Can a South Carolina county council withhold an elected sheriff's salary while he is on extended leave?
Plain-English summary
Spartanburg County Auditor Sharon West asked the AG whether her county council had authority to withhold Sheriff Chuck Wright's salary during a four-week leave of absence. The Home Rule Act, S.C. Code § 4-9-30(7), bars a county council from reducing an elected official's salary mid-term, so the question was whether withholding pay during a leave is the same thing as a forbidden reduction.
The AG, through Assistant Attorney General David Leggett, said no. The threshold problem for the sheriff was that South Carolina law authorizes no "leave of absence" for an elected county constitutional officer. The legislature has explicitly granted leave for military service (§§ 8-7-20, 8-7-90) and for some categories of public employees, but never for elected sheriffs, auditors, treasurers, clerks of court, or coroners. A 1996 AG opinion defined "leave of absence" as a temporary suspension of duties with corresponding suspension of pay. Without statutory authority, an elected officer who tries to take leave is effectively refusing to perform the job.
When that happens, withholding pay does not "reduce" the salary in the constitutional sense. The salary set for the office remains the same. The county is simply not paying for work the officer is not doing. The opinion frames this as the council exercising its appropriations authority under § 4-9-25 to preserve "good government" rather than as a salary cut. The county still cannot use this lever to undermine the office itself or interfere with the sheriff's discretion when he is on duty, but it can refuse to pay for time he is voluntarily absent.
What this means for you
If you are a sheriff, auditor, treasurer, or other elected county officer
You do not have a built-in right to take an extended leave the way a salaried employee does. If you need time off for illness, surgery, family emergency, or any non-military reason, the AG's view is that:
- Short, day-to-day absences can usually be covered by a chief deputy or designated officer in your office.
- A multi-week absence is at risk of being treated as you not performing your duties, which means the county can lawfully stop your pay.
- The sole statutory leave categories (military, National Guard, jury duty in some contexts) do not extend to elected office holders generally.
- A medical emergency does not change the legal analysis but may give you political cover and grounds for negotiating with the council. It does not give you a legal entitlement to paid leave.
If you are facing a long-term medical issue and cannot perform the duties, the safest path is to resign so the office can be filled. Trying to remain in office while not functioning carries litigation and political risk.
If you are a county council member
You have authority to withhold pay when an elected officer is not performing the job. Three guardrails:
- Do not use the lever to interfere with discretionary decisions the officer makes while in office. § 4-9-30(7) and prior AG opinions still bar that.
- Document carefully that the officer is in fact absent and not performing duties. The AG explicitly says the office "cannot make factual determinations" about specific situations like the Wright matter, so factual disputes about whether the officer was actually performing remote duties go to a court, not to the AG.
- Restore pay when the officer resumes duties. Withholding past the period of absence would itself look like a salary reduction.
If you are a county auditor or treasurer responsible for issuing pay
Get the council's withholding decision in writing on the record, with specific findings about the absence. Then follow it. The AG opinion supports your refusal to issue salary checks once the council has documented the absence and authorized withholding.
If you are a citizen wondering why your sheriff is unpaid
The legal answer is that the officer is not entitled to pay for time not worked, and South Carolina has not given elected county officials the kind of paid leave that ordinary salaried employees have. The political answer is that you can ask why the council and the officer are not finding a more cooperative solution, since extended absences raise practical questions about who is actually running the office.
Common questions
Q: Doesn't the Home Rule Act ban reducing a sheriff's salary mid-term?
A: Yes, § 4-9-30(7) bars mid-term salary reductions. The AG's distinction is that withholding pay for absent days is not a reduction in salary; it is a refusal to pay for work not performed. The salary set by ordinance for the office remains unchanged.
Q: Can the sheriff sue to recover the withheld pay?
A: That would be the sheriff's option. A court could agree with the AG, or it could view the withholding as a de facto reduction. The AG opinion is persuasive authority, not binding.
Q: What if the officer is sick or injured and cannot perform duties through no fault of his own?
