Can a city pay a newly elected councilmember retroactively for work done before being sworn in?

Official title

Opinion addressing whether a municipality is authorized to compensate a councilmember for services rendered prior to qualification and being sworn into office.

Requester

Requested by Mr. Danny C. Crowe, Esquire, Attorney for the City of Sumter.

Plain-English summary

The City of Sumter's attorney asked whether the city could pay a newly elected councilmember retroactively for the period between the election and the swearing-in. The councilmember had won an open Ward One seat in a 2023 election, but the result was challenged in court all the way to the state Supreme Court. Under S.C. Code Sections 5-15-120 and 5-15-140, that contest stayed the councilmember's qualification, so the swearing-in was delayed until August 2023. In the meantime, the councilmember-elect attended meetings (from the audience), relayed constituent requests, went to training, and appeared at events, but did not sit as a voting member.

The Attorney General's office concluded a court would likely hold that the city is not authorized to pay retroactive compensation for that pre-swearing-in period. The core principle, drawn from Matter of Ferguson, is that an officer's salary is an incident of the office itself, not of the person, and the right to compensation arises from performing the duties of the office once one holds it. Because the councilmember had not yet qualified, those services were not rendered as an officeholder.

The office added a constitutional layer. An office is taken cum onere (with its burdens), and a public officer has no claim for services except where compensation is provided by law. Paying for services the city had no legal obligation to compensate would amount to "extra compensation" or a gratuity, which Article III, § 30 and a line of AG opinions treat as an unconstitutional use of public funds. The office acknowledged the councilmember-elect's diligence was admirable, but found no authority allowing the city to pay for it.

What this means for you

Municipalities and city councils: Under this opinion, a city is not authorized to pay a councilmember-elect retroactively for work done before qualifying and being sworn in. The opinion ties this both to the rule that salary attaches to the office (Matter of Ferguson) and to the constitutional bar on extra compensation and gratuities (Article III, § 30).

City attorneys and finance officers: The opinion frames after-the-fact pay for services rendered with no legal obligation to compensate as an unconstitutional gift of public funds. Its analysis applies even though, unlike earlier cases, this delay came from an election contest rather than a criminal suspension.

Candidates and councilmembers-elect: The opinion explains that during an election contest, Section 5-15-120 contemplates the incumbent holding over, and the newcomer is not yet qualified. Here the incumbent had died, so no one held the seat, but that gap did not create authority to pay the councilmember-elect.

Common questions

Can a South Carolina city give a councilmember back pay for time before they were sworn in?
According to this opinion, no. The office concluded a court would likely hold the city is not authorized to pay retroactive compensation for services rendered before the councilmember qualified and took office.

Why does the timing of the swearing-in matter so much?
Because, under Matter of Ferguson, the right to an officer's salary flows from holding the office and performing its duties. Until the councilmember qualified, the office's view is that the work was not done as an officeholder entitled to the salary attached to the seat.

What happens to the seat during an election contest?
The opinion explains that Sections 5-15-120 and 5-15-140 stay the new officer's qualification until the contest and appeals are resolved, and that the incumbent generally holds over. In this case the incumbent had died, so the seat sat vacant.

Wouldn't paying for the work just be fair?
The opinion treats it as a legal and constitutional problem, not a fairness one. It explains that compensating services the city had no legal obligation to pay for would be "extra compensation" or a gratuity barred by Article III, § 30, even while calling the councilmember-elect's efforts admirable.

Background and statutory framework

When a municipal election is contested, S.C. Code § 5-15-120 provides that newly elected officers are not qualified until the contest is finally determined, and the incumbents hold over in the meantime; S.C. Code § 5-15-140 makes the notice of appeal a stay of further proceedings. The compensation analysis rests on the principle in Matter of Ferguson, 304 S.C. 216, 403 S.E.2d 628 (1991), that salary is an incident of the office and the right to compensation arises from performing the office's duties, a principle Ferguson drew in part from De Marco v. Bd. of Chosen Freeholders of Bergen Cnty., 21 N.J. 136, 121 A.2d 396 (1956).

The office also relied on the rule that an office is taken cum onere and that public officers have no claim for services except as compensation is provided by law (Ridgill v. Clarendon County, 188 S.C. 460, 199 S.E. 683), and on the constitutional bar against extra compensation. The South Carolina Supreme Court has defined "extra compensation" under Article III, § 30 as compensation over and above that fixed by law or contract at the time the service was rendered (State ex rel. McLeod v. McLeod, 270 S.C. 557, 243 S.E.2d 446 (1978)), and the office has repeatedly advised that paying public funds beyond a legal or contractual obligation, or bestowing a gratuity, is unconstitutional.

