiss, and in Respondent’s proposed order, the

Commission’s “historical interpretation” of the statutes expand on the clear language of

unambiguous statutes and constitute the imposition of sanctions for conduct that is not prohibited

by the State Ethics Act. Respondent incorporates his Motion to Dismiss, as more fully addressed

in Respondent’s Request for Review filed October 17, 2022, which is incorporated herein as

fully as if repeated verbatim.

2. The Panel erred in finding that the Commission established by a preponderance of the evidence

that Respondent violated three counts of § 8-13-700(B) when the evidence presented clearly

established that Respondent did not “make, participate in making, or in any way attempt to use

his office…to influence a governmental decision…” of any kind. The evidence established

without dispute that Respondent did not “make, participate in making or in any way attempt to

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 use his office” in any way as it related to the construction contracts between District 5 and

Contract Construction Inc.

3. The Panel erred in finding that Respondent’s March 24, 2020 letter to District Superintendent

Christina Melton inquiring about construction work of a district facility by Contract

Construction, Inc. constitutes a violation of § 8-13-700(B) when Melton’s own employment

contract with the District required that any questions Respondent had regarding the District must

be addressed to the Superintendent.

4. The Panel erred in concluding that Respondent’s participation in District Board meeting

discussions regarding the construction of Piney Woods Elementary School by Contract

Construction Inc. violate S.C. Code § 8-13-700(B) when the Commission did not identify or

present evidence of any government decisions which Respondent attempted to or did influence.

5. The Panel erred in failing to recognize that it was Contract Construction Inc., and not

Respondent, that created the contractual relationship which formed the basis of these charges.

The undisputed testimony is that Respondent personally had nothing to do with bidding the

SLED job, and knew nothing about it until the competitive bid process was concluded and the

subcontract awarded to Loveless Commercial Contracting Inc.

6. The Commission erred in failing to recognize that the contract between Loveless Commercial

Contracting Inc. and Contract Construction Inc. was exempt from the State Ethics Act because

it was the subject of a competitive bid process. S.C. Code § 8-13-775.

7. The Panel erred in recommending the assessment of a fine against Respondent, because the

Commission lacks the statutory authority levy a fine on someone unless they are a “public officer,

public member or public employee to pay a civil penalty. . .” at the time the fine is assessed. S.C.

Code § 8-13-320 (L)((i). It is undisputed that Respondent ceased being a public officer in

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 November, 2022, which deprived the Commission of any statutory authority to fine him after

that date. Had the Commission expedited the hearing as Respondent had requested earlier, he

would have remained a public official at the time of the hearing in this matter.

8. The Panel erred in finding that Respondent was required to recuse himself, pursuant to § 8-13-

700(B), from discussions regarding the construction of Piney Woods Elementary School by

Contract Construction Inc when S.C. Code § 8-13-775 expressly permits Board members to

participate in discussion of vendors with which they have unrelated contracts, as long as the

Board member does not “perform[] an official function” regarding the contract. SEC AO93-054.

9. The Panel erred in finding that Respondent’s conduct violated § 8-13-700(B) when there was no

evidence presented that Respondent performed any official function regarding the district’s

contract with Contract Construction Inc. or Respondent’s own company’s contract with Contract

Construction Inc. on the SLED project.

10. The Panel erred in finding that Respondent’s conduct violated 8-13-700(B) when it was

undisputed that Respondent did not take action or vote on anything regarding Contract

Construction at any time during his service on the Board.

11. The Commission’s recommendation violates Respondent’s First Amendment rights to speak on

issues of public concern regarding District 5 when he is a sitting member of the Board. The logic

that a professional with expertise in a field must leave his expertise behind when carrying out his

duties as a public official is perverting the entire purposes of the State Ethics Act.

For the reasons set forth above, Respondent respectfully requests an order finding the

recommendations of the Panel dated March 24, 2023 to be in error, and a decision by the full Commission

vacating the Panel’s findings and recommendations and dismissing the charges against Respondent.

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 Respondent requests a public hearing before the Full Commission, after full briefing, to present

arguments on the errors committed by the Hearing Panel.

Respectfully submitted,

s/ Desa Ballard
Desa Ballard (S.C. Bar No. 498)
Harvey M. Watson III (S.C. Bar No. 74053)
Haley Hubbard (S.C. Bar No. 103195)
BALLARD & WATSON
226 State Street
West Columbia, South Carolina 29169
Telephone 803.796.9299
desab@desaballard.com
harvey@desaballard.com
haley@desaballard.com

ATTORNEYS FOR RESPONDENT

April 3, 2023

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