A: The AG does not distinguish between voluntary and involuntary absences. The opinion focuses on whether the duties are being performed, not why. Practical solutions usually involve either a chief deputy stepping in (which keeps the office running) or resignation followed by appointment of a successor.
Q: Could the council just abolish the office or cut the salary going forward?
A: No. The office is constitutional or statutory and cannot be abolished by ordinance. The salary cannot be reduced during the current term. Both protections remain in force; they just do not entitle the officer to pay for time not worked.
Q: Are deputies or staff in the sheriff's office protected the same way?
A: No. Sheriff's deputies are employees, not elected constitutional officers. The council's authority over their pay and leave is governed by general personnel rules, not by the constitutional officer salary rules.
Q: Does this same answer apply to a coroner or clerk of court?
A: The AG's reasoning is general to elected county constitutional officers. The same analysis would apply to a coroner, clerk of court, treasurer, auditor, or other directly elected county officer who tries to take an unauthorized leave.
Background and statutory framework
The Home Rule Act, S.C. Code § 4-9-10 et seq., gives counties broad authority to manage their own affairs but draws a careful line around constitutional officers. § 4-9-30(7) provides that "[t]he salary of those officials elected by the people may be increased but may not be reduced during the terms for which they are elected" and that the council's "employment and discharge authority does not extend to any personnel employed in departments or agencies under the direction of an elected official." The two restrictions together protect the independence of constitutional officers from council pressure.
§ 4-9-25 gives counties authority "necessary and proper for . . . preserving health, peace, order, and good government," with their powers to be liberally construed. § 4-9-30(5) lets counties make appropriations for the operations of the county, and § 4-9-140 requires an annual budget. Together, these create the appropriations framework the AG relied on.
The 1996 AG opinion (Op. S.C. Att'y Gen., Jan. 8, 1996) defined "leave of absence" as a "temporary absence from duty with an intention to return, during which time remuneration is suspended": a definition that already builds in the answer. The 2009 opinion on county elections boards (Op. S.C. Att'y Gen., June 17, 2009) reached the parallel conclusion that elections board members have no statutory leave authority, and the 2025 opinion extends that logic to constitutional officers.
The key balancing case is Eargle v. Horry County, 335 S.C. 425 (Ct. App. 1999), aff'd, 344 S.C. 449 (2001). Eargle articulates the line: a county governing body needs enough control to ensure smooth operation of county offices, but not so much control that it can override the electorate's choice of constitutional officers or make those officers ineffective. Withholding pay for a self-imposed absence falls on the council's side of that line because it does not reduce the salary or interfere with discretionary acts on duty.
The opinion is careful to say the AG cannot make factual determinations. That matters: the threshold question in any specific case is whether the officer is actually absent and not performing duties. If the officer is performing duties remotely or through delegated authority, the council's withholding analysis would be different.
Citations and references
Constitutional and statutory authority:
- S.C. Code § 4-9-25 (county powers liberally construed)
- S.C. Code § 4-9-30 (enumerated county powers, including § 4-9-30(7))
- S.C. Code § 4-9-140 (annual budget)
- S.C. Code §§ 8-7-20, 8-7-90 (military leave)
- S.C. Const. art. V, § 24 (constitutional officers elected by county)
Cases:
- Eargle v. Horry County, 335 S.C. 425, 517 S.E.2d 3 (Ct. App. 1999), aff'd, 344 S.C. 449, 545 S.E.2d 276 (2001) (balance of council authority and constitutional officer independence)
Source
- Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-whether-a-county-council-may-withhold-the-salary-of-a-constitutional-officer-who-takes-a-leave-of-absence/
- Original PDF: https://www.scag.gov/media/jiinvz1b/wests-os-11050-final-opinion-9-29-2025-skm_308e25092914150-pdf.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
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ALAN WILSON
ATTORNEY GENERAL
REMBERT C, DENNIS BUILLING © POST GFFICE BON 11549 «© CoLunmprsa,SC 29711-1849 TELEPHONE 802-734-3970
September 29, 2025
Sharon H. West
Spartanburg County Auditor
366 North Church Street
Spartanburg, SC 29303
Dear Auditor West:
Attorney General Alan Wilson referred your letter to the Opinions section for a response.
