Can a South Carolina clerk of court use child-support Title IV-D funds to supplement staff or their own salary?

Official title

Opinion addressing the county's obligation regarding the Clerk of Court's expenditure of Title IV-D funds made available to her thru the County Treasurer from the S.C. Department of Social Services.

Requester

Requested by M. Amanda Shuler, Esquire, Attorney for Williamsburg County.

Plain-English summary

Williamsburg County's attorney asked how the county should handle Title IV-D child-support funds that flow through the county treasurer to the Clerk of Court. The county did not dispute the Clerk's exclusive use of the money; it wanted to be sure it followed the rules. Two questions stood out: can the Clerk supplement her own salary, and the salaries of her office staff, with Title IV-D funds without County Council's prior approval, and does paying such supplements run afoul of the constitution's ban on extra compensation and § 4-11-170?

The Attorney General first explained Title IV-D: it comes from Title IV-D of the Social Security Act, the federal child-support enforcement program. In South Carolina, DSS passes Title IV-D money to the county treasurer into a separate account for the contracting entity's exclusive use, only for establishing, collecting, and enforcing child support. Salaries of people doing Title IV-D work can be reimbursed from those funds.

On staff pay, the AG concluded the Clerk, as an elected official, manages her own office personnel without county oversight (subject to general county personnel policies), so she may use Title IV-D funds to supplement office staff salaries for Title IV-D work without prior county approval, as long as the spending tracks § 43-5-235. But there is a hard limit: Article III, § 30 of the constitution and § 4-11-170 bar extra compensation or bonuses for work already performed. So supplements cannot be after-the-fact bonuses; they must be built into regular salary going forward. The AG suggested the county and Clerk allocate each employee's salary by the share of time spent on county work versus Title IV-D work.

On the Clerk's own salary, the answer was less clear and more cautious. Section 8-21-300 sets the Clerk's salary through the county's governing body and says it is not measured by fees. Finding no statute that lets Title IV-D funds raise a clerk's own salary, the AG was skeptical a court would allow a clerk to designate a supplement for herself, though Title IV-D funds could fund the portion of the clerk's salary attributable to child-support work. The AG's concern: § 8-21-300 appears to prohibit a clerk from supplementing her own salary beyond what the county fixes, absent express statutory authority.

What this means for you

Clerks of court administering Title IV-D funds

The opinion reads your authority over office staff to include using Title IV-D funds to supplement the salaries of employees doing child-support work, without prior county council approval, provided the spending stays within § 43-5-235's child-support purposes. The catch is timing and form: no bonuses or extra pay for work already done. Structure any supplement as part of regular, prospective salary, and align each employee's funding with the share of time spent on Title IV-D functions.

Counties receiving and disbursing Title IV-D funds

The funds are for the Clerk's exclusive use for child-support establishment, collection, and enforcement, and the county cannot use its procurement or accounting policies to deny that exclusive use. At the same time, the county still sets official salaries under § 8-15-10, and the constitution's extra-compensation ban applies. The opinion suggests the county and Clerk work together to set salaries based on the split between county functions and Title IV-D functions.

Clerks considering supplementing their own pay

The opinion signals real doubt here. Because § 8-21-300 fixes the Clerk's salary through the county and the constitution bars extra compensation, the AG was skeptical a clerk can grant herself a Title IV-D supplement without express statutory authority. Title IV-D funds could cover the child-support-attributable portion of the clerk's salary, but a self-designated raise is on shaky ground.

Common questions

Q: What are Title IV-D funds?
A: Federal child-support enforcement money under Title IV-D of the Social Security Act. In South Carolina, DSS distributes it to county treasurers for the exclusive use of the contracting entity (such as a clerk of court) for establishing, collecting, and enforcing child support.

Q: Can a clerk of court pay office staff from Title IV-D funds without asking the county council first?
A: Yes, for staff doing Title IV-D work, per this opinion. As an elected official the clerk manages her own personnel, so she may supplement those salaries without prior county approval, as long as the funds are used per § 43-5-235.

Q: Can those supplements be paid as bonuses?
A: No. Article III, § 30 of the South Carolina Constitution and § 4-11-170 prohibit extra pay for work already performed. Supplements must be part of a regular salary arrangement going forward, not after-the-fact bonuses.

