Ackerman v. S.C. Dep't of Corr., Appellate Case No. 2012–210588.

• Citation: 415 S.C. 412,782 S.E.2d 757
• Decision Date: 10 February 2016
• Docket Number: No. 5379.,Appellate Case No. 2012–210588.,5379.
• Court: Court of Appeals of South Carolina
• Parties: Francis ACKERMAN, et al., Appellants, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Respondent.

415 S.C. 412
782 S.E.2d 757

Francis ACKERMAN, et al., Appellants,
v.
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Respondent.

Appellate Case No. 2012–210588.
No. 5379.

Court of Appeals of South Carolina.

Heard Oct. 20, 2015.
Decided Feb. 10, 2016.
Rehearing Denied March 24, 2016.

782 S.E.2d 757

Douglas H. Westbrook, of Charleston, for appellants.

Lake Eric Summers, of Malone Thompson Summers & Ott, LLC, of Columbia, for respondent.

GEATHERS, J.

415 S.C. 413

Appellants (Inmates), 196 current or former inmates participating in a Prison Industries service project operated by Respondent South Carolina Department of Corrections

782 S.E.2d 758

(SCDC), challenge an order of the South Carolina Administrative Law Court (ALC) upholding SCDC's denial of Inmates' grievances. Inmates argue their grievances invoking the Prevailing Wage Statute¹ were not subject to SCDC's fifteen-day filing deadline because these grievances concerned SCDC policy rather than an "incident." We reverse and remand for consideration of Inmates' grievances on the merits.

FACTS/PROCEDURAL HISTORY

In 1995, our legislature enacted section 24–3–430 of the South Carolina Code (2007) to authorize the expansion of the Prison Industries program into the private sector. This expansion allowed qualified private entities to use inmate labor but required the wages for participating inmates to be no less than "the prevailing wage for work of [a] similar nature in the

415 S.C. 414

private sector." Act No. 7, 1995 S.C. Acts 78. Section 24–3–430 became effective on July 1, 1995. Id. at 102. Subsequently, on September 30, 1998, SCDC entered into a contract with Williams Technologies, Inc. (WTI) for the employment of SCDC inmates on the premises of Lieber Correctional Institution (Lieber) in WTI's business of "disassembly and/or remanufacturing of its product lines at [Lieber]." The cover page for the contract document is entitled "Williams Technology Transmissions Service Contract."

The contract's "Scope of Work" provision states, in pertinent part, "Prison Industry inmates under the general oversight of SCDC will disassemble and/or remanufacture [WTI's] product lines according to engineering design and manufacturing specifications developed and provided by [WTI]...." The contract also provides, "For all purposes, inmates shall be considered to be employees of SCDC."

With regard to payment for services, the contract requires WTI to pay SCDC "$4.00 per hour per inmate for work performed[,] including training hours and hours in excess of the inmate's normal shift." The contract's cover page highlights the contract's "Requirements/Specifications," which include "Wage Rate: $4.00 per hour/per inmate; $.35/[hour] base for inmates."

On January 11, 2001, Inmate Darrell Williams filed a "Step 1" Inmate Grievance Form requesting SCDC to pay him the prevailing wage for his labor. SCDC's Inmate Grievance System Policy, designated as Policy GA–01.12, provides for formal review of inmate complaints in two steps. A Step 1 grievance is evaluated by the prison's Warden, and any appeal from the Warden's decision to the "responsible official," is designated as "Step 2." The responsible official must render a decision on the appeal within sixty days, and this decision constitutes SCDC's final response in the matter.

Lieber's Warden denied Williams' Step 1 grievance without addressing the Prevailing Wage Statute, stating, in pertinent part: "Prison Industries does not fall under the minimum wage federal guidelines. Your inmate wages are determined by the Division of Budget & Finance[.] Therefore[,] your requested action cannot be honored at this time." Williams then filed a Step 2 Grievance Form on June 26, 2001, complaining about unsafe working conditions and seeking the

415 S.C. 415

prevailing wage for his labor as well as a correction of SCDC's deductions from his wages.

While Williams' Step 2 grievance was pending, the legislature enacted the first of a series of yearly budget provisos, effective for the fiscal year beginning July 1, 2001, permitting SCDC to pay participating inmates less than the prevailing wage for "service work":²

The Director of [SCDC] may enter into contracts with private sector entities that would allow for inmate labor to be provided for prison industry service work. The use of such inmate labor may not result in the displacement of employed workers within the local region in which work is being performed. Service work is defined

782 S.E.2d 759

as any work such as repair, replacement of original manufactured items, packaging, sorting, labeling, or similar work that is not original equipment manufacturing. The department may negotiate the wage to be paid for inmate labor provided under prison industry service work contracts, and such wages may be less than the prevailing wage for work of a similar nature in the private sector.

H. 3687, Appropriation Bill 2001–2002, Part IB § 37.31 (Act No. 66, 2001 S.C. Acts 738) (emphasis added). The legislature enacted identical, or nearly identical, provisos for each following fiscal year until the 2007–2008 fiscal year. On August 1, 2007, section 24–1–295 of the South Carolina Code, which codified the language in the provisos, became effective.³

On August 3, 2001, SCDC denied Williams' Step 2 grievance. Williams' appeal to the ALC was dismissed for lack of

415 S.C. 416

subject matter jurisdiction. Williams later filed a Summons and Complaint against SCDC and WTI in circuit court, seeking the prevailing wage and other related relief and complaining about unsafe working conditions. On July 1, 2002, Williams filed an amended Summons and Complaint adding numerous plaintiffs and defendants and invoking the South Carolina Tort Claims Act, S.C.Code Ann. §§ 15–78–10 to –220 (2005 and Supp. 2015). On February 12, 2003, Williams filed a second amended complaint in the form of a class action pursuant to Rule 23, SCRCP.

While Williams' class action was pending in circuit court, Inmates filed their respective Step 1 Inmate Grievance Forms with SCDC on various dates in late September 2004, requesting the prevailing wage for their labor from 1999 through June 30, 2001, and the negotiated wage of $4.00 per hour beginning on July 1, 2001, the effective date of the first budget proviso permitting SCDC to pay participating inmates less than the prevailing wage. On October 28, 2004, Lieber's Warden denied several of these Step 1 grievances on the merits. On November 3, 2004, several Inmates filed their Step 2 Inmate Grievance Forms, challenging SCDC's denial of the requested relief. According to the parties, on this same date, the circuit court judge presiding over Williams' class action stayed SCDC's processing of Inmates' grievances.

On July 1, 2005, the circuit court filed an order dismissing Williams' class action and lifting the stay it had imposed on SCDC's processing of Inmates' grievances. However, Williams appealed the circuit court's order, and SCDC invoked the automatic stay set forth in Rule 225(a), SCACR to withhold further processing of Inmates' grievances. On February 25, 2007, our supreme court affirmed the circuit court's order, and the remittitur was filed with the Dorchester County Clerk of Court on March 22, 2007. Williams v. S.C. Dep't of Corr., 372 S.C. 255, 257, 641 S.E.2d 885, 886 (2007).

On May 14, 2007, SCDC issued final decisions on Inmates' Step 2 Forms, basing its denial of...