Could a South Carolina fire department consider an applicant pardoned for arson?

Plain-English summary

In 2017, a South Carolina senator asked whether someone convicted of arson, who had served the sentence and received a state pardon, could work for a local fire department. The Attorney General concluded that the pardon removed the statutory legal bar on firefighter employment for an arson conviction.

The statute said a person convicted of arson could not be employed as a firefighter. The AG read that restriction alongside the state pardon law and South Carolina decisions on the legal effects of a pardon. It reasoned that, had lawmakers wanted the bar to survive a pardon, they would have said so expressly. With no such language, the legal disqualification ended with the pardon.

The opinion carefully separated legal eligibility from a hiring recommendation. It said the fire department could consider the application on its merits and urged caution, but did not endorse the applicant, decide any pending application, or say a pardon compelled employment.

Currency note

This opinion was issued in 2017. 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 pardon automatically give the applicant a firefighter job?
A: No. The AG said it removed a legal prohibition; the hiring authority still decided the application on its merits.

Q: Did the opinion say an arson conviction alone barred a pardoned applicant for life?
A: No. It concluded that the prohibition did not extend to a person whose arson conviction had been pardoned.

Q: Did the AG assess the safety or suitability of a particular applicant?
A: No. It expressly confined its answer to the legal effect of the pardon and did not endorse any hiring decision.

Background and statutory framework

The request concerned the interaction between a firefighter employment restriction and the state law defining a pardon’s effect on the legal consequences of a conviction. The AG treated those statutes and the state Supreme Court’s pardon cases as the basis for predicting how a court would decide eligibility.

Citations and references

• The opinion said a pardon “removes the legal prohibition” in Section 40-80-20 and permits consideration of the application on its merits.
• It quoted the pardon statute as covering “all the legal consequences of his crime and of his conviction.”

Official title

On whether individual convicted of arson and received a pardon from South Carolina can be allowed to work for the local fire department (Section 40-80-20, Code of Laws).

Requester

The Honorable Kent Williams, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-6-2017/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/09/Williams-K.-OS-10189-FINAL-Opinion-9-6-2017-01441493xD2C78.pdf-01445015xD2C78.pdf

Original opinion text

Alan Wilson
ATTORNEY General

September 6,2017
The Honorable Kent M. Williams, Member
South Carolina Senate
PO Box 142

Columbia, SC 29202
Dear Senator Williams:

We received your opinion request dated August 28, 2017 seeking an opinion on the legal consequence of a pardon on a conviction for arson in the context of an application to work as a firefighter. The following opinion sets out our understanding of your question and our response.

Issue (as quoted from your letter, edited slightly):
A local fire chief has been contacted concerning the status of an individual who was convicted of an arson crime. The individual in question had served his sentence and also received a pardon from the State of South Carolina. [I request] a legal opinion on whether an individual who has received a pardon for a crime of arson is allowed to work for the local fire department. Law/Analysis:

It is the opinion of this Office that a court would conclude that the prohibition, found in S.C. Code Ann. § 40-80-20 (2011), of a person convicted of arson from ever being employed as a firefighter does not extend to persons who have been pardoned for such offenses. If the General Assembly had intended that an arson offense continue to result in a lifetime ban on employment as a firefighter even after the conviction was pardoned, we believe that the legislature would have stated that intent explicitly in light of the decisions of the South Carolina Supreme Court in State v. Baucom and Edwards v. SLED (discussed infra). This opinion should not be viewed as an endorsement of any application including a record of a pardoned arson offense, and we strongly encourage any hiring authority to weigh any such application with great caution. We simply opine that a pardon removes the legal prohibition on the convicted person becoming a firefighter, and confine our answer to that legal conclusion. S.C. Code Ann. § 24-21-940 (2007) defines a pardon to mean "that an individual is fully 'pardoned from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty or whatever else the law has provided." As this Office has previously opined: Rembert C.Dennis Building • Post Office Box 11549 • Columbia,SC 29211-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

Senator Kent M. Williams
Page 2

September 6, 2017

The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible. State v. Morgan, 352 S.C. 359, 574 S., E.2d 203 (Ct. App. 2002) (citing State v. Baucom, 340 S.C. 339, 531 S.E.2d 922 (2000)). All rules of statutory interpretation are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute. State v. Hudson, 336 S.C. 237, 519 S.E.2d 577 (Ct. App. 1999). Op. S.C Att'y Gen., 2005 WL 1983358 (July 14, 2005).

As you note in your request letter, S.C. Code Ann. § 40-80-20 (2011) bans a person convicted of arson from firefighting in South Carolina for life: "no person may volunteer as a firefighter, be employed as a firefighter, or perform firefighting duties if he has been convicted of, pled guilty to, or pled nolo contendere to arson."

