Eargle v. Horry County

517 S.E.2d 3, 335 S.C. 425, 1999 S.C. App. LEXIS 64

• Court: Court of Appeals of South Carolina
• Decided: April 26, 1999
• Docket: 2880
• Status: Published

Opinions

HOWELL, Chief Judge:

Horry County and the Horry County administrator appealed from the circuit court’s determination that the administrator lacked authority to suspend three employees of the Horry County auditor. A divided panel of this Court reversed the circuit court’s decision, concluding that the county administrator did have authority to suspend employees of an elected official. See Eargle v. Horry County, Op. No. 2880 (filed August 17, 1998) (Davis Adv. Sh. No. 29). Thereafter, this Court granted a petition for rehearing en banc to review the panel decision. The prior opinion is hereby withdrawn, and the decision of the circuit court is affirmed in part, reversed in part, and remanded.

I. BACKGROUND

A. Statutory Framework

As part of the broad powers granted to counties by the Home Rule Act, S.C.Code Ann. §§ 4-9-10 through -1230 (1986 & Supp.1998), counties are explicitly authorized to “develop personnel system policies and procedures for county employees by which all county employees are regulated except those elected directly by the people.” S.C.Code Ann. § 4-9-30(7) (Supp.1998).

Pursuant to this authority, Horry County adopted Ordinance 6-87, which established a personnel policy for Horry County employees. Among other things, the Horry County personnel policy prohibits “improper use of time clocks,” “improper use of or abuse of sick leave,” and “unexcused absence[s].” The Horry County personnel policy includes suspension as a possible punishment for certain violations.

S.C.Code Ann. § 4-9-30(7) vests most decisions regarding the hiring and firing of county employees with the county. However, “[t]his employment and discharge authority does not extend to any personnel employed in departments or agencies under the direction of an elected official or an official appointed by an authority outside county government.” S.CAnn. § 4-9-30(7).

Horry County operates under the council-administrator form of government. The administrator serves as “the chief administrative officer of the county government,” S.C.Code Ann. § 4-9-630(1) (1986), and, among other duties, is charged with “the administration of county personnel policies.” S.C.Code Ann. § 4-9-630(7) (1986). However, “[w]ith the exception of organizational policies established by the governing body, the county administrator shall exercise no authority over any elected officials of the county whose offices were created either by the Constitution or by the general law of the State.” S.C.Code Ann. § 4-9-650 (1986).

B. Factual and Procedural History

Respondent Lois Eargle (the Auditor) is the duly-elected auditor for Horry County. See S.C.Code Ann. 4-9-60 (1986) (“Under the council, council-supervisor and council-administrator forms of government provided for in this chapter the county treasurer and the county auditor shall be elected.”) On December 18, 1996, the Auditor and three of her staff planned to attend together the funeral of a co-worker’s father. The staff members were all non-elected county employees hired by the Auditor. Two mere hourly employees, while the third was the salaried Deputy Auditor. En route to the funeral, the Auditor and the staff members were injured in an automobile accident.

The next day, one of the hourly staff members submitted an absentee report showing 1.5 hours absence for “vacation” on December 18. She also reported that she failed to clock out for lunch on that day. By absentee report dated December 20, 1996, the other hourly staff member claimed 2.75 hours “sick” leave on December 18, and two additional sick days for December 19 and 20, 1996. She, too, reported that she failed to clock out for lunch on December 18.

When Linda Angus, the Horry County Administrator (the Administrator), learned that the employees failed to clock out before leaving to attend the funeral and then attempted to designate the missed time as vacation or sick leave, she requested that the Auditor discipline the employees. Specifically, she requested the Auditor suspend the Deputy Auditor for “failing to supervise the situation in that she failed to require the employees to clock out,” and suspend the other employees for “attending to personal business while on Horry County time.” The Administrator offered to stagger the suspensions so they would not interrupt the operation of the Auditor’s office or to bring in temporary employees to replace them.

The Auditor refused to suspend the employees, insisting that they should receive a warning rather than a suspension. The Auditor contended that the first of the year was the busiest time in her office, and that she could not properly operate the office without her employees or with employees unfamiliar with the operation of her office.

After the Auditor’s refusal, the Administrator suspended the employees. The Deputy Auditor was suspended for five days without pay, and the other employees were suspended for three days without pay.

The Auditor then brought this action seeking a judicial declaration that the Administrator lacked the authority to suspend employees of an elected official. The parties agreed to stay implementation of the suspensions pending the outcome of the action.

After a hearing, the circuit court ruled in favor of the Auditor. The court noted that the Auditor’s employees are subject to Horry County’s personnel policies and procedures and that the Administrator has the right to enforce the policies. The court also noted that the Auditor, “[a]s a supervisor of County employees, ... has the responsibility to advise the employees of the County of the personnel policies and procedures as well as to enforce these policies.” The court concluded, however, “[r]emoval of employees from the workplace by suspension interferes with an elected official’s ability to perform the duties and responsibilities of his or her office.” The circuit court therefore concluded that the Administrator’s authority to administer and enforce personnel policies does not extend to the right to suspend the employees of an elected official.

