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25023 - Cox, et al. v. County of Florence and Cooper

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Kimberly McKnight Cox,

Clarice Kirby, and

James Lynch, Appellants,

v.

The County of Florence

and Eugene Cooper, as

Chief Magistrate for

Florence County, South

Carolina, Respondents.

Appeal From Florence County

John L. Breeden, Jr., Circuit Court Judge

Opinion No. 25023

Heard October 19, 1999 - Filed December 6, 1999

AFFIRMED IN PART; REVERSED IN PART.

J. Lewis Cromer of Cromer and Mabry, and

Benjamin A. Dunn, II, of Dunn, Dunn and Mitchell,

both of Columbia, for appellants.

James C. Rushton, III, of The Hyman Law Firm, and

County Attorney Dale R. Samuels, both of Florence,

for respondents.

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COX, ET AL. v. COUNTY OF FLORENCE AND COOPER

WALLER, A.J.: This appeal involves a challenge to the pay scale of part-

time magistrates in Florence County. We affirm in part, reverse in part.




FACTS

Appellants in this matter are three part-time magistrates, each scheduled

to work 27 hours per week. 1 However, each of the magistrates testified they

had to work additional hours in order to fulfill their job responsibilities. They

filed this lawsuit in July 1996, claiming entitlement to compensation for their

excess hours. Additionally, the magistrates contended the discrepancy in full-

time magistrates salaries of $3.10 per hour more than part-time magistrates

violates S.C. Code Ann. § 22-8-40(D) (entitling part-time magistrates a

proportional percentage of full-time magistrates' salaries).




The circuit court held a) that the complaint was untimely as it was not

filed within 30 days of County Council's denial of the magistrates initial request

for an increase, b) that to the extent the magistrates sought damages for periods

prior to July 1993, they were barred by the three year statute of limitations, c)

that the magistrates were not entitled to compensation for hours worked in

excess of their scheduled 27 hours per week; and d) County was not required to

pay part-time magistrates a "proportionate salary" based upon the $3.10 more

per hour earned by full-time magistrates, as the $3.10 per hour supplement for

full-time magistrates was to compensate them for being required to be on

emergency call for 24 hour periods.




ISSUES 2


1 Magistrate Lynch has since been raised to 39 hours per week. Anything

less than 40 hours is considered part-time. S.C. Code Ann. § 22-8-20(3).




2 The parties dispute the proper standard of review. As the issues raised

present purely legal questions, this Court has jurisdiction to correct errors of

law. See e.g., Rose v. Beasley, 327 S.C. 197, 489 S.E.2d 625 (1997) (in an action

at law, Supreme Court's jurisdiction is limited to correction of errors of law);

Smothers v. Richland Memorial Hosp., 328 S.C. 566, 493 S.E.2d 107 (Ct.App.

1997) (on appeal of equitable action tried by judge alone without a reference,

appellate court can correct errors of law); S.C. Dept. of Labor v. Girgis, 332 S.C.

162, 503 S.E.2d 290 (Ct. App. 1998) (appellate court reviewing pursuant to APA

may reverse agency decision which is affected by error of law).

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COX, ET AL. v. COUNTY OF FLORENCE AND COOPER

1. Did the circuit court err in ruling the part-time magistrates had

failed to file a petition for judicial review within 30 days of the

Florence County Council's final decision, as required by the APA?


2. Did the court err in ruling Florence County was not required to

compensate the part-time magistrates for hours each worked in

excess of their scheduled 27 hours per week?





3. Did the court err in ruling the part-time magistrates were not

entitled, in the computation of the proportional share of their

salaries, to include the $3.10 per hour differential paid to full-time

magistrates for being required to be on-call 24 hours per day for

emergencies?





1. TIMELY FILING UNDER APA


In their complaint, the magistrates alleged they had requested a pay

increase in April 1992, but had been unsuccessful in obtaining one despite

repeated efforts. In light of this allegation, the circuit ruled they had failed to

timely file for judicial review within 30 days, as required by S.C. Code Ann. §

1-23-380 (the APA).3We disagree.




Section 1-23-380(A)(1) provides, in part:

(A) A party who has exhausted all administrative remedies available

within the agency and who is aggrieved by a final decision in a contested case

is entitled to judicial review under this article...

(1) Proceedings for review are instituted by filing a -petition in the

circuit court within thirty days after the final decision of the

agency or, if a rehearing is requested, within thirty days after the

decision thereon. (Emphasis supplied).

