Did South Carolina's suspended agriculture commissioner keep salary or benefits during suspension?

Plain-English summary

After Agriculture Commissioner Charles R. Sharpe was suspended following a federal indictment, South Carolina's comptroller general asked who should receive the office's pay and benefits. The Attorney General said Sharpe was not entitled to salary or benefits during suspension, including the state's health-insurance contribution. If he was later acquitted or the charges were dropped or withdrawn, the office said he still would not receive back pay for the suspension period.

If the governor appointed an interim commissioner, the appointee would receive the commissioner salary and related benefits while serving. The opinion treated compensation as attached to performance of the office's duties rather than to the suspended officeholder personally.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the suspended commissioner keep his paycheck or employer health contribution?
A: No. The AG treated both as compensation that was unavailable during suspension.

Q: Would acquittal restore pay for the months of suspension?
A: The office said no, and gave the same answer if the charges were dropped or withdrawn.

Q: Could an interim commissioner receive the office's salary?
A: Yes. The opinion said a governor-appointed interim commissioner would receive the salary and benefits while serving.

Background and statutory framework

Article VI, Section 8 allowed suspension of an officer after indictment for a crime of moral turpitude. The opinion applied earlier AG advice and In the Matter of Ferguson on compensation during suspension. It also cited Ridgill v. Clarendon County through an earlier opinion for an interim appointee's entitlement to the office's compensation.

Citations

• Article VI, Section 8
• In the Matter of Ferguson
• Ridgill v. Clarendon County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-24-2004-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04aug-24-Eckstrom.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER

August 24, 2004

ATTDRNEY GENERAL

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The Honorable Richard Eckstrom
Comptroller General
State of South Carolina
1200 Senate Street
305 Wade Hampton Office Building
Columbia, South Carolina 29201
Dear Mr. Eckstrom:
In a letter to this office you raised several questions arising from the federal indictment of Agriculture Commissioner Charles R. Sharpe. As you referenced, Commissioner Sharpe has been suspended from his office by Governor Sanford until such time as he should be acquitted or convicted. We understand that Commissioner Sharpe was suspended pursuant to Article VI, Section 8 of the South Carolina Constitution, which authorizes the Governor to suspend an officer upon indictment for a crime of moral turpitude. Inasmuch as Commissioner Sharpe is a constitutional officer, questions have been raised as to his right to receive compensation and related benefits during the suspension period and to the right of any interim successor to receive the Commissioner of Agriculture's salary and benefits during the period he or she serves in an interim capacity. According to your letter, Commissioner Sharpe is voluntarily declining to receive any compensation during following his suspension from office. You asked, however, is he entitled to receive salary and benefits during the period of his suspension. Prior opinions of this office have consistently concluded that a public officer suspended for the alleged commission of a crime does not generally receive compensation while suspended. See Ops. Atty. Gen. dated May 27, 2003, September 18, 1985, and December 16, 1981. The 1985 opinion recognized the long standing rule that "a public officer or employee lawfully suspended is generally not entitled to compensation during the period of his suspension." As determined by the State Supreme Court in its decision in In the Matter of Ferguson, 304 S.C. 216, 219, 403 S.E.2d 628, 630-631 (1991), The salary pertaining to an office is an incident to the office itself and not to the person discharging the duties of the office... Consistent with this proposition is the common law rule that the officer's right to compensation arises out of his performance of his duties ... Therefore, a public officer who is suspended from office is not entitled to compensation.

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POST OmCE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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fACSIMil.E: 803-253-6283

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The Honorable Richard Eckstrom
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August 24, 2004

Consistent with such, Commissioner Sharpe would not be entitled to receive his salary or benefits during the period of his suspension from office. Such would include the employer's contribution to health insurance. In our opinion, such contribution would constitute "compensation" for purposes of Article VI, Section 8.

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You next asked if Commissioner Sharpe is subsequently acquitted or the charges against him are dropped or withdrawn, is he entitled to receive back pay for the period of his suspension. The September 18, 1985 opinion previously referenced also concluded that "if a public employee is lawfully suspended after being charged with a crime and the suspension is thereafter terminated because of acquittal of the employee, the employee is not entitled to compensation for the period of time he was suspended." See also Ops. Atty. Gen. dated December 16, 1981, May 17, 1976 and March 13, 1972. Therefore, Commissioner Sharpe would not be entitled to back pay for the period of his suspension is he is subsequently acquitted or if the charges are dropped or withdrawn.

In your last question you asked if in circumstances where the Governor appoints an interim Commissioner during the period of Commissioner Sharpe's suspension, is the interim appointee entitled to receive the Commissioner of Agriculture's salary and related benefits during the period he or she serves in that capacity. An opinion ofthis office dated December 12, 1967 referencing the decision of the State Supreme Court in Ridgill v. Clarendon County, 188 S.C. 460, 199 S.E.683 (1937) concluded that an appointee to an office would be entitled to the salary and other benefits that a suspended incumbent would have been entitled to receive. Therefore, if the Governor makes an interim appointment, that appointee would be entitled to receive the Commissioner of Agriculture's salary and benefits during the period he or she serves as interim Commissioner.

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Sincerely,

Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General