II. SCOPE OF ADMINISTRATOR’S AUTHORITY

On appeal, the Appellants argue that the circuit court erred by concluding that the Administrator does not have the statutory authority to suspend employees of an elected official. We disagree.

As noted above, S.C.Code Ann. § 4-9-30(7) expressly authorizes counties to develop personnel polices and expressly prohibits counties from hiring or firing the employees of an elected official. It does not, however, expressly authorize or prohibit the suspension of employees of an elected official. When determining whether an administrator has such authority, we must broadly construe the powers granted to the counties by the Home Rule Act. See S.C.Code Ann. § 4-9-25 (Supp.1998) (“The powers of a county must be liberally construed in favor of the county and the specific mention of particular powers may not be construed as limiting in any manner the general powers of counties.”); S.C. Const, art. VIII, § 17 (“The provisions of this Constitution and all laws concerning local government shall be liberally construed in their favor. Powers, duties, and responsibilities granted local government subdivisions by this Constitution and by law shall include those fairly implied and not prohibited by this Constitution.”). Nonetheless, we simply cannot conclude, as the Administrator would have us do, that the failure to prohibit suspension amounts to an implicit grant of the power to suspend the employees of elected officials.

In a long line of cases, our Supreme Court has held that the Governor has no authority to appoint an official to office, or to suspend or remove an official from office, absent express statutory or Constitutional authority. Express authority to remove does not encompass the authority to suspend, nor does the express authority to suspend encompass the authority to remove. See Rose v. Beasley, 327 S.C. 197, 206-07, 489 S.E.2d 625, 629-30 (1997) (rejecting argument that Governor possessed right to suspend as an incident of Governor’s statutory power to remove from office); State ex rel. Huckabee v. Hough, 103 S.C. 87, 93, 87 S.E. 436, 437 (1915) (“[T]he conferring of the power of suspension impliedly denies the power of removal.”); McDowell v. Burnett, 92 S.C. 469, 483, 75 S.E. 873, 878 (1912) (“The General Assembly, in conferring on the Governor the power to suspend, denied him the power to remove magistrates, except as such power was conferred conditionally by other statutes____”).

While these cases are not controlling here, they do underscore the significance of the power to suspend. Notwithstanding the broad interpretation required by our Constitution and by section 4-9-25, our historical hesitation to give our chief executive the power to suspend elected officials absent express statutory or constitutional authority should make this Court extremely cautious when determining whether a particular grant of power includes the power to suspend.

As noted above, S.C.Code Ann. 44-9-650 (1986) provides that, “[w]ith the exception of organizational policies established by the governing body, the county administrator shall exercise no authority over any elected officials of the county whose offices were created either by the Constitution or by the general law of the State.” We believe the circuit court properly viewed this statute as imposing some limit on an administrator’s authority to enforce its policies against employees of an elected official.¹

As long as there are county-wide elective offices, there will be some tension between the elected officials and the county governing body. Certainly, a county governing body needs an appropriate level of control over county employees to ensure the smooth operation of county offices. However, to give the county governing body too much control over an elected official and his or her employees could force the elected official to place the interests and concerns of the governing body over those of the electorate. Moreover, a county governing body unhappy with the results of an election could use its power to render the duly-elected official largely ineffective. The various provisions of the Home Rule Act, particularly sections 4-9-30(7) and 4-9-650, reflect the General Assembly’s striking of a careful balance between the county governing body’s interest in the smooth operation of county offices and the electorate’s interest in having its votes given effect.

In our view, granting a county administrator the power to suspend the employees of an elected official disturbs the balance struck by the General Assembly by giving the administrator too much control over the operation of the elected official’s office. Suspensions of employees, even short-term suspensions, can have a devastating impact on the elected official’s ability to carry out his or her constitutional or statutory duties. Thus, giving the administrator the authority to suspend could cripple the operation of the elected official’s office and prevent the elected official from carrying out his or her duties. We believe that interpreting sections 4-9-30(7) and 4-9-630(7) as authorizing the suspension of employees of elected officials would give an administrator an impermissible level of control, albeit indirect, over an elected official, thus violating S.C.Code Ann. § 4-9-650.

Accordingly, we conclude that, absent explicit statutory authority, a county administrator or other governing body simply lacks the power to suspend the employees of an elected official.² While article VIII, section 17 of the South Carolina Constitution and S.C.Code Ann. § 4-9-25 require this Court to liberally construe the county’s authority, this rule of construction cannot be relied upon to sanction a degree of county intrusion into the affairs of an elected official that is prohibited by another statute. Cf. Hatchett v. Nationwide Mutal Ins. Co., 244 S.C. 425, 432, 137 S.E.2d 608, 611 (1964) (“There is a marked distinction between liberal construction of statutes, by which courts, from the language used, the subject-matter, and the purposes of those framing them, find out their true meaning, and the act of a court in ingrafting upon a law something that has been omitted, which the court believes ought to have been embraced. The former is a legitimate and recognized rule of construction, while the latter is judicial legislation, forbidden by the constitutional provisions distributing the powers of government among three departments, the legislative, the executive, and the judicial.”).