  

In Hamm v. Public Service Comm'n, 287 S.C. 180, 336 S.E.2d 470 (1985),

we construed this provision to allow a party thirty days after written notice

of a decision to bring an appeal, rather than 30 days after a decision is made in

which to file an appeal. In the present case, the only written notice in the




3 Under 22-8-50, the county council's determination of magistrates'

compensation is a "contested case" which is reviewable under section 1-23-380.

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COX, ET AL. v. COUNTY OF FLORENCE AND COOPER



  

record is a letter from the county attorney dated July 3, 1996, in which the

magistrates were advised County did not feel they were entitled to a pay

increase. Accordingly, this written notice triggered the thirty day period

and the magistrates' complaint, filed July 10, 1996, was timely filed. The circuit

court's ruling on this issue is reversed.4





2. COMPENSATION FOR UN-SCHEDULED HOURS

  

Magistrates next contend County must compensate them for hours

worked in excess of their scheduled 27 hours per week. We disagree.





As noted previously, each of the magistrates testified that, in order to

keep up with their work load, they had to work in excess of their scheduled 27

hours per week.5 However, each of the part-time magistrates testified, as did

Chief Magistrate Cooper, that they were neither instructed nor requested to

work the excess hours by County. Chief Magistrate Cooper testified that,

although Judge Lynch's workload had increased such that his number of hours

had been increased to 39 hours per week, the other 2 magistrates should be

able to complete their work in 27 hours. He also disputed the magistrates' claims

regarding how much time it took them to perform their judicial functions.




We find no authority pursuant to which this Court may order a County

to pay part-time magistrates for time worked in excess of their scheduled hours.

Magistrates' claim, without citation of authority, that county should be estopped

to deny payment, since it benefitted from their service. The issue of estoppel

was neither raised nor ruled on below and is therefore unpreserved. Creech v.

South Carolina Wildlife and Marine Resources Dep't, 328 S.C. 24, 491 S.E.2d

571(1997) (issue must have been raised to and ruled upon by the trial judge to

be preserved for review). Moreover, it is patent that the elements of equitable

estoppel are not met in the present case as County never made a false




4 We concur, however, with the circuit court's ruling that the applicable

statute of limitations is three years pursuant to S.C. Code Ann. § 15-3-530(2).

Accordingly, magistrates may not recover for periods prior to July, 1993.


5 Judge Lynch testified he worked a total of 964 extra hours in the three

years prior to the filing of this lawsuit. Judge Cox testified to working an extra

612 &1/2 hours during the same three year period. Judge Kirby estimated she

worked an average of 5 hours per week in excess of her scheduled 27 hours per

week.


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COX, ET AL. v. COUNTY OF FLORENCE AND COOPER

  

representation that it would pay the magistrates for hours worked in excess of

those scheduled, nor did it intend magistrates do so. See Brading v. County of

Georgetown, 327 S.C. 107, 490 S.E.2d 4 (1997).


We decline to require counties to pay magistrates based on the number

of hours each individual magistrate deems necessary to fulfill his or her

responsibilities. The circuit court's ruling on this issue is affirmed.





3. RATE OF COMPENSATION

 

From 1990 until 1997, County paid its full-time magistrates $18.40 per

hour, while part-time magistrates were paid $15.30 per hour.6 According to

Chief Magistrate Cooper, the purpose of the $3.10 per hour differential was to

compensate full-time magistrates for being required to be on call 24 hours per

day for emergency duty every third week.7 Part-time magistrates were not

required to perform "emergency duty," but were required to have "weekend

duty" every fifth week. County compensated part-time magistrates for their

weekend duty by actually requiring they spend only 23 hours per week in the

office; the remaining 4 hours per week (a total of 20 hours every five weeks)

accounted for their weekend duty rotation.8


Part-time magistrates contend they are not being paid in accordance with

S.C. Code Ann. § 22-8-40(D) which provides:


6 In early 1997, the salaries were increased to $20.68 per hour and $17.18

per hour, respectively.

 

7However, one full-time magistrate, Judge McElveen, was paid the

higher salary and was not required to perform emergency duty. According to

Magistrate Cooper, Judge McElveen did perform weekend call duty every fifth

weekend (as did the part-time magistrates) for which he did not receive any

additional compensation, nor did he receive "comp time" as did the part-time

magistrates. Further, although Chief Magistrate Cooper was classified as part-

time, he received the full-time magistrates' increased hourly wage.

 

8 Presumably, this method of compensation for part-time magistrates was

an effort to comply with Ramsey v. County of McCormick, 306 S.C. 393, 412

S.E.2d 408 (1991), in which we held part-time magistrates are entitled to

compensation for time spent scheduled to be on-call.

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COX, ET AL. v. COUNTY OF FLORENCE AND COOPER

  
(D) Part-time magistrates are entitled to a proportionate

percentage of the salary provided for full-time magistrates.

