Did a part time Ravenel town attorney qualify for state benefits as a full time employee?

Plain-English summary

In 2018, two Ravenel councilmen asked whether a town attorney who worked fewer than the town’s stated full time hours could receive state benefits and whether the pay arrangement was legal and ethical. The Attorney General did not decide that individual’s eligibility or misconduct. It directed State Health Plan questions to the Public Employee Benefit Authority and referred ethics and lawyer conduct questions to the bodies responsible for them.

The opinion separately described the town’s authority over employee compensation and cited an earlier opinion saying a political subdivision hiring an attorney by contract needed to follow its own procurement policy. It suggested reviewing the attorney’s employment contract and the town’s procurement policy, rather than reaching a factual verdict on the described arrangement.

Currency note

This opinion was issued in 2018. 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 AG say the Ravenel attorney was entitled to full time state benefits?
A: No. It directed questions about the State Health Plan and its requirements to the Public Employee Benefit Authority.

Q: Did the opinion find that the attorney or town had acted unethically?
A: No. It identified the State Ethics Commission and lawyer conduct resources for those concerns without deciding a violation.

Q: What did it say about the town’s attorney contract?
A: It cited an earlier opinion that a political subdivision contractually employing an attorney needed to follow its own procurement policy and said the town should review its contract and policy.

Background and statutory framework

The request described a town attorney paid as an employee while also billing through a private practice. The AG divided the inquiry among benefits administration, ethics and lawyer conduct, and municipal employment and procurement. It did not make the individual factual findings needed to decide whether the attorney qualified for benefits or violated a rule.

Citations and references

• The opinion said State Health Plan questions “should be directed to the Public Employment Benefit Authority (PEBA).”
• It stated that the town “should review its employment contract with the attorney and review its procurement policy.”

Official title

On whether town council attorney who works less than 20 hours per week on council business is entitled to state benefits.

Requester

The Honorable Stephen W. Tumbleston and The Honorable William Waters, Councilmen, Town of Ravenel.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-2-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/01/Tumbleston-Waters-OS-10212-FINAL-Opinion-1-2-2018-01557475xD2C78.pdf-01559832xD2C78.pdf

Original opinion text

•SOUTtt^

January 2, 2018

Councilman Stephen W. Tumbleston and Councilman William Waters
Town of Ravenel

5962 Highway 165, Suite ICQ
Ravenel, SC 29470
Dear Mr. Tumbleston and Mr. Waters:

Attorney General Alan Wilson has referred your letter dated November 6, 2017 to the Opinions section for a response. The following is this Office's understanding of your question and our opinion based on that understanding.

Issue (as quoted from your letter):

"The Town ofRavenel has been paying our Attorney as a W-2 employee since 2001. The Attorney also bills the town for additional services rendered that are performed by his private law practice. The Attorney works less than 20 hours per week and has afull-lime law practice. ... The Town of Ravenel established a 20-hour per week threshold as full-time status in order for employees to receive health insurance benefits. ... In February 2001 the Town of Ravenel submitted paper work classifying the Attorney as afull- time employee. He has been receiving state benefits as afull-time employee since 2001 although he has a law practice and has never worked the required 20 hours per week. ... Can you please advise your opinion ifthisfinancial arrangement is legal and ethical, and if not please advise the proper procedures the town should befollowing with regards to his compensation?" Our reply:

First and foremost, let us direct you to a few sources for insight into your situation. As you may well be aware, the South Carolina Ethics Commission enforces the State Ethics Act and may "initiate or

receive complaints and make investigations" of alleged violations. S.C. Code Ann. §§ 8-13-310, 8-13320. Thus, we advise consulting the Ethics Commission if you think there may be a potential violation of the Ethics Act. Additionally, lawyers are subject to the South Carolina Rules of Professional Conduct for Lawyers which are found in Rule 407 of the South Carolina Appellate Court Rules. The Commission on Lawyer Conduct investigates complaints of lawyer misconduct pursuant to Rule 413 of the Appellate Court Rules. Moreover, the South Carolina Bar has a Risk Management Director and Counsel in addition to an ethics committee that issues ethics and advisory opinions. We advise pursuing these resources if you

have questions regarding lawyer conduct. Questions regarding the State Health Plan and its legal requirements should be directed to the Public Employment Benefit Authority (PEBA).^ S.C. Code Ann. § 9-1-10 et seq.

Regarding the compensation and employment of an attorney, the Town should be following its procurement policy based on guidelines developed by the State Fiscal Accountability Authority and the Procurement Policy Committee.^ S.C. Code Ann. § 11-35-50. This Office has previously opined regarding a political subdivision's contractual employment of an attorney that it need only go follow its IlEMBERT C.Dennis BUILDING • Post Office Box II549 • Columbia,SC29211-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

Councilman Stephen W. Tumbleston and Councilman William Waters Page 2 January 2, 201 8

own procurement policy. See Op. S.C. Att'v Gen.. 2014 WL 1398599 (S.C.A.G. January 14, 2014). Regarding employment, South Carolina law requires, among other things, that:

Except as otherwise provided or as prohibited by the Constitution of this State, the compensation of all officers and employees of the State or any political subdivision, department or agency thereof shall be as from time to time provided by the General Assembly or the particular political subdivision, department or agency concerned, as the case may be.

S.C. Code Ann. § 8-15-10 (1976 Code, as amended). Thus, the Town should review its employment contract with the attorney and review its procurement policy based on guidelines developed by the State Fiscal Accountability Authority and the Procurement Policy Committee. Moreover, the Town may want to seek the services of a private law firm that specializes in employment law to avoid future concerns for issues that extend beyond procurement. We hope these resources will assist in addressing your ethical and legal concerns. This opinion only addresses some of the sources in the subject area, but we can address other authority or additional questions in a follow-up opinion. If you have any additional questions or issues, please let us know.

Sincerely,

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Anita (Mardi) S. Fair
Assistant Attorney General
REVIEWED AND APPROVED BY:

bert D. Cook
Solicitor General