Citations

Statutes and constitutional provision: S.C. Code § 5-15-120; S.C. Code § 5-15-140; Article III, § 30.

Cases: Matter of Ferguson, 304 S.C. 216, 403 S.E.2d 628 (1991); De Marco v. Bd. of Chosen Freeholders of Bergen Cnty., 21 N.J. 136, 121 A.2d 396 (1956); Ridgill v. Clarendon County, 188 S.C. 460, 199 S.E. 683; State ex rel. McLeod v. McLeod, 270 S.C. 557, 243 S.E.2d 446 (1978).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-a-municipality-is-authorized-to-compensate-a-councilmember-for-services-rendered-prior-to-qualification-and-being-sworn-into-office/
• Original PDF: https://www.scag.gov/media/sw5jhrlw/03389057.pdf

Original opinion text

o

Alan Wilson
Attorney General

September 12, 2023

Mr. Danny C. Crowe, Esq.
Attorney

City of Sumter
2019 Park St.
Columbia, SC 29201

Dear Mr. Crowe:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
states the following:
I serve as the General Counsel of the City of Sumter, and I have been asked
by the City Manager to request a formal opinion from your office on the issue of
whether retroactive pay

could be made by the City to

a newly elected

Councilmember whose swearing-in as a Councilmember was delayed until the final

judicial determination of an appeal of the election.
The Councilmember was elected in November 2023 to fill an open seat
representing the City's Ward One. The incumbent Councilmember for the Ward
was not a candidate for the election and died shortly before the election, so that the

seat was open and vacant at the time of the election with no possibility of a holdover
Councilmember. Under Sumter City Code section 30-5, newly elected City officers

can take office within seven days after the time for election protests has passed with
the date for a swearing-in ceremony set by the Council at a time convenient for the
newly elected members.

The November election result for this Councilmember was challenged by
an appeal in State circuit court with a further appeal by the challenger to the State
Supreme Court.

Due to the operation of S.C. Code sections 5-15-120 and 5-15-

140, the swearing-in of the Councilmember elect was delayed until August 2023
following the dismissal of the appeal lawsuit, and the denial of rehearing, by the
State Supreme Court.

Kemlt.rtC. Dennis Building

post Office Do.x 11549

COLV.MBJA.se 292 H -1 549

TElEPI WNI:

34-3970

.

Mr. Danny C. Crowe, Esq.
Page 2

September 1 2, 2023

In

the

interim

between

the

election

and

the

swearing-in,

the

Councilmember-elect did not sit on the dais at meetings as a Councilmember, but
he did attend Council meetings seated in the audience, attended the executive
session portion of Council meetings at the request of the Council, attended training

and education activities of the Municipal Association as an invited guest of the City,
conveyed requests and inquiries to the City on behalf of constituents of Ward One,
and made appearances at public events as a Councilmember-elect.
Unlike other situations considered by previous opinions of your office and
decisions of the State Supreme Court concerning councilmember compensation,

this plainly is not a situation in which the Councilmember was accused of a crime
or

suspended

from

office.

It

also

presents

the

situation

in

which

the

Councilmember, following election, performed certain services and functions that
ordinarily are involved in the duties of the office to which he was elected.
Law/Analysis

It is this Office’s opinion that a court would likely hold a municipality is not authorized to
compensate a council member with retroactive compensation for services rendered prior to
qualification and being sworn into office.

As noted in your letter, when there is a contest

challenging the results of a municipal election, sections 5-15-120 and 5-15-140 operate to stay

qualification of newly elected officers until the contest and appeals from the decision of the

municipal election commission are resolved.1 In Matter of Ferguson, 304 S.C. 216, 219, 403
S.E.2d 628, 630-31 (1991), the South Carolina Supreme Court explained, “The salary pertaining

to an office is an incident to the office itself and not to the person discharging the duties of the
office. Consistent with this proposition is the common law rule that the officer’s right to
compensation arises out of his performance of his duties.” (citations omitted).

While the

circumstances described here do not include an indictment and suspension from office as in Matter
of Ferguson, the reasoning is equally applicable.

