Could Greenwood County cut a part-time magistrate’s hours or pay when another magistrate returned or was appointed?

Plain-English summary

Greenwood County’s chief magistrate asked in 2009 whether he had to shift other magistrates’ hours and pay to accommodate a part-time magistrate returning from suspension. The Attorney General did not decide the allocation. Any terms in the South Carolina Supreme Court’s order lifting the suspension would control, and the office directed questions about the chief judge’s administrative order to State Court Administration.

A second question concerned reducing other part-time magistrates’ pay if a new part-time magistrate assumed some of their hours. The Attorney General quoted an earlier opinion treating salary protection as the general rule and describing an exception for reduced hours and compensation when at least four years had passed since the magistrate’s latest appointment and a material change in conditions warranted it. The opinion did not determine that Greenwood County met those conditions.

Currency note

This opinion was issued in 2009. 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 returning magistrate automatically receive hours taken from other magistrates? A: The Attorney General did not answer that allocation question. It said any Supreme Court determination controlled and referred the chief magistrate to State Court Administration on the administrative order.

Q: Could a county simply cut a part-time magistrate’s salary to add another position? A: The opinion described salary protection as the general rule. It identified a statutory exception for reducing hours and compensation only when the specified timing and material-change conditions were satisfied.

Q: What conditions did the cited exception require?
A: The earlier opinion quoted in this letter required at least four years since the magistrate’s most recent appointment and a material change in conditions. It said the change had to be substantial rather than a pretext.

Q: Who controlled questions about the chief magistrate’s hour-setting authority? A: The letter said any Supreme Court determination on the suspension had priority and that questions about construing the chief judge’s administrative order belonged with State Court Administration.

Background and statutory framework

The chief magistrate described three full-time positions and additional part-time hours shared among several magistrates. The opinion quoted the Supreme Court administrative order assigning chief judges responsibility for coordinating summary courts and designating office hours based on hours fixed by the county governing body. For compensation, it quoted an earlier Attorney General opinion reading Section 22-8-40(J) together with the exception in the provision it called Section 22-1-10(A). The quoted analysis treated a change in hours as potentially reducing total pay while preserving the hourly basis, subject to the statute’s stated conditions.

Citations and references

Authorities discussed: S.C. Code Ann. § 22-1-10 and Section 22-8-40(J), on magistrate appointments, hours, and salary; the South Carolina Supreme Court’s administrative order on chief judges for summary courts.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-24-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mcguire-b-s-os-8818-os-8819-7-24-09-part-time-magistrate-salary.pdf

Original opinion text

HENRY M CMASTER
A1TORNEY G ENERAL

July 24, 2009

The Honorable Bart S. McGuire
Chief Magistrate, Greenwood County
528 Monument Street, Room I 00
Greenwood, South Carolina 29646
D ear Magistrate McGuire:
In letters to this office you raised questions regarding the impact of a part-time magistrate who was suspended but has had the suspension lifted as to the status of the remaining magistrates in Greenwood County.

As to your first questions in which you asked whether if a suspended part time ministerial magistrate has had the suspension lifted, must the Chief Magistrate take hours and pay from other part time positions to "make room" for the return of the previously suspended part-time magistrate and whether the Chief Magistrate must assign hours to a part-time magistrate, consideration must first be given to whether the Supreme Court in lifting the suspension has made any provisions as to the questions posed. Of course, any determination by the Court as to the issues raised in your letter must be given priority and would control. The statutes are silent as to the responsibility of a chief magistrate to other magistrates in such regard but the Order of the Supreme Cowi appointing Chief Judges for Administrative Purposes of the Summary Courts states that the authority of the Chief Judge shall include the responsibility to
[c]ordinate the activities of the summary court judges of the county with other affected persons and/or agencies to insure cooperation and effective judicial service...
[d]esignate the hours ofoperation of each magistrate' s court office in the county, and designate the hours during which each magistrate shall be presentin the office, based upon the number of hours fixed for each magistrate by the county governing body.... I would note that the Order further states that "[n]o order issued by the Chief Judge under the authority of this Order shall be effective unless the order is filed with the Office of South Carolina

R EMBERT c. D r:NNIS BUILDING • POST OFFICE Box 11 549 • COLUMBIA, SC 292 11 -1549 • T ELEP.HON!:! 803-734-3970

• FACSIMILE 803-253-6283

The Honorable Bart S. McGuire
Page2
July 24, 2009

Court Administration and approved for consistency with statewide administrative policies." Such statement is consistent with a prior opinion of this office dated February 20, 1992 which stated that "[a]ny questions regarding construction of the referenced Order as to activities in ... (a) ... county should be directed to the State Court Administration office." Therefore, I can only suggest that you contact the State Court Administration office with regard to your question of "making room" for a previously suspended ministerial magistrate and the responsibility of assigning hours to that magistrate. In a separate letter you indicated that there are three magistrates in Greenwood County classified as full-time and are scheduled for 37.5 hours per week. There is another 37.5 hour position which has been divided amongthethreefull-timemagistrates and two part-time magistrates. You stated that "[t]he County pays the full time magistrates their full time salary and also has the additional part-time salary entered on the same paycheck stub as 'part time' pay." You have questioned whether "[s]hould an additional part-time magistrate be appointed within the County's allotted number of magistrates to assume some of the others' part time hours, may the County reduce the pay of those part-time magistrate judge positions?" A prior opinion of this office dated June 13, 2003 is helpful in responding to your question. Such opinion states as follows: S.C. Code Ann. § 22-1-10 provides that "[t]he Governor, by and with the advice and consent of the Senate, may appoint magistrates in each county of the State for a term of four years and until their successors are appointed and qualified." That Section also provides that "... each county governing body must inform, in writing, the Senators representing that county of the number of full-time and part-time magistrate positions available in the county, the number of work hours required by each position, the compensation for each position, and the area of the county to which each position is assigned .... " Section 22-8-40 provides a mechanism for determining the mini um salary to be paid magistrates and the number of magistrates each county is to have. County governments are given a certain amount ofleeway in these matters by Section 22-8-40 in that counties can determine whether their magisterial positions will be filled by full-time or part-time magistrates, the number of hours part-time magistrates are to work and the ability to pay magistrates more than the minimum established salary. While Section 22-8-40 was substantially amended by Act No. 226 of 2000, the Magistrates Court Reform Act of 2000, certain provisions in the Section have been in existence since at least 1988 (See Act No. 678 of 1988). One such provision was originally codified as Section 22-8-40(1), but is now codified as Section 22-8-40(J). That subsection provides that:

