Sanford's Secret Trip Unwise, But Constitutional

Just The Latest Sex Scandal

Sanford's admission of an extramarital affair is just the latest sex scandal to rock the Republican Party. It follows Nevada Sen. John Ensign's confession last week to a similar transgression. And fellow Nevada Republican, Gov. Jim Gibbons, has been in hot water over salacious details regarding his ongoing divorce proceedings.

Of course, sexual indiscretions are hardly the property of one party. New York Gov. Eliot Spitzer resigned in disgrace last year in a prostitution scandal, and New Jersey's Jim McGreevey resigned as governor following his declaration that he is a "gay American." And John Edwards was carrying on an affair with a videographer as he was simultaneously campaigning for the Democratic presidential nomination last year.

For more on political sex scandals over the last decade, visit Political Junkie.

When South Carolina Gov. Mark Sanford disappeared last week, jetting to Buenos Aires for a secret tryst, he left not just his wife and kids but an entire state in the dark.

So what happens when a chief executive goes off the grid? Did Sanford, in addition to breaking his marriage vows, violate any requirements of his high office — other than probity — when he was incommunicado?

"I don't think so," says James Underwood, the leading expert on South Carolina's Constitution and author of a four-volume history of the document.

"He perhaps acted imprudently," Underwood said, just moments before a teary Sanford, father of four, confessed during a news conference that he'd made himself unreachable in South America to spend time with his paramour.

"But I don't think he violated any technical provisions," he says.

Imprudent Action

His behavior was "imprudent" on many levels, certainly, but Underwood and other Palmetto State constitutional experts say that no matter how unusual it was for a governor to essentially disappear, transfer-of-power requirements just aren't clear enough to suggest he did anything wrong.

"It doesn't seem to present much of a problem with the constitution as an absolute fact," says John Simpkins, a Charleston School of Law professor.

"But there's been a tradition that the governors will notify their lieutenant governors when they are out of state, typically," Simpkins says, "and when they are out of the country, certainly."

The state constitution does address the potential absence or disability — physical, psychological or otherwise — of the chief executive, and it permits the lieutenant governor to exercise emergency powers when the governor is temporarily absent.

"The problem is the provisions have a lot of high-sounding words that don't have much of a definition to them," Underwood says.

Asked in the early 1980s to define "temporary," the state's attorney general declined, advising that it was impossible to establish clear criteria.

Furthermore, language in state laws does not compel the governor to inform the lieutenant governor or others that he or she planned to be in a situation that would make it difficult or impossible to perform the necessary duties of the office — including the governor's sole authority to activate the state militia.

"I've thought about this since we thought he was hiking on the Appalachian Trail," Simpkins says, "and I'm just not aware of any circumstances where a governor has been away for any extended period of time."

Fuzzy On Transfers Of Power

The concern? That a natural disaster could occur — a major storm disabling the state, a toxic spill that needs to be contained — and the governor would be needed to exercise his power to call up the National Guard.

Sanford's secret trip was "more than just a frolic and a detour," says Simpkins.

So other than life lessons learned from the Sanford affair, does it suggest that some constitutional tweaking is needed in South Carolina — and perhaps in other states with similarly written constitutional provisions for transfer of power?

"Yes," says Debra Gammons, a visiting professor at the Charleston School of Law.

A spokeswoman for the National Governors Association says the organization doesn't track the issue of how states handle transfer of power issues when governors are either indisposed, or, in highly unusual circumstances, AWOL like Sanford.

Washington, D.C., Mayor Adrian Fenty has been criticized in recent months for taking secret trips, including one to Dubai and another to China – both with his family, and both largely paid for by the host countries. But he remained in contact with top staff, and critics have largely focused on his acceptance of paid travel from foreign governments.

More than half of states have provisions that stipulate that when the governor is out of state, the lieutenant governor serves as acting governor, says A.E. Dick Howard, a professor of law and public affairs at the University of Virginia.

"Obviously, precisely what the lieutenant governor is permitted to do varies state to state," Howard says. Some states stipulate that the lieutenant governor can only take action in the case of an emergency, or if the governor is gone more than a certain number of days.

In California, the state's constitution contains a temporary disability provision, which, Howard says, could be read to include an absence from the state similar to Sanford's.

California and Arkansas are two states, he says, where state high courts have affirmed the constitutionality of temporarily transferring power to the lieutenant governor when the governor is out of state.

Sanford announced Wednesday that he would resign as chairman of the national Republican Governors Association. He apologized to his wife, his family and his friends for creating "a fiction" about his whereabouts, and for letting down people across the state.

While Sanford may not have violated any rules of his office, in disappearing without a trace he forgot, Gammons said, that "he represents the people of the state."

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