Did Bamberg County owe salary and insurance benefits to a council member suspended after indictment?

Plain-English summary

In 2020, the South Carolina Attorney General concluded that Bamberg County should not pay a council member salary or insurance benefits while he was suspended from office following an indictment. The office applied the South Carolina Supreme Court's statement that an officer's right to compensation arose from performing the duties of the office, along with earlier AG opinions treating employer health-insurance contributions as compensation.

The request concerned a gubernatorial suspension of a named county council member. The opinion did not determine guilt on the criminal charges. It also cited a prior AG opinion stating that an officer would not receive back pay for a suspension period even if later acquitted or if charges were dropped.

Currency note

This opinion was issued in 2020. 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 opinion treat insurance benefits as compensation?
A: Yes. It said the employer contribution to health insurance fell within compensation withheld during the suspension.

Q: Did the AG say an acquittal would restore pay for the suspension period?
A: The opinion cited an earlier AG conclusion that later acquittal or dropped charges did not entitle the officer to back pay for that period.

Q: Did this opinion decide the criminal case?
A: No. It addressed compensation during the Governor's suspension after indictment.

Background and statutory framework

The opinion relied on the state Supreme Court's Matter of Ferguson decision and earlier AG opinions on suspended officers to conclude that compensation, including insurance benefits, was not paid during the suspension.

Citations and references

The legal authorities and conclusion summarized above appear in the linked official opinion, issued in 2020.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-19-2020-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/11/02436049.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

November 19, 2020

Richard B. Ness, Esq.
Bamberg County Attorney
PO Box 909
Bamberg, SC 29003
Dear Mr. Ness:

You have requested an opinion regarding whether a public officer who has been suspended from office for the alleged commission of a crime is entitled to compensation and benefits during the suspension. In your request letter, you explained the following: By the above-referenced Executive Order [Executive Order 2020

69], on November 6, 2020, Governor Henry McMaster suspended Bamberg County Councilmember Kerry Trent Kinard upon his indictment on criminal charges until such time as he is formally acquitted or convicted of crimes of moral turpitude. The Order does not address whether the suspension is to be with or without

As the suspension was by the Governor, pursuant to the authority granted in the Constitution, we assume that only the Governor can determine the terms of Mr. Kinard' s suspension.

pay.

Bamberg County's public officials generally receive the same insurance benefits as public employees. Additionally, when a

public employee is suspended, the suspension can be with or without pay. Bamberg County requests your opinion and guidance as to whether Bamberg County should continue to pay Mr. Kinard during his suspension until such time as he is acquitted or convicted, and whether Bamberg County should continue the Councilmember' s insurance benefits. I appreciate your input as Bamberg County wants to ensure it strictly adheres to the Governor's Order.

Rembert C. Dennis Building

.

post Office Box 11549

. Columbia, SC 2921 1-1549

. Telephone 803-734-3970

a Facsimile 803-253-6283

Richard B. Ness, Esq.
Page 2
November 19, 2020

LAW/ANALYSIS

Our South Carolina Supreme Court has addressed your issue in Matter of Ferguson. 304 S.C. 216, 219, 403 S.E.2d 628, 630-31 (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. Gaffnev v. Mallorv. 1 86 S.C. 337, 195 S.E. 840 (1938). Consistent with this proposition is the common law rule that the officer's right to compensation arises out of his performance of his duties. DeMarco v. Board of Chosen Freeholders. 21 N.J. 136, 121 A.2d 396 (1956).

Therefore, a public officer who is suspended from office is not

entitled to compensation. 67 C.J.S. Officers § 221 (1978); 63 Am.Jur.2d Public Officers and Employees. § 473 (1984). An August 24, 2004 opinion of this Office addressed whether the State Commissioner of Agriculture, who had similarly been suspended from office by Governor Sanford for being

indicted for a crime of moral turpitude, had the right to receive compensation and related benefits during the suspension period. On. S.C. Attv. Gen.. 2004 WL 2016233 (Aug. 24, 2004). Citing

the Ferguson case and this Office's prior opinions,1 we determined: 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 8.2
Id. We also stated in the opinion that the Commissioner "would not be entitled to back pay for

the period of his suspension is [if] he is subsequently acquitted or if the charges are dropped or withdrawn." Id.

See Ops. S.C. Attv. Gen.. 2003 WL 21294912 (May 27, 2003); 1985 WL 166071 (Sept. 18, 1985); and 1981 WL 96621 (Dec. 16, 1981) (a public officer who is lawfully suspended for the alleged commission of a crime does not generally receive compensation while suspended).

2S.C. Const, art. VI, § 8 provides:
[a]ny officer of the State or its political subdivisions, except members and

officers of the Legislative and Judicial Branches, who has been indicted by a grand jury for a crime involving moral turpitude or who has waived such indictment if permitted by law may be suspended by the Governor until he shall have been acquitted. In case of conviction the office shall be declared vacant and the vacancy filled as may be provided by law.

Richard B. Ness, Esq.
Page 3
November 19, 2020

CONCLUSION

Based upon Matter of Ferguson, 304 S.C. 216, 219, 403 S.E.2d 628, 630-31 (1991) and this Office's prior opinions, we believe that Bamberg County should not pay Councilman Kinard compensation, which includes insurance benefits, during his suspension.

Sincerely,

2^
Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General