This code section, however, does not

reference pardoned convictions as included or excluded for any purpose.

Section 40-80-20

simply is silent regarding the impact of a pardon. In the absence of any such language, we look to South Carolina precedent, which provides definitive guidance regarding pardons in this area.

i

As discussed below, our courts interpret the legal consequences of a pardon defined by Section 24-21-940 according to the decision of the South Carolina Supreme Court in State v. Baucom and its progeny. See infra.

In State v. Baucom, a driver was convicted of DUI, second offense and given an enhanced sentenced based on a prior DUI conviction. State v. Baucom, 340 S.C. 339, 344, 531 S.E.2d 922, 924 (2008) (citing S.C. Code Ann. § 56-5-2940).

The offender challenged the

sentence on the grounds that although he had been convicted of a prior DUI offense, he had

received a pardon for that prior offense before being convicted of the latest one. Id. Our state's Supreme Court agreed, and held that the prior, pardoned offense could not be considered in sentencing. Id.

The Court framed the issue as "whether enhancement of a subsequent sentence

is a collateral legal consequence of the pardoned conviction."

Id.

In so doing, our Supreme

Court rejected the reasoning of the Court of Appeals that "a pardon forgives the punishment for a crime, but does not forget or obliterate the commission of the crime." Id. at 344, 531 S.E.2d at

924. Our Supreme Court concluded that in adding the language "all the legal consequences" to
     Section 24-21-940, the General Assembly intended to abrogate a prior ruling, Bay v. S.C. Highway. Dep't, 266 S.C. 9, 221 S.E.2d 106 (1975), which had held that a pardon did not operate to preclude a civil legal consequence of a conviction (i.e. suspension of a driver's license). Id. The Court in Baucom also discussed the relevance of statutes where the General Assembly has

made exceptions to the general absolution of a pardon:

We are not aware of any reported South Carolina cases interpreting S.C. Code Ann. § 40-80-20 (201 1).

Senator Kent M. Williams
Page 3
September 6, 20 1 7

Under [S.C. Code Ann.] §§ 24-21-990 and 16-13-210, despite a pardon, a

person convicted of embezzling public funds may not hold a public office unless the General Assembly removes the disability by a two-thirds vote. S.C.Code Ann.
§ 24-21-990 (1989) and § 16-13-210 (1985). Under Rule 609(c), SCRE, a conviction pardoned based on a finding of the rehabilitation (as opposed to

innocence) of the person convicted, can be used to impeach a witness if the person has been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year. These exceptions are noteworthy because they demonstrate the General Assembly's readiness to expressly address pardons in situations where the legislature does not wish them to have full effect. Id. at 345, 531 S.E.2d at 924. Our Supreme Court expressed some displeasure with the result of

the law as applied to the facts in Baucom but concluded that the intent of the General Assembly in Section 24-21-940 was clear.

Id. at 346, 531 S.E.2d at 925. ("Although we share the

reluctance of the State, the trial court, and the Court of Appeals to sentence petitioner as if the

present offense were his first DUI, rather than his fourth, our holding is compelled by the plain and unambiguous language of the pardon statute.").

One year after the decision in Baucom, the South Carolina Court of Appeals relied upon

the decision to hold that a pardon restored the civil right to possess a pistol in South Carolina in the case of Brunson v. Stewart, 345 S.C. 283, 547 S.E.2d 504 (2001). We note that possession of

a pistol is not one of the rights specifically enumerated in S.C. Code Ann. § 24-21-990 (2007)

which are restored by a pardon2, and this holding points to our courts' broad interpretation and application of the pardon statute removing "collateral legal consequences." See Brunson. In 2002, this Office relied on the decisions in Baucom and Brunson to predict that a sex offender who received a pardon was relieved of his statutory duty under then-applicable law to register annually, because registration was a collateral legal consequence of his conviction. Op.

S.C. Att'y Gen., 2002 WL 1340410 (April 22, 2002).

This prediction was confirmed by the

decision of the South Carolina Supreme Court in Edwards v. SLED, 395 S.C. 571, 720 S.E.2d 462 (201 1), which concluded that the offender's 2004 pardon relieved him of the duty to register

under the law as of that date. Id. at 464-65, 720 S.E. at 576-77. Notably, the General Assembly had amended the sex offender registration statute in 2005 and 2008 to include mandatory

registration for pardoned offenses where the statutes had been silent before, but the Court held that the amendments could not apply retroactively. Id. at 467, 720 S.E. 2d at 582.