We fully recognize that our ruling today could lead to difficulties in counties where there may be a conflict between the county governing body and an elected official. Nonetheless, in most cases, the threat of displeasing the electorate and losing a re-election bid should be a sufficient check on the behavior of the elected official. No similar check on the county administrator’s behavior exists, given that the administrator is not elected but instead is appointed by the county council. See S.C.Code Ann. § 4-9-620 (1986).³

III. ATTORNEY’S FEES

The Appellants also contend that the circuit court erred by awarding the Auditor attorney’s fees under S.C.Code Ann. § 15-77-300 (Supp.1998). We agree.

S.C.Code Ann. § 15-77-300 provides, in relevant part:

In any civil action brought by the State, any political subdivision of the State or any party who is contesting state action, unless the prevailing party is the State or any political subdivision of the State, the court may allow the prevailing party to recover reasonable attorney’s fees to be taxed as court costs against the appropriate agency if:

(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and

(2) The court finds that there are no special circumstances that would make the award of attorney’s fees unjust.

Thus, section 15-77-300 establishes three prerequisites before an award of attorney’s fees can be made. First, the party seeking the award must be the “prevailing party.” Second, the court must determine that the agency’s actions in pressing its claim were not substantially justified. Finally, the court must determine whether there are any special circumstances that would make an otherwise appropriate award of attorney’s fees unjust. Heath v. Aiken County, 295 S.C. 416, 420, 368 S.E.2d 904, 906 (1988); see also Heath v. Aiken County, 302 S.C. 178, 182-84, 394 S.E.2d 709, 711-12 (1990) (explaining application of statutory factors).

In this case, the trial court stated in its order that “this action was necessary and beneficial to the citizens of Horry County to avoid future interruption of County business, and, therefore, attorneys fees are warranted and should be paid.” Whether an action was “necessary” or “beneficial” is not the proper standard for awarding attorney’s fees under section 15-77-300, and the circuit court’s order makes no mention of any of the facts required by section 15-77-300.

Because the circuit court failed to make the required findings, we reverse the award of attorney’s fees and remand for reconsideration of the issue. See Heath, 295 S.C. at 420, 368 S.E.2d at 906 (reversing and remanding award of attorney’s fees where trial court’s order failed to include findings required by section 15-77-300). On remand, the circuit court shall issue an order sufficiently setting forth the findings required by S.C.Code Ann. § 15-77-300.

IV. CONCLUSION

To summarize, we conclude that, absent express statutory authority, a county administrator or other county governing body has no authority to suspend the employees of an elected official, even if, as here, suspension is provided for in the county’s personnel policies. We therefore affirm the circuit court’s declaration that the Administrator lacked the authority to suspend the Auditor’s employees. However, we reverse the award of attorney’s fees to the Auditor and remand for reconsideration of the issue in light of the factors required by S.C.Code Ann. § 15-77-300.

Accordingly, for the foregoing reasons, the decision of the circuit court is hereby

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

CONNOR, ANDERSON, HUFF, STILWELL and HOWARD, JJ., and HOWARD P. KING, Acting Judge, concur. CURETON, J., concurs in part and dissents in part in a separate opinion in which GOOLSBY, J., concurs.

1 . The circuit court ruled both the Administrator and the Auditor have the right to enforce the county’s personnel policies as to the Auditor’s employees. Because these rulings are not challenged on appeal, they are the law of the case. See, e.g., Resolution Trust Corp. v. Eagle Lake & Golf Condominiums, 310 S.C. 473, 475, 427 S.E.2d 646, 648 (1993) ("Appellant has not appealed the judge’s ruling that the affirmative defenses were not properly before him, but has appealed and argued the merits of those defenses. The trial judge's procedural ruling is the law of the case since it has not been appealed.”); Englert, Inc. v. Netherlands Ins. Co., 315 S.C. 300, 304, 433 S.E.2d 871, 874 (Ct.App.1993) ("The appellant’s failure to challenge this ruling makes it the law of this case (right or wrong).”) We therefore express no opinion as to the soundness of these rulings.

2 . It could be argued, however, that short-term suspensions such as those at issue in this case pose no real threat to the operation of the elected official’s office, and that such suspensions should be viewed as a proper exercise of the power granted to the county governing body. The potential for abuse could be limited by treating long-term or indefinite suspensions as tantamount to discharge and therefore prohibited by S.C.Code Ann. § 4-9-30(7). We do not believe such an interpretation of the relevant statutes is proper. First, there is no language in the statutes that would allow some, but not all, suspensions to stand. Moreover, such a rule would provide little before-the-fact guidance to county officials considering the suspension of an employee of an elected official, and would practically guarantee that every disputed suspension of an employee of an elected official will result in a court battle to determine whether the suspension is "tantamount to discharge.” The needs of county government, its employees, and the public are ill-served by a ruling that creates as many questions as it answers.

3 . Of course, a county administrator serves at the pleasure of the county council. See S.C.Code Ann. § 4-9-620. Thus, the council could terminate the administrator if the administrator’s actions began interfering with the operation of the office of an elected official. However, should a dispute arise between county council and the elected official, the fact that the administrator must answer to county council may be of little comfort to the elected official.