Q: Can a clerk use Title IV-D funds to raise her own salary?
A: The AG was skeptical. Section 8-21-300 sets the clerk's salary through the county, and the AG found no statute allowing Title IV-D funds to increase a clerk's own salary. The funds could pay the child-support-attributable portion of the salary, but a self-designated supplement is doubtful.

Q: Can the county block the clerk's use of these funds through its own policies?
A: Not in a way that denies the clerk's exclusive use of the funds. A prior opinion held the county's procurement code applies to the clerk, but the county may not use it to deny the clerk's exclusive use of Title IV-D money.

Background and statutory framework

Title IV-D of the Social Security Act, enacted in 1974, created the federal Child Support Enforcement Program; the Supreme Court described it in South Carolina Department of Social Services v. Deglman. South Carolina implemented it through § 43-5-235, which lets DSS contract with counties, clerks of court, sheriffs, and others, and routes reimbursement through the county treasurer into a separate account for the contracting entity's exclusive use, only for child-support establishment, collection, and enforcement. Federal regulation 45 C.F.R. § 304.21 treats salaries of those performing Title IV-D functions as reimbursable costs.

The clerk's personnel authority rests on the Home Rule Act: § 4-9-20 and § 4-9-30(7) give elected officials control over their office staff (subject to general county personnel policies), and § 14-17-10 makes the clerk an elected official. The limits on compensation come from Article III, § 30 of the constitution (no extra compensation after service rendered) and § 4-11-170 (no extra allowance to salaried persons), which the AG read together with a 2017 opinion on morale-incentive bonuses to bar after-the-fact supplements. The clerk's own salary is governed by § 8-21-300, set by the county's governing body and not measured by fees, which drove the AG's skepticism about self-supplementation. Section 8-15-10 confirms the county council sets salaries of county officers and employees.

Citations and references

Statutes, regulations, and constitutional provisions:
- S.C. Code Ann. § 43-5-235 (Title IV-D funds; exclusive use for child-support establishment, collection, enforcement)
- S.C. Code Ann. § 8-21-300 (clerk of court salary set by county; not measured by fees)
- S.C. Code Ann. § 4-11-170 (no extra allowance to salaried persons)
- S.C. Code Ann. § 8-15-10 (county council sets salaries of county officers and employees)
- S.C. Code Ann. § 4-9-20 (county authority excludes hiring/firing elected officials' personnel)
- S.C. Code Ann. § 4-9-30(7) and § 4-9-30(6) (elected official's authority over office personnel; council positions)
- S.C. Code Ann. § 14-17-10 (election of clerks of court)
- S.C. Code Ann. § 8-15-65 (state salary supplements for clerks of court)
- S.C. Const. art. III, § 30 (no extra compensation after service rendered)
- 45 C.F.R. § 304.21 (Title IV-D reimbursable salary costs)

Cases:
- South Carolina Department of Social Services v. Deglman, 290 S.C. 542, 351 S.E.2d 864 (1986) (describing the Title IV-D Child Support Enforcement Program)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-county-s-obligation-regarding-the-clerk-of-court-s-expenditure-of-title-iv-d-funds-made-available-to-her-thru-the-county-treasurer-from-the-s-c-department-of-social-services/
• Original PDF: https://www.scag.gov/media/rjxfkmmu/03434428.pdf

Original opinion text

M4

Alan Wilson
Attorney General

November 7, 2023

M. Amanda Shuler, Esq.
Whetstone Perkins & Fulda, LLC
P.O. Box 8086
Columbia, South Carolina 29201

Dear Ms. Shuler:
We understand you are the attorney for Williamsburg County (the “County”) and wish to request
an Attorney General’s opinion on behalf of the County. You state the County seeks “guidance

regarding the County’s obligations regarding the Clerk of Court’s expenditure of Title IV-D funds

made available to her through the County Treasurer from the South Carolina Department of Social
Services.” Additionally, you state:
The County does not deny the Clerk of Court’s exclusive use of the IV-D funds,
however, the County wants to ensure that it complies with all applicable

statutes, regulations,

and other requirements in receiving,

holding, and

disbursing Title IV-D funds.

