Would consulting for a South Carolina public college reduce a retired sheriff's pension?

Plain-English summary

A Greenville County sheriff planned to consult for Greenville Technical College after retirement and asked whether earnings above the then-applicable $25,000 limit would interrupt his pension. The 2000 informal opinion said the answer depended on whether his proposed consulting counted as employment covered by the retirement system. It gave no final classification of the proposed work.

The AG explained that the key employee-versus-contractor question was whether the college had the right to control the manner and means of the work, not merely its result. It identified the contract as the place to determine the reserved control. The letter said the South Carolina Retirement System's decision on the sheriff's circumstances would control.

Currency note

This opinion was issued in 2000. 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 consulting pay above $25,000 automatically stopped the pension?
A: No. That was the annual limit quoted from the 2000 statute for a retiree returning to covered employment. The AG said the consulting arrangement's classification had to be resolved first.

Q: What distinguished an employee from an independent contractor?
A: The opinion focused on the college's right to direct how the work was done. It cited payment method, equipment and the right to fire among the factors showing control.

Q: Who would decide how the retirement law applied to this contract?
A: The AG said the South Carolina Retirement System, as the implementing agency, would make the controlling determination.

Background and statutory framework

The version of § 9-1-1790 quoted in the letter let a retiree return to covered employment and earn up to $25,000 in a fiscal year without affecting the monthly allowance; it required suspension of the allowance during further covered service that year. The opinion applied a control-based distinction between an employee and an independent contractor and deferred the fact-specific retirement decision to the administering agency.

Citations and references

• § 9-1-1790, the retirement earnings provision quoted in the opinion.
• Todd's Ice Cream, Inc. v. South Carolina Employment Security Commission, cited for the right-to-control test.

Official title

Relating your intention to work as a consultant for Greenville Technical College after retiring from your current position as sheriff.

Requester

The Honorable Johnny Mack Brown, Sheriff, Greenville County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-10-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00oct10brown.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

October 10, 2000

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The Honorable Johnny Mack Brown
Sheriff, Greenville County
4 McGee Street
Greenville, South Carolina 29601
Dear Sheriff Brown:
Thank you for your letter of September 13, 2000 which was referred to me for response. In your correspondence, you relate your intention to work as a consultant for Greenville Technical College after retiring from your current position as sheriff. You express concern in your letter over whether S.C. Code Ann. § 9-1-1790 would subject you to a possible loss of retirement benefits should your annual income as a consultant exceed the statutory limit of $25,000. As you know, S.C. Code Section 9-1-1790 (A) provides, in part, the following: A retired member of the system may return to employment covered by the system and earn up to twenty-five thousand dollars a fiscal year without affecting the monthly retirement allowance he is receiving from the system. If the retired member continues in service after having earned twenty-five thousand dollars in a fiscal year, his retirement allowance must be discontinued during his period of service in the remainder of the fiscal year.

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Whether this section would apply to your situation, depends upon whether as a "consultant" you would be considered an independent contractor or an employee of the system. In determining if one is an employee or an independent contractor, the test is one of control over the person doing the work. In determining control, it is not the actual control exercised by the employer but, "whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner and means of its accomplishment; the principal factors showing right of control are direct evidence of right or exercise of control, method of payment, furnishing of equipment and right to fire." Todd's Ice Cream, Inc. v. South Carolina Employment Security Commission, 315 S.E.2d 373, 3 7 5 ( 1984). An independent contractor is one who contracts to do a piece of work according to his or her own methods without being subject to the control of his employer except as to the result of the work performed. One who performs work for another that represents the will of the employer, not only as to the result but also to the means and method by which the result is accomplished, is not an independent contractor but an employee. See S.C. Op. Atty. Gen. November 22, 1983. Whether

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REMBERT

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POST OFFICE Box

11549

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s.c. 29211-1549

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TELEPllONE: 803-7:14-3970

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FACSIMILE: 803-253-6283

The Honorable Johnny Mack Brown
Page 2
October 10, 2000

your employer reserves the right to control not only the result of your work, but the performance of that work, should be determined by your contract of employment. If your work constitutes that of an "employee," you would be subject to the constraints of S.C. Code Ann. §9-1-1790 (A).

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While we have attempted to provide you with some insight as to how the courts of this state have determined whether an individual is an independent contractor or employee in order for you to ascertain whether your situation would be one that invokes S.C. Code Ann. § 9-1-1790 (A), it is in your best interest to contact the South Carolina Retirement System to obtain a decision by that agency. The South Carolina Retirement System is the executive agency charged with the implementation and enforcement of the retirement statutes, and while we may comment on the law in this area, it is that agency's determination of your situation that controls. Both the courts and this office are constrained to defer to the administrative interpretations by the agency charged with the enforcement of certain statutory provisions and will not overturn such provisions absent cogent reasons. See S.C. Op. AftL Gen. January 7, 1999. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

Senior Assistant Attorney General