Were South Carolina circuit public defenders exempt from unemployment contributions as members of the judiciary?

Plain-English summary

After reviewing the public defender statutes and the unemployment-law exclusion for judiciary members, the Attorney General found no basis to exempt South Carolina circuit public defenders from the state's unemployment program. The question turned on an exclusion for members of the judiciary. Although circuit public defenders were included in the retirement system for judges and solicitors, the opinion said that did not make them judiciary members for unemployment purposes.

The opinion was narrow. It addressed the proposed judiciary-based exemption and did not identify another exemption relieving an employer of unemployment contributions for those positions.

Currency note

This opinion was issued in 2010. 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 membership in the judges-and-solicitors retirement system make a public defender part of the judiciary? A: The Attorney General said no for the unemployment provision at issue.

Q: Did the opinion find any exemption from unemployment coverage for circuit public defenders? A: No. It said it was unaware of any basis to exclude them under the reviewed statutes.

Q: What exclusion prompted the request?
A: The law excluded certain governmental service performed by a member of a legislative body or a member of the judiciary; the question was whether circuit public defenders fit the latter category.

Background and statutory framework

The Comptroller General's office asked whether employers had to make unemployment contributions for circuit public defenders. The opinion compared the statute establishing public defenders, the unemployment-law exclusion for judicial members, and the separate retirement-system provision.

Citations and references

The original text below discusses S.C. Code Ann. §§ 17-3-520 et seq., Section 41-27-260, and S.C. Code Ann. § 9-8-40.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-15-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/holly-j-m-os-9091-7-15-10-circuit-public-defenders-unemployment-program.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY GENERAL

July 15, 2010

James M. Holly, Chief of Staff
Comptroller General' s Office
1200 Senate Street
305 Wade Hampton Office Building
Columbia, South Carolina 29201
Dear Mr. Holly:
You have questioned whether circuit public defenders are exempt from this State' s unemployment program and, as a result, the employer does not have to pay an unemployment contribution on their behalf. You particularly stated that such a determination may be based upon whether the public defenders may be considered members of this State' s judiciary. Circuit public defenders are established pursuant to S.C. Code Ann. §§ 17-3-520 et seq. Based upon my review of such provisions, I am unaware of any basis to specifically exempt circuit public defenders from this State' s unemployment program. Title 41, Chapters 27 through 41, of the State Code of Laws provides for the system of unemployment compensation in this State. Section 41-27-260, as amended by recently enacted Act No. 146of2010, specifically eliminates certain positions from being considered as "employment" for purposes of Title 41. Specifically excluded from the term "employment" for such purposes is (5) service performed after December 31, 1977, in the employ of a governmental entity referred to in Section 41-27-230(2)(b), if the service is performed by an individual in the exercise of his duties as: (b) a member of a legislative body, or a member of the judiciary of a state or political subdivision;.... While a circuit public defender is by S.C. Code Ann. § 9-8-40 made a member of this State' s retirement system for judges and solicitors, I am unaware ofany basis for considering a circuit public defender a member of this State' s judiciary. Therefore, in the opinion of this office, we are unaware

REMBERT

c. D ENNIS BUILDING • POST 0 FT-1CE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSrMlLE 803-253-6283

Mr. Holly
Page2
July 15, 2010

of any basis to conclude that a circuit public defender would be exempt from this State's unemployment program. If there are any questions, please advise.

Very truly yours,
Henry McMaster
Attorney General

Cf.~# 12<iJJ_
By:

REVIEWED AND APPROVED BY:

Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General