Since County Council sets the salaries of county employees and officers in
accordance with Section 8-15-10 of the South Carolina Code of Laws, may the
Clerk of Court supplement his or her salary, and/or the salaries of county

employees working within the Office of the Clerk of Court with Title IV-D
funds without the prior approval of County Council?
Second, is it permissible for the Clerk of Court to utilize the IV-D funds to pay
supplements or additional compensation to employees without violating Article

III, section 30 of the South Carolina Constitution and Section 4-1 1-170 of the
South Carolina Code of Laws? If the supplements are allowed, how may those
supplements be paid?

May the County require the supplements be paid

regularly and uniformly with each pay period as part of the employee’s salary

to allow for proper accounting or must the County pay the supplements in a
lump sum upon the request of the Clerk of Court?

RENGERT C. DENNIS BUILOLNG

. POST OFFICE 3o.\ 1 1 549 » COLOMBIA, SC 292 H-1 549 .. TELEPHONE L0?-734-3970 .

9O3- 253T,2;n

M. Amanda Shuler, Esq.
Page 2

November 7, 2023

Law/Analysis

Before we address your questions, we find it important to give some background on IV-D funds.
IV-D comes from Title IV-D of the Social Security Act, which acts as an enforcement mechanism
for child support obligations. In South Carolina Department of Social Services v. Deglman, 290
S.C. 542, 544, 351 S.E.2d 864, 865 (1986), our Supreme Court described the Title IV-D as follows:
In 1 974, Title IV, Part D of the Social Security Act was amended by Congress
to establish a Child Support Enforcement Program. The legislation requires
each state to adopt a plan for providing designated services. Upon approval of
the state plan, the federal government reimburses the state for a certain
percentage of the costs that are incurred.
In South Carolina, Title IV-D funds are paid to the South Carolina Department of Social Services
(the “Department”) who then may enter into agreements with county governments, clerks of court,
sheriffs, and other law enforcement entities to reimburse them for the cost of child support
enforcement under Title IV-D. S.C. Code Ann. § 43-5-235 (2015). The funds are paid by the

Department to the appropriate county treasurer or county finance office on a monthly basis and
must be deposited into a separate account for the exclusive use of the contracting entity “for all
activities related to the establishment, collection, and enforcement of child support obligations for
the fiscal year in which the payments are earned and may be drawn on and used only by the entity
providing the service for which the account was established.” Id,
Salaries of individuals
performing Title IV-D functions are considered costs which may be reimbursed with Title IV-D
funds. 45 C.F.R. § 304.21.
You ask whether a clerk of court may use these funds to supplement his or her salary and/or the

salaries of county employees within the clerk of court’s office without prior approval of County
Council.

We will first address the clerk’s ability to supplement the salary of the clerk’s office
staff. In a 2006 opinion, we addressed the similar question of whether a clerk of court could add
personnel using Title IV-D funds without the approval of the county council. Op. Att’v Gen., 2006
WL 1877110 (S.C.A.G. June 19, 2006). Initially, we noted counties have limited authority over

elected officials. Id. We quoted section 4-9-20 of the South Carolina Code (2021), which gives
county governments their authority, but excludes authority over elected officials and specifically
exempts personnel employed by elected officials from being hired or fired by the county.
Discussing section 4-9-20, we stated:
In previous opinions, we interpreted this provision as subjecting personnel
employed by a public official to the general personnel policies and procedures

generally applicable to county employees. Op. S.C. Atty. Gen., October 29,
1996. However, we concluded section 4-9-30(7) “vests in elected officials...
the authority to employ and discharge the county personnel within their
departments.” Moreover, we determined: “Such authority would necessarily

include assessing the functions and responsibilities of the department ... to

M. Amanda Shuler, Esq.
Page 3
November 7, 2023

determine how many employees are needed for the orderly conduct of business
and what their duties will be.” Op. S.C. Atty. Gen., February 21, 1991.
Section 14-17-10 of the South Carolina Code (1976) provides for the election
of clerks of court in each county by the qualified electorate. In an opinion dated
February 18, 1983, we specifically addressed the issue of a county council’s
authority over a clerk of court’s personnel.
Since the Clerk of Court is an elected official, the County Council does
not have responsibility for the employment and discharge of county
personnel in the Office of the Clerk of Court. Section 4-9-30(7), Code
of Laws of South Carolina, 1976. Therefore the Clerk of Court has the
power under the Home Rule Act to employ and discharge all personnel

employed in the Office of the Clerk of Court. Those personnel would,
however,

be

subject to

general

“personnel

system

policies

and

procedures for county employees by which all county employees are
regulated.” Id. Furthermore, the Council also has the authority “to
establish such . . . positions in the County as may be necessary and
proper to provide services of local concern for public purposes ....Ӥ
4-9-30(6), supra. However, none of the above described powers or
actions by the County Council can infringe upon the general authority
of the Clerk of Court, as an elected official, to make all decisions as to
employment and discharge of personnel in the Office of the Clerk of
Court.
Op. S.C, Atty. Gen., February 18, 1983.

