The state agency charged with investigating lawyer misconduct has opened an investigation into Beaufort County School District attorney Drew Davis for allegedly deceiving the Beaufort County Board of Education, misrepresenting the law and threatening board members in a closed-door January meeting when they learned of the district’s involvement in an FBI investigation, according to a letter sent last month by the agency to the board member who filed a formal complaint against Davis last month.
Davis denies the allegations board member John Dowling submitted in a March 9 letter to the Supreme Court of South Carolina’s Office of Disciplinary Counsel, which investigates and prosecutes complaints against members of the South Carolina Bar. The Bar licenses lawyers to practice law in South Carolina.
“I recently learned Mr. Dowling notified you of a process, which is supposed to be at this stage confidential,” Davis said. “More than 1,500 complaints were filed last year with the Office of Disciplinary Counsel with the majority dismissed. I deny the allegations in Mr. Dowling’s complaint and I am confident resolution will show that I did nothing unethical.”
South Carolina disciplinary counsel John Nichols, who spoke generally about his office’s process and not to any specific case, said the office does not open an investigation into every complaint it receives. The threshold in opening an investigation lies in whether or not something in the complaint could potentially violate the South Carolina Rules of Professional Conduct or the Rules for South Carolina Lawyer Disciplinary Enforcement.
“In other words, ‘if it were true’ would it be a violation of the above?” Nichols said.
Data that Nichols provided shows his office investigated about 75 percent of cases it received in the 2017 fiscal year. About 240 of the nearly 1,500 cases resolved that year resulted in some sort of sanction.
A person filing a complaint used to be bound to confidentiality, but those rules have changed sometime before 2000, Nichols said. Complaint-filers are no longer bound to confidentiality as Davis indicated in his statement, but this doesn’t relieve them of defamation claims.
The board voted 9-1 to hire Davis in 2014, even though he had not yet passed the S.C. Bar exam. At a previous place of employment, the Winston-Salem/Forsyth County School District in North Carolina, Davis was suspended with pay amid questions about whether he and other school system leaders failed to promptly report possible criminal acts to local law enforcement agencies. Davis denied any wrongdoing and that school board bought out Davis' contract for nearly $50,000 in November 2010 in a mediated settlement.
Davis, who is the first in-house legal counsel for the school district, has at times been caught in the middle of the deeply divided board, which split in the fallout from superintendent Jeff Moss’ 2015 ethics violations. While a six-member majority generally aligns themselves with Moss, a five-member minority bloc that includes Dowling is less trusting of Moss and, by extension, Davis.
Dowling was one of 10 board members in a closed-door meeting Jan. 16 when they learned the U.S. Attorney’s Office subpoenaed two district employees — chief financial officer Tonya Crosby and facilities, planning and construction officer Robert Oetting — requesting records pertaining to the construction of May River High School and River Ridge Academy, according to Moss and several board members.
The subpoenas requested information about the bidding process and the architect used in the project, Hite Associates, which had previously worked with Moss when he was superintendent in two North Carolina school districts, but hadn’t done construction work for South Carolina school districts before Moss took over Beaufort County schools in July 2013.
The five-member minority bloc say Davis described potential criminal and civil penalties for divulging the existence of the subpoenas in a way that indicated the consequences applied to board members. Three minority board members distinctly remember Davis using the words “prison time.”
Three of the six majority members denied feeling threatened by Davis. Two others, including board chairman Earl Campbell, did not return a call for comment. The sixth member did not attend the meeting in question.
In a February interview, Davis denied making any threats or using the words “prison time” during the Jan. 16 meeting. He said the allegations “create(d) an absolute incorrect and inaccurate narrative,” but declined to elaborate on the advice he offered board members Jan. 16, citing attorney-client privilege and the rules of professional responsibility — the very rules Dowling is alleging he violated.
At least three minority members, including Dowling, consulted outside attorneys after the Jan. 16 meeting in which they said they were pressured to keep the subpoenas secret.
Vice-chairwoman Geri Kinton appeared to hint at the penalties minority board members say Davis discussed when she wrote in an email sent shortly after the Jan .16 meeting, “Any disclosure, which can only be self-serving, will be investigated and may be prosecuted to the extent the law allows.”
According to the federal rules of criminal procedure, “no obligation of secrecy may be imposed on any person” except for grand jurors, court reporters, interpreters, operators of recording devices, transcribers of recorded testimony and government attorneys.
In his complaint to the Office of Disciplinary Counsel, Dowling wrote that there has been “no rebuke or threat of actions” against him or other board members who voted to publicly disclose the existence of the subpoenas Feb. 3.
The office’s letter to Dowling, which he shared with The Island Packet and The Beaufort Gazette, noted, “Where misconduct is found, this disposition might include a confidential letter of caution or admonition, a public reprimand, suspension or disbarment. If our investigation does not reveal evidence of lawyer misconduct, your complaint will be dismissed.”
After the Office of Disciplinary Counsel investigates a complaint, “there may be some indication that something went wrong but we don't think we can establish a case,” Nichols said, again speaking generally and not to any specific case. But investigators have to find "clear and convincing evidence" of a violation.
The letter to Dowling said a final decision is “often (made) many months” after the office receives a complaint.
This isn’t the first time Davis and Dowling have gone head-to-head.
Last spring, when Dowling had not yet joined the school board, he pursued a restraining order against a district official who had escorted him out of the district office after a school board work session.
In court, Davis cross-examined Dowling extensively about his past. A magistrate court judge found no evidence of a pattern of harassment against Dowling.
S.C. Office of Disciplinary Counsel complaint disposition by the numbers
388 Immediately dismissed
847 Dismissed after investigation
9 Closed due to death of lawyer
3 Closed, but not dismissed
3 Deferred disciplinary agreement
12 Private admonitions
103 Letters of caution
20 Public reprimand
35 Suspensions (vary in length from 3 months to 3 years)
21 Permanent resignation in lieu of discipline
45 Disbarred (5-year period)
*From July 1, 2016 through June 30, 2017