You seek an opinion regarding whether “a county council [has] authority under South Carolina
law to withhold the salary of an elected constitutional officer, such as sheriff... , for an extended
leave of absence due to illness or other circumstances?” Specifically, you seek clarification on
whether such an action violates the Home Rule Act, S.C. Code Ann. § 4-9-10 ef seq., which
prohibits decreasing an elected official’s salary during their term in office. See § 4-9-30(7). You
explain in your letter that the Spartanburg County Council recently threatened to withhold the
salary of Sheriff Chuck Wright during a four-week leave of absence.
Law/Analysis
I begin by noting this Office is unable to issue an advisory opinion to determine facts. As
we have stated in prior opinions, “[b]ecause this Office does not have the authority of a court or
other fact-finding body, we are not able to adjudicate or investigate factual questions.” Op. S.C.
Att'y Gen., 2003 WL 21040130 at 1 (Feb. 19, 2003) (quoting Ops. S.C. Att’y Gen., 2003 WL
21040130 at 1 (Feb. 19, 2003) and Sept. 3, 1999, at *2), Therefore, this Office cannot make
factual determinations regarding the specific situation involving Sheriff Wright’s salary, but the
Office can render an opinion on the question of law regarding the authority of a county’s governing
body to withhold the salary of a constitutional official during a leave of absence. !
We must begin by establishing under what authority an elected county official may take a
“leave of absence” from their duties. An opinion of this Office dated January 8, 1996, stated:
The term “leave of absence”. does not mean a permanent separation from
employment. Rather, it signifies a temporary absence from duty with an
intention to return, during which time remuneration is suspended. The
' Under South Carolina law, certain officials, such as sheriffs, are directly elected by the electors
in a county. See e.g,, S.C. Constitution Art. V, § 24.
Sharon H. West
Page 2
September 29, 2025
relationship of public employer and public employee would therefore continue
during this period of leave except for suspension of his obligation to carry out
the duties of his work and the compensation therefor.
Op. S.C. Att’y Gen., 1996 WL 82889 at 1 (Jan. 8, 1996). I am unaware of any statutory provisions
or policies authorizing a leave of absence for a county sheriff or other constitutional official. Such
absence of authority here contrasts with provisions, such as S.C. Code Ann. §§ 8-7-20 and 8-7-90,
which authorize leaves of absence for public employees serving in the military or National Guard.
Opinions of other attorneys general have cited situations in which leaves of absence are specifically
provided for by policies or statutes. See Ops. Ala. Att’y Gen. 2004 WL 1771087 (July 19, 2004)
and 1998 WL 879822 (March 11, 1998); Op. Miss. Att’y Gen. 2003 WL 21003316 (March 28,
2003); Fla. Att’y Gen. 2001 WL 1329740 (October 29, 2001). This lack of authorization mirrors
the lack of authorization discussed in our prior opinion regarding leaves of absence for members
of a county elections board in which we concluded that members of a county elections board are
not authorized to take leaves of absence. See Op. S.C. Att’y Gen., 2009 WL 1968623 at 2 (June
17, 2009). Based upon our review, I am unaware of any basis that would authorize a leave of
absence for a county sheriff or other constitutional official.
Since county sheriffs and other constitutional officials may not take a leave of absence, an
official who purports to do so is in fact refusing to perform the duties of his office. The question
thus becomes what actions may a county governing body take if a sheriff or other constitutional
official is not fulfilling the duties of their office.
County governing bodies have authority over how funds are appropriated and have a duty
to establish county bodies each year. Section 4-9-140 directs counties to adopt an annual budget
for the operation of the county. Section 4-9-30(5) of the South Carolina Code provides an extensive
list of enumerated powers of county governments including the power to “make appropriations for
functions and operations of the county.” Section 4-9-25 states “[t]he powers of a county must be
liberally construed in favor of the county and the specific mention of particular powers may not
be construed as limiting in any manner the general powers of counties.” Thus, the governing body
of a county has wide authority regarding the appropriation of funds.
However, “the authority of a county’s governing body is not without limitations.” Op. S.C.