The Honorable Bart S. McGuire
Page 3
July 24, 2009

A magistrate who is receiving a salary greater than provided for his position under the provisions of this chapter must not be reduced in salary during his tenure in office, and must be paid the same percentage annual increase in salary as other magistrates. Tenure in office continues at the expiration of a term if the incumbent magistrate is reappointed .
... (Therefore) .. .it appears that a magistrate's salary may not be reduced during his tenure and his tenure continues even after his term ends if he is reappointed. This would seem to indicate that a magistrate's salary could never be reduced for the entire time that he is in office if he continues to receive consecutive reappointments. Section 22-8-40(J) cannot, however, be read in a vacuum. After the initial passage of what is now known as Section 22-8-40(J), the General Assembly enacted Act No. 136of1991. That Act amended Section 22-1-10 and added, among other things, the following language: Each magistrate's number of work hours, compensation, and work location must remain the same throughout the term of office, except for a change (1) specifically allowed by statute or (2) authorized by the county governing body at least four years after the magistrate's most recent appointment and after a material change in conditions has occurred which warrants the change. Nothing provided in this section prohibits the raising of compensation or hours and compensation during a term of office. No magistrate may be paid for work not performed except for bona fide illness or as otherwise provided by law. Different statutes in pari materia, though enacted at different times, and not referring to each other must be construed together as one system and as explanatory of each other. Fishburnev. Fishburne, 171S.C.408, 172 S.E. 426 (1934). If an irreconcilable conflict exists, the statute later in time will prevail as the later expression of legislative will. See: Feldman v. S. C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943); See also Op. S.C. Atty. Gen., dated April 30, 1999. As it is the later expression of legislative will, the above cited provision of Section 22-1-1 O(A) must be given effect. It should also, if possible, be reconciled with Section 22-8-40(J) so that the full intent of the General Assembly can be implemented. It appears that the statutes are capable of a logical reconciliation.

The Honorable Bart S. McGuire
Page4
July 24, 2009

Section 22-8-40(J) should be interpreted as the general rule that a magistrate's salary must not be reduced during his tenure. Section 22-1-1 O(A) would then be interpreted as an exception to the general rule, but only in the event that certain conditions are met. In this case, the relevant conditions necessary prior to a reduction in hours or compensation would be that at least four years have passed since the magistrate's most recent appointment and there has been a material change in conditions. See Op. S. C. Atty. Gen., dated May 14, 1996 ... Accordingly, given the materiality requirement of Section 22-1-1 O(A) and the strong language Section 22-8-40(J), it is clear that a reduction in a magistrate's hours and compensation must be based on a substantial change, not mere pretext. Additionally, prior opinions of this Office also provide support for the conclusion that Section 22-8-40(J) does not flatly prohibit a county from reducing the hours and compensation of magistrates based on the provisions of Section 22-1-1 O(A). In opinions dated April 29, 1991 and February 16, 1988, we concluded that pursuant to Section 22-8-40(D) (now § 22-8-40(F)) " ... part-time magistrates are entitled to a proportionate percentage of the salary provided full-time magistrates ... (S)uch percentage is computed by dividing by forty the number of hours the part-time magistrate spends performing his duties ... [I]t appears that part-time magistrates' 'salaries' should be considered on an hourly wage basis and not as a fixed sum received regardless ofthe number ofhours worked .... "Based on this conclusion, we opined in the May 14, 1996 opinion referenced above that " ... it appears that the compensation of a current part-time magistrate could be reduced in proportion to the reduction in the part-time magistrate's hours. [Accordingly] [t]here would not be a conflict with Section 22-8-40(I) [now§ 22-8-40(J)] assuming that the salary on an hourly basis is not being reduced." The opinion concluded by stating that S.C. Code Ann.22-8-40(J) provides the general rule that a magistrate's salary is not to be reduced during his tenure in office. Section 22-1-1 O(A), however, provides an exception to this general rule and allows counties to reduce the hours and compensation of a magistrate upon the existence of certain conditions discussed above. Such conclusion would be relevant to your question of whether should an additional part-time magistrate be appointed within the County's allotted number of magistrates to assume some of the other magistrates' part time hours, may the County reduce the pay of those part-time magisterial positions. Therefore, while generally, a magistrate's salary may not be reduced during his term of office, Section 22-1-lO(A) provides an exception to such conclusion and authorizes the reduction

The Honorable Bart S. McGuire
Page 5
July 24, 2009

of hours and compensation of a part-time magistrate consistent with a determination of the conditions provided by such provision. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

{f~,v/,id~-By:

REVIEWED AND APPROVED BY:

Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General