Eargle v. Horry County

• Decision Date: 26 April 1999
• Docket Number: No. 2880.,2880.
• Court: South Carolina Court of Appeals
• Parties: Lois EARGLE, in her capacity as Horry County Auditor, Respondent, v. HORRY COUNTY, a Body Politic and Subdivision of the State of South Carolina, and Linda Green Angus, in her capacity as Horry County Administrator, Appellants.

335 S.C. 425

517 S.E.2d 3

Lois EARGLE, in her capacity as Horry County Auditor, Respondent, v. HORRY COUNTY, a Body Politic and Subdivision of the State of South Carolina, and Linda Green Angus, in her capacity as Horry County Administrator, Appellants.

No. 2880.

Court of Appeals of South Carolina.

Heard December 9, 1998.

Decided April 26, 1999.

Rehearing Denied July 17, 1999.

John P. Henry and Emma Ruth Brittain, both of The Thompson Law Firm, of Conway, for appellants.

Thomas C. Brittain and Peter L. Hearn, both of Hearn, Brittain & Martin, of Conway, for respondent.

Sandra J. Senn, of Charleston; and Stephanie P. McDonald, of Mt. Pleasant, for Amicus Curiae South Carolina Sheriffs Association.

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 The prior opinion is hereby withdrawn, and the decision of the circuit court is affirmed in part, reversed in part, and remanded.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.C.Ann. § 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...