Att'y Gen., 2019 WL 6244761 at 1 (Nov. 7, 2019). Section 4-9-30(7) limits the authority of
county governing bodies regarding payment of constitutional officials saying, “The salary of those
officials elected by the people may be increased but may not be reduced during the terms for which
they are elected . . . .” Further, in 2011 this Office opined that a county governing body “cannot
interfere with any of the duties and responsibilities given to elected county officials under State
law.” Op. S.C. Att’y Gen., 2011 WL 1740743 at 2 (Apr. 29, 2011). In that opinion, we considered
that § 4-9-30(7) gives county councils the authority to employ and discharge county personnel, but
states “[t]his employment and discharge authority does not extend to any personnel employed in
departments or agencies under the direction of an elected official or an official appointed by an
authority outside county government.” Based on this provision and in accordance with prior
Sharon H. West
Page 3 |
September 29, 2025
opinions, this Office determined “with regard to the budgets of elected officials, county councils
‘cannot so decrease the appropriations of an elected official’s office as to prevent the proper
functioning thereof and, thus, indirectly, to abolish that official’s office.” Id. at 1 (quoting Op.
S.C. Att’y Gen., 1978 WL 34687 at 2 (Feb. 7, 1978)); see also, Op. S.C. Att’y Gen., 2007 WL
419432 at 4 (Jan. 8; 2007) (finding reductions to budget allocations for the salaries of employees
of public officials may not be reduced to “the extent that they cause the office of the public official
to not function properly.”). In short, county governing bodies are precluded from exercising their
appropriation authority in such a way that undermines the independence of constitutional officials
who are not under the governing body’s authority and supervision.
These limitations reflect the General Assembly’s striking of a careful balance between the
county governing body’s interest in the smooth operation of county offices and the electorate’s
interest in having its votes given effect. Eargle v. Horry Cnty., 335 S.C. 425, 431, 517 S.E.2d 3, 6
(Ct. App. 1999), aff'd, 344 S.C. 449, 545 S.E.2d 276 (2001). While a county governing body needs
an appropriate level of control to ensure the smooth operation of county offices, giving the county
governing body too much control over an elected official could force the elected official to place
the interests and concerns of the governing body over those of the electorate. Moreover, a county
governing body unhappy with the results of an election could use its power to render the duly-
elected official largely ineffective. Thus, the operative feature of this balancing of interests is the
maintenance of working government while ensuring the independence of constitutionally elected
officials,
In light of this balance of authority, we turn to the withholding of a salary for an official
who is not performing the duties of their office. Since, as was discussed above, there does not
appear to be any authority for constitutional officials to take a leave of absence, a constitutional
official who purports to do so has abdicated the duties of their office. A county governing body
that withholds payment until an official resumes the duties of their office is not interfering with
the official’s exercise of authority or influencing their discretion. Quite the opposite, the county
governing body by conditioning payment on the performance of duties is insisting that the official
fulfill their duties. The governing body is not reducing the amount which the official is due for
performing their job duties; instead, the governing body is withholding monies for duties not
performed. When a county governing body exercises its authority in this way, the withheld salary
does not constitute a decrease in appropriations which prevents the proper functioning of the
official’s office nor does it constitute a reduction in their salary.
Finally, I note that such an exercise of authority by a county governing body is in line with
the necessary and proper language in § 4-9-25 which gives counties the authority “necessary and
proper for .. . preserving health, peace, order, and good government.” § 4-9-25 (emphasis added).
By requiring officials to fulfill the duties of their office in order to receive compensation, the
county governing body is taking steps necessary and proper to ensure good government in the
county.
Sharon H. West
Page 4
September 29, 2025
Conclusion
I am unaware of any authority which permits a constitutional official to take a leave of
absence. As a result, county governing bodies may withhold the salary of an official who purports
to take a leave of absence. Doing so does not impermissibly interfere with the independence of a
constitutional official and instead promotes principles of good governance in the county.
Sincerely,
a
David Leggett ><
(Assistant Attorney General
REVIEWED AND APPROVED BY:
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Solicitor General Emeritus