Id. As such, we conclude the clerk of court, as an elected official, has the authority to manage the
personnel in his or her office including the hiring and firing of personnel without any oversight by
the county. Id, We further surmised the ability to determine how many employees are needed to
conduct business is included with this authority, kt
In another opinion issued in 1995, we discussed whether a clerk of court was required to follow
the county procurement code in expending Title IV-D funds. Op. Att’y Gen., 1995 WL 803674
(S.C.A.G. June 9, 1995). While we determined that the county’s procurement code applies to
clerks of court as their office falls within the auspices of county government, we cautioned as
follows:

[T]he IV-D funds are for the exclusive use of the Clerk of Court, in this instance,

unless such funds revert to the county’s general fund at the end of the fiscal
year; the county may not, by application of its procurement policies or
regulations, take actions which would deny the exclusive use of the funds to the
Clerk of Court. Whether such actions taken by the county would amount to a

M. Amanda Shuler, Esq.
Page 4

November 7, 2023

denial of the exclusive use of the funds by the Clerk of Court would be questions
of fact which are or would be beyond the scope of an opinion of this Office.
Id.

From our 2006 opinion, other than complying with general personnel policies, clerks of court, as
elected officials, have authority to manage their personnel without oversight from their county
governments. Moreover, section 43-5-235 and our 1995 opinion make clear that Title IV-D funds
are to be used exclusively by the clerk of court for activities related to the establishment, collection,
and enforcement of child support and can be used to fund the salaries of those performing Title
IV-D functions. Therefore, it is our opinion that should the clerk of court wish to use Title IV-D
funds to supplement the salaries of county employees working in the office of the clerk of court,

he or she may do so without prior approval of the county so long as the funds are used in
accordance with section 43-5-235.
Nonetheless, as you mentioned, we must note the prohibition contained in section 30 of article III
of the South Carolina Constitution, which provides:
The General Assembly shall never grant extra compensation, fee or allowance
to any public officer, agent, servant or contractor after service rendered, or
contract made, nor authorize payment or part payment of any claim under any
contract not authorized by law; but appropriations may be made for
expenditures in repelling invasion, preventing or suppressing insurrection.

S.C. Const, art. Ill, § 30. In addition, you also call our attention to section 4-11-170 of the South
Carolina Code (2021), which provides: “No member of the governing body of any county shall
vote for an extra allowance to any person who is paid by salary, nor shall the treasurer of any
county knowingly pay to any such person any extra allowance.” Therefore, the question arises as
to how clerk’s office employees may be paid Title IV-D funds for services they provide in
connection with child support enforcement.
We addressed a similar question regarding a clerk of court’s ability to pay morale incentives to
employees using bail bondsmen fees collected by the clerk of court in an opinion issued in 2017.
Op. Att’v Gen., 2017 WL 2601033 (S.C.A.G. June 5, 2017). Like Title IV-D funds, we determined

that clerks of court have exclusive use of these fees. Id. But we noted that the clerk of court could
“not expend the fees in a manner inconsistent with state or county provisions restricting the use of
public funds.” Id. Citing section 30 of article III of the South Carolina Constitution, section 4-11170, and prior opinions interpreting those provisions, we noted bonus payments are prohibited
under the South Carolina Constitution and state law. Id. As such, we advised:
Based upon our August 1, 2016 opinion, we believe that a clerk of court can not
use the bail bondsmen fees to pay his employees a “small moral[e]
improvement

incentive.”