Matter of Ferguson cites De Marco v, Bd. of

Chosen Freeholders of Bergen Cnty., 21 N.J. 136, 140-41, 121 A.2d 396, 398 (1956) as support

1 See S.C. Code § 5-15-120 (“Newly elected officers shall not be qualified until at least forty-eight hours
after the closing of the polls and in the case a contest is finally filed the incumbents shall hold over until
the contest is finally determined.”); S.C. Code § 5-15-140 (“Within ten days after notice of the decision of
the municipal election commission, any party aggrieved thereby may appeal from such decision to the court

of common pleas. ... The notice of appeal shall act as a stay of further proceedings pending the appeal.”);
see also Op. S.C. Att’y Gen.. 2005 WL 2652385 (September 19, 2005) (“[U]ntil the time period of
appealing the decision of the municipal election commission has expired or if an appeal is filed until the
appeal is resolved, it would be inappropriate for the newly-elected officers to be qualified and the incumbent
shall hold over.”) (emphasis added).

Mr. Danny C. Crowe, Esq.
Page 3

September 12, 2023

for the proposition that a public officer’s right to compensation flows from the performance of his

duties. Therein, the De Marco Court discussed an example of a police officer who “was appointed
for two years but actually served for less than a year because the police force was disbanded.” Id.

The officer’s claim for salary owed over the remainder of the two-year period in which he did not
perform services was rejected.

[H]is appointment to public office was “neither a contract between the public and
the officer that the service shall continue during the designated term, nor that the
salary shall not be changed during the term of office”; and that his right to
compensation grew “out of the rendition of the services and not out of any contract

between the government and the officer that the services shall be rendered by him.”

Id. (emphasis added). These authorities counsel that when a term of office is interrupted, whether
by a suspension from office or, as here, a statutorily imposed delay to assuming office, the period
of time an officer is entitled to compensation may not fully align with a term of office.
Section 5-15-120 presupposes an incumbent council member will continue to serve during

the pendency of such a contest. Of course, when an incumbent member dies, holding over is not
possible. It is admirable that the councilmember-elect remained appraised of issues facing the city,
relayed communications from constituents to council, and went to trainings to lessen the obvious
impacts to the electors who lacked an official representative on the council.

Nonetheless, this

Office is unaware of authority that would permit a municipality to compensate an officeholder
elect for services rendered prior to taking office.
“As respects compensation, an office is taken cum onere, and public officers have
no claim for official services rendered except where, and to the extent that,
compensation is provided by law. The duties of a public officer may be exacted

without specific compensation, and, when no compensation is provided, the
rendition of services is deemed to be gratuitous.” 67 C.J.S., Officers, § 83; Ridgill
v. Clarendon County, et al., 188 S.C. 460, 199 S.E. 683.
1963 S.C. Op. Att'y Gen. 94 (1963). If a service is rendered without a legal obligation to be
compensated, the State and its political subdivisions are prohibited from providing compensation
after the fact.
Our Supreme Court has defined “extra compensation” for purposes of Article III, §
30 as “any compensation over and above that fixed by law or contract at the time
the service was rendered.” State ex rel. McLeod v. McLeod, 270 S.C. 557, 559, 243

S.E.2d 446, 447-48 (1978). This Office has repeatedly advised that the “[u]se of
public funds to provide any form of compensation (extra compensation, insurance

payments, pension payments, etc.) for public employees is unconstitutional if it is

Mr. Danny C. Crowe, Esq.
Page 4
September 12, 2023

greater than that which the State [or political subdivision] has a contractual or legal
obligation to provide.” Op. S.C. Att’y Gen., 2012 WL 6218333 (Dec. 4, 2012); see
also Op. S.C. Att’y Gen., 1999 WL 397927 (Feb. 17, 1999). In addition, we have
consistently advised that municipal corporations are generally prohibited by law
from bestowing a gratuity on an officer or employee. Ops. S.C. Att’y Gen.. 2012
WL 6218333 (Dec. 4, 2012); 1997 WL 205801 (Feb. 3, 1997).
Op. S.C. Att’y Gen.. 2013 WL 3762704, at 1 (July 8, 2013).
Conclusion

As is discussed more fully above, it is this Office's opinion that a court would likely hold
a municipality is not authorized to compensate a council member with retroactive compensation
for services rendered prior to qualification and being sworn into office.

Sincerely,

//

Matthew Houck
Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General