2 This Office has reiterated in numerous opinions that it strongly supports the Second Amendment and the right of citizens to keep and bear arms. That right is subject, however, to the constitutionally-limited power of the state and the federal governments to regulate and prohibit the purchase and possession of firearms in certain instances. See D.C. v. Heller, 554 U.S. 570 (2008); see also McDonald v. Chicago, 561 U.S. 742 (2010).

Senator Kent M. Williams
Page 4
September 6, 20 1 7

We believe that the decision of the South Carolina Supreme Court in Baucom is dispositive of the question presented in your letter. On its face, Section 40-80-20 unequivocally demonstrates a legislative intent that a person convicted of arson be legally barred from being employed as a firefighter for life. The text of the statute is silent, however, regarding pardoned offenses. See S.C. Code Ann. § 40-80-20 (2011). Conversely, Section 24-21-940 operates such that a pardon absolves a person all legal consequences of a conviction unless the General

Assembly specifically includes pardoned offense for the purposes of a particular code section. See Baucom, 340 S.C. at 345, 531 S.E.2d at 924. Accordingly, consistent with Baucom, a court faced with the question presented in your letter likely would frame the issue as whether the legal prohibition on becoming a firefighter is a collateral legal consequence of the arson conviction.

Because an arson conviction legally bars an otherwise qualified candidate from firefighting, no matter how exemplary their credentials, we have no doubt that a court would conclude that the prohibition is a collateral legal consequence of the conviction. See S.C. Code Ann. § 40-80-20

(2011).

The court most likely would then apply Baucom to hold that a pardon removes that

collateral legal consequence. The conviction could still be considered by the hiring authority, but the legal bar to employment is removed by the pardon. While this result might seem incongruous with the intent of Section 40-80-20

specifically, we believe that it is consistent with the broad power of the pardon established by the General Assembly and the absence of a specific reference to pardoned offenses in Section 40-80

20. We note that the General Assembly added the lifetime prohibition on persons convicted of
    arson by statutory amendment in 2008, and it remains silent as to pardons even after that amendment. Cf S.C. Code Ann. § 40-80-20 (2011) & Act No. 309, 2008 S.C. Acts 2480. By

contrast, the General Assembly amended the sex offender registry statute to resolve its silence on

the question and to include pardoned offenses in 2005. Edwards v. SLED, 395 S.C. 571, 576-77, 720 S.E.2d 462, 465.

While we are cautious not to imply too much intent in the absence of

legislative action, the most reasonable conclusion from comparing the histories of these statutes is to presume that if the General Assembly intended for pardoned arson offenses to retain some legal consequence, it would have included some text in Section 40-80-20 to indicate that in light of Baucom and its progeny. See Baucom, 340 S.C. at 345, 531 S.E.2d at 924 ("[T]he legislature

is charged with knowledge that a pardon relieves the convict of all the consequences of his conviction.").

This opinion should not be construed to require a hiring authority to ignore an arson conviction on an applicant's record.

We simply opine that a pardon removes the legal

prohibition on such a person becoming a firefighter found in S.C. Code Ann. § 40-80-20. Conclusion:

Senator Kent M. Williams
Page 5

September 6, 2017

In conclusion, for the reasons set out above, it is the opinion of this Office that a pardon removes the legal prohibition found in Section 40-80-20 on a person convicted of arson from becoming a firefighter and permits the hiring authority to consider the application on its merits. This Office routinely states that our opinions are not attempts to establish or comment upon public policy, and that caveat is particularly appropriate here. Nothing in this opinion should be seen as a comment on the wisdom or propriety of any particular hiring decision.

Our duty is to

set out the law as clearly as we are able, and we believe that Baucom and its progeny are

dispositive of this question.

If this law does not reflect sound public policy, then it is for the

General Assembly, not this Office, to amend the law. See Hampton v. Haley, 403 S.C. 395, 403, 743 S.E.2d 258, 262 (2013) ("In our division of powers, the General Assembly has plenary power over all legislative matters unless limited by some constitutional provision."). We note that this advisory opinion is based only on the question presented, the current law, and the information which you provided to us. This opinion is not an attempt to comment on any pending application, pending litigation, or criminal proceeding.

Until a court or the

General Assembly specifically addresses the issues presented in your letter, this is only an opinion on how this Office believes a court would interpret the law in this matter. You may also

choose to petition a court for a declaratory judgment, as only a court of law can interpret statutes

and make such determinations. See S.C. Code Ann. § 15-53-20 (2005). If it is later determined that our opinion is erroneous in any way, or if you have any additional questions or issues, please do not hesitate to contact our Office.

Sincerely,

/
David S. Jones
Assistant Attorney General

REVIEWED AND APPROVED BY:

/

Robert D. Cook
Solicitor General