This percentage is computed by dividing by forty the number of

hours a week the part-time magistrate spends in the performance

of his duties. The number of hours a week that a part-time

magistrate spends in the exercise of the judicial function, and

scheduled to be spent on call, must be the average number of hours

worked and is fixed by the county governing body upon the

recommendation of the chief magistrate. (emphasis supplied).9



By paying the full-time magistrates an additional $3.10 per hour, County

has violated the requirement that part-time magistrates be paid a proportional

percentage of the full-time magistrates' salary. See Ramsey v. McCormick

County, supra (where the words of a statute are clear and unambiguous, its

terms must be given their literal meaning). Under the literal terms of the

statute, the part-time magistrates are entitled to a proportionate percentage of

the $18.40 per hour paid to full-time magistrates.





County's contention that the additional $3.10 per hour is a mere

"supplement" to compensate for 24 hour emergency duty is untenable. County

pays one full-time magistrate this "supplement" without the requirement of

emergency duty, and pays its Chief Magistrate the full-time magistrates' salary,

notwithstanding he is employed only part time. Accordingly, County's assertion

is incredulous. Accordingly, we hold County is required to compensate part-

time magistrates a proportional percentage of the hourly wage paid to full-time

magistrates. 10


9 Full-time magistrates were paid at a rate of $18.40 per hour for 40

hours per week, for a total salary of $ 38, 272.00. Part-time magistrates, on the

other-hand, were paid a rate of $15.30 per hour for 27 hours per week, for a

total salary of $21,481.20.





10 The circuit court also ruled the part-time magistrates were entitled

only to a proportional share of the $ 25,000.00 base salary established by 22-8-

40(B), rather than a proportion of the actual salary County pays its full-time

magistrates. We disagree.

 

S.C. Code Ann. § 22-8-40 (B) provides the minimum base salary a county

must pay its full-time magistrates, depending upon the population of the

county. Given Florence county's population of 114,000, the minimum base

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COX, ET AL. v. COUNTY OF FLORENCE AND COOPER

  

CONCLUSION

 

We reverse the circuit court's ruling that the magistrates failed to timely

file for judicial review under the APA. We also reverse the holding that County

is not required to pay part-time magistrates a proportional percentage of the


salary is $25,000 The statute permits a county to pay its magistrates more than

this statutory minimum, but prohibits them from paying less than the

established base salary. S.C. Code Ann. § 22-8-40 (J)&(K). County has elected

to pay its full-time magistrates a salary of $38,000.00, some $13,000 in excess

of the minimum base salary. The circuit court held that since part-time

magistrates are being paid more than they would be entitled to if their

proportionate salary was calculated upon the $25,000.00 minimum base salary,

they are being paid what is legally due them. We disagree.

  

The circuit court's ruling ignores the plain meaning of § 22-8-40 (D) which

provides, "[p] art-time magistrates are entitled to a proportionate percentage of

the salary provided for full-time magistrates." The clear intent of the

legislature in enacting this provision was to provide a proportional share of the

salaries actually provided to full-time magistrates, and not, as county

contends, a proportional share of the mandatory minimum base salary provided

in the statute.

  

This Court cannot construe a statute without regard to its plain and ordinary meaning, and

may not resort to subtle or forced construction in an

attempt to limit or expand a statute's meaning. Paschal v. State of South

Carolina Election Comm'n, 317 S.C. 434, 454 S.E.2d 890 (1995). Furthermore,

this Court may not engraft extra requirements to legislation which is clear on

its face. Lester v. S.C. Workers Comp. Comm'n, 334 S.C. 557, 514 S.E.2d 751

(1999). To accept County's contention would require this Court to engraft onto

the statute the additional terms that part-time magistrates are entitled to a

"proportional percentage of the minimum base salary provided for full-time

magistrates." As the legislature did not see fit to do add this requirement, we

decline to do so. See Tilley v. Pacesetter, 333 S.C. 33, 508 S.E.2d 16 (1998) (if

legislature had intended certain result in statute it would have said so).

  

Under the plain and ordinary terms of the statute, part-time magistrates

are entitled to a proportional share of the actual salary County pays its full-

time magistrates. The circuit court's holding on this issue is reversed.

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COX, ET AL. v. COUNTY OF FLORENCE AND COOPER

 

actual hourly salary paid to full-time magistrates. The remainder of the circuit

court's order is affirmed.

  

AFFIRMED IN PART, REVERSED IN PART.

Toal, A.C.J., Moore, Burnett, JJ., and Acting Associate

Justice George T. Gregory, Jr., concur.

 

p.8