Cost to defend Occupy lawsuit against Haley unknown after two years

South Carolina taxpayers are in the dark about how much public money has gone to defend Gov. Nikki Haley after Occupy Columbia members sued her two years ago following their arrests for protesting at the Statehouse. A trial could come as early as September.

Haley’s attorney, Kevin Hall of Columbia, declined to say how much public money has been used to pay for the defense, and a state agency that covers the legal fees of public officials — the S.C. Insurance Reserve Fund — won’t release financial documents related to the case. But agency spokeswoman Rebecca Griggs confirmed the IRF is paying for the Republican governor’s defense. The director of the state’s press association says the costs should be made public.

Insurance Reserve Fund director Anne Macon Smith denied a Jan. 13 Freedom of Information act request to inspect records that would show how much the State of South Carolina has paid for Haley’s defense over the past two years. Smith cited an exemption in state FOI law that says the agency doesn’t have to disclose such information since the case hasn’t yet been settled or concluded.

That provision in the law rankles Jay Bender, an attorney for the S.C. Press Association and the Reid H. Montgomery FOI chair at the University of South Carolina.

“It’s unfortunate that the General Assembly has decided that the public is not entitled to know how much is being spent to defend a case for which there is no defense,” Bender says. “The state is defending it in the hopes that somehow the governor’s political misstep can be made to go away.”

This legislative session, Aiken Republican Rep. Bill Taylor, a former journalist, is in his fourth year working on a way to bring teeth to the state’s FOI law. He’s not looking at re-writing the Act or examining specific exemptions in it, but rather trying to create enforcement mechanisms for the current law to make sure public bodies are complying with it.

“I think any time we’re spending the peoples’ money there ought to be total transparency,” he said when asked about the IRF’s cited exemption for ongoing legal cases. “If this fund is there to legitimately defend a public official, the public ought to know what’s being spent to defend that public official.”

Asked how much attorneys are generally paid by the IRF, Griggs says it varies depending on their experience level. For instance, an attorney with more than 10 years of experience would earn $140 per hour of work, while one with three to five years would be paid $90.

“The IRF takes various considerations into account when assigning cases to private attorneys, including the allegations involved, the complexity of the case, the experience and expertise needed to defend the case, and the insured’s wishes,” she said.

Haley’s attorneys work in the Columbia firm of Womble Carlyle, which practices in the realm of politics, business, and public policy. Attorneys for the firm have represented Haley before. Last year they defended her against ethics charges and helped negotiate a $3,500 fine she paid for not recording proper addresses of campaign donors. They’d also successfully defended her against accusations from conservative activist John Rainey that she used her public office for personal gain.

Haley’s legal troubles began on the rainy evening of Nov. 16, 2011 when the governor directed her Bureau of Protective Services to arrest members of Occupy Columbia if the protestors didn’t leave the Statehouse grounds. The Columbia Police Department refused to assist, and the county solicitor later dropped the charges for all 19 arrested.

“Anybody that had even the most remote awareness of what had happened in the Civil Rights movement in Columbia knew that you could not arrest people for protesting on the Statehouse grounds,” Bender says. “That case is Edwards vs. South Carolina. It went to the U.S. Supreme Court. If the governor got legal advice that said she could order those arrests, she got bad advice. If she sought no advice, which I think is probably typical of people in power, she should have at least had some caution after the city advised her that the arrests were unconstitutional.”

A handful of the occupiers sued, saying they had a constitutional right to protest. In December, a federal court ruled Haley was not immune from the lawsuit. A trial could come as early as Sept. 15 if there aren’t any delays.

“How public money is being spent should always be open,” says Bill Rogers, director of the S.C. Press Association and advocate for open government. “The public has a right to know how much money is being spent on this legal action.”

Response to FOIA request about Occupy Columbia lawsuit expenses