THE STATE OF SOUTH CAROLINA
In The Supreme Court
Kimberly McKnight Cox,
Clarice Kirby, and
James Lynch, Appellants,
The County of Florence
and Eugene Cooper, as
Chief Magistrate for
Florence County, South
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,
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.
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.
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).
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
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
compensation is a "contested case" which is reviewable under section 1-23-380.
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
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
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:
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.
(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
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
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
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.
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.