A

clerk

of court

can

not pay

an

employee

M. Amanda Shuler, Esq.
Page 5
November 7, 2023

compensation which is greater than the amount that the employee agreed to

work for under contract or that is greater than the employee’s salary. A clerk of
court also can not pay an employee after the work has been performed.
However, contracts providing for a regular salary plus bonuses for service for a

stated period of time are legally enforceable and may be a method for a clerk of
court to reward employees for their continuous hard work. Although please
keep in mind that pursuant to section 8-15-10, the county council sets the
compensation for county officers and employees.
Id. As such, a clerk of court desiring to supplement his or her employees’ salaries with Title IVD funds, must also work within these same parameters including not providing such supplements
after the work has been performed. Moreover, in accordance with section 43-5-235 and Title IVD, Title IV-D funds should be used to only pay for salaries attributable to the establishment,
collection, and enforcement of child support obligations. Therefore, we suggest the County and
the clerk of court work together to determine the salary of each employee based upon the portion
of the employee’s time performing traditional County functions and the portion of the employee’s
time performing Title IV-D functions to determine the appropriate funding of that employee’s
salary.

Regarding whether a clerk of court’s salary may be supplemented by Title IV-D funds, the answer

is less clear. Section 8-21-300 of the South Carolina Code (2019) governs salaries of clerks of
court and registers of deeds.
The clerks of court and registers of deeds of the several counties shall receive
such salaries for performance of their duties as may be fixed by the governing
body of the county, which shall not be diminished during their terms of office,
and such compensation shall not be measured or affected by the fees and costs
received by such officers under the provisions of this article. All such fees and
costs received under the provisions of this article by such officials of any county
shall be accounted for and paid into the general fund of the county as directed
by the governing body thereof.
S.C. Code Ann. § 8-21-300. According to this provision, the salary of the clerk of court must be
set by the governing body for the county. Additionally, it specifies that the clerk of court’s salary
cannot be impacted by the collections of fees, which must be paid over to the general fund of the
county. As we explained above, Title IV-D funds are not fees paid over to the county, so there is
some question as to whether clerks of court may receive such funds as salary. However, in prior
opinions, we concluded there is a strong legislative intent that clerks of court receive salaries in
lieu of fees. Op, Att’v Gen., 1987 WL 342687 (S.C.A.G. Sept. 24, 1987). While section 8-15-65
of the South Carolina Code (2019) specifically affords salary supplements to the clerk of court
from the State, we did not find a provision in the code allowing Title IV-D funds to be used to
increase the salaries of clerks of court. Finding no statutory authority allowing Title IV-D funds
to be used to supplement the salaries of clerks of court and a strong presumption in favor of clerks

M. Amanda Shuler, Esq.
Page 6

November 7, 2023

receiving the salary set for them by their county governing body, we are skeptical that a court

would allow a clerk of court to designate a supplement for themselves. Nevertheless, we believe
Title IV-D funds could be used to fund a portion of the clerk of courts salary attributable to the
establishment, collection, and enforcement of child support obligations.
Conclusion

As part of Congress’s enactment of Title IV-D, it provided funding for child support enforcement
carried out by states in accordance with an agreed upon plan. In response, the South Carolina
Legislature enacted section 43-5-235, along with other provisions, which allowed the South
Carolina Department of Social Services to contract with clerks of court to develop and implement
child support collection programs and receive Title IV-D funds to pay for a portion of the cost of
such programs. Section 43-5-235 makes clear these funds must be exclusively used only by the
contracting entity for the “establishment, collection, and enforcement of child support obligations

. . . .” Based on prior opinions of this Office, we recognize a clerk of court, as an elected official,
has authority to manage their own staff. This authority coupled with the exclusive authority given
to clerks of court to manage Title IV-D funds received according to their agreement with the
Department, supports our belief that clerks of court may use Title IV-D funds to supplement the
salaries of their employees performing Title IV-D functions. Nonetheless, we caution that section
30 of article III of the South Carolina Constitution and section 4-11-170 of the South Carolina
Code prohibit bonus payments for work previously performed. Therefore, we suggest the County
and the clerk of court work together to establish employees’ salaries based upon their performance
of traditional county functions and Title IV-D functions.
While a clerk of court may have exclusive control over Title IV-D funds and may perform Title
IV-D functions, we arc concerned that section 8-21-300 of the South Carolina Code prohibits a
clerk of court from supplementing his or her own salary outside of the amount fixed by the
governing body of the county without express statutory authority from the Legislature.
Sincerely,

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General