Was an indicted South Carolina county supervisor entitled to pay during a lawful suspension?

Plain-English summary

The Attorney General concluded that the Oconee County supervisor was not entitled to compensation while suspended after her indictment for embezzlement and misuse of office. The office said the state constitution required the Governor to suspend an officer indicted for embezzlement or appropriation of public funds to private use. It relied on its longstanding view that a public officer lawfully suspended after criminal charges generally was not paid for the suspension period.

Currency note

This opinion was issued in 2003. 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.

Historical summary

The county council vice chair asked whether the suspended supervisor should receive pay. The AG answered no. It also quoted earlier opinions applying the no-pay rule even when charges were later dismissed or an employee was acquitted.

Common questions

Did the AG say the supervisor should receive pay while suspended?
No. It concluded she was not entitled to compensation for that period.

Why was the Governor’s suspension required?
The AG said the state constitution required suspension of an officer indicted for embezzlement.

Would dismissal of charges automatically create back pay under this rule?
The earlier opinions quoted by the AG said a lawfully suspended officer generally was not owed compensation for the suspension period even if charges were dismissed.

Background and statutory framework

An Oconee County grand jury had indicted the supervisor, and the Governor had suspended her and named an interim supervisor. The opinion analyzed the constitutional suspension provision and prior AG opinions on compensation during lawful suspension. It addressed pay during suspension, not criminal guilt.

Citations and references

The opinion discussed Article VI, § 8 of the South Carolina Constitution and quoted earlier South Carolina AG opinions on suspended public officers.

Official title

Asking whether the Oconee County Supervisor “should be suspended with or without pay” after the Oconee County Grand Jury indicted the Supervisor on counts of embezzlement and misuse of office.

Requester

H. Frank Ables, Vice Chair, Oconee County Council

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-27-2003-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03may-27-Ables.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATfORNEY GENERAL

May 27, 2003

H. Frank Ables, Vice Chair
Oconee County Council
415 South Pine Street
Walhalla, South Carolina 29691

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Dear Councilman Ables:
In your recent letter, you note that the Oconee County Grand Jury "indicted Mrs. Anna Hugh es on three counts of embezzlement and one count of misuse of office Tuesday May 20, 2003." You further state that "Governor Sanford suspended Mrs. Hughes as Oconee County Supervisor and appointed Mr. Harry R. Hamilton as interim Supervisor." Your question is "whether Mrs. Hughes should be suspended with or without pay."

Law/Analysis
This Office has, over the period of many years, consistently concluded that a public officer who is lawfully suspended for the alleged commission of a crime does not generally receive compensation during this time period. For example, in Op. S. C. Atty. Gen., Op. No. 85-101 (September 18, 1985), we recognized the time honored rule that "'a public officer or employee lawfully suspended is generally not entitled to compensation during the period of his suspension ."' (Citing 67 C.J.S., Officers,§ 221at712; 63A Am. Jur. 2d, Public Officers and Employees,§ 473.) In that same opinion, we added that
[f]ollowing the general authority, this Office has previously 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 oftime he was suspended. 1972 Op. Atty. Gen., No. 3281; Op. Atty. Gen. (December 16, 1981 )....

In the December 16, 1981 [No. 81-96) opinion, we concluded that a member of the Beaufort County school board was not "entitled to be paid during the period under which he was suspended"

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Councilman Ables
Page 2
May27, 2003
even though the charges against him were subsequently dismissed. Our opinion stated that '[t]he general rule is that an officer who is suspended from an office is not entitled to compensation during the period of his suspension unless the suspension was illegally or unlawfully made." The same conclusion was reached by this Office in Op. S.C. Atty. Gen., May 17, 1976. There, we concluded that the individual in question who was suspended was "not entitled to pay while under suspended status." These earlier opinions remain the opinion of this Office. Art. VI, § 8 of the South Carolina Constitution requires the Governor to suspend upon indictment any officer of the State or its political subdivision who is indicted for embezzlement "or the appropriation of public funds to private use." The same provision of the State Constitution authorizes the Governor to suspend State and local officers who are indicted "for a crime involving moral turpitude." Thus, upon an indictment of the Oconee County Supervisor for embezzlement, there can be no question that the suspension by the Governor is required by the State Constitution. Accordingly, based upon the longstanding opinions of this Office, it is our opinion that the Oconee County Supervisor is not entitled to compensation while under suspension.

Assistant Deputy Attorney General
RDC/ph