ORDERS:
		
  ORDER GRANTING SUMMARY JUDGMENT
This
    matter is before the Administrative Law Court (“ALC” or “court”) on a Motion
    for Summary Judgment filed by the Respondent, South Carolina Budget and Control
    Board, South Carolina Retirement Systems (“SCRS”).  For the reasons that
    follow, SCRS’s motion is granted. 
              Summary
    judgment is proper when there is no genuine issue of material fact and the
    moving party is entitled to judgment as a matter of law.  Rule 56(c), SCRCP;
    Rule 68, ALC Rules of Procedure; see also Henderson v. Allied
    Signal, Inc., 373 S.C. 179, 183, 644 S.E.2d 724, 726 (2007). Summary
    judgment is designed to expedite disposition of cases that do not require the
    services of a fact finder.  Austin v. Beaufort County Sheriff’s Office,
    377 S.C. 31, 34, 659 S.E.2d 122, 123 (2008).   
  In
    the instant case, the parties agree upon the material facts.  Petitioner Leroy Conner
    (“Conner”) is a sixty-four year old retired member of SCRS.  He retired from
    employment with the State Board for Technical and Comprehensive Education
    (“Technical College Board”) on July 22, 2006, under a service retirement
    allowance.  His last date on the payroll of the Technical College Board was
    July 21, 2006.  On July 31, 2006, SCRS issued Conner’s first monthly retirement
    benefit check.  On August 1, 2006, Conner inquired with SCRS about the
    possibility of applying for disability retirement benefits.  On August 22,
    2006, SCRS explained by letter to Conner that he was ineligible to apply for
    disability retirement benefits because he was no longer a “member in service.” After
    exhausting his administrative appeals, Conner filed a request for a contested
    case hearing with this court. 
  Section
    9-1-1540 of the South Carolina Code provides: 
  Upon the application of a
    member in service or of his employer, a member in service on or after July 1,
    1970, who has had five or more years of earned service or a contributing member
    who is disabled as a result of an injury arising out of and in the course of
    the performance of his duties regardless of the length of membership on or
    after July 1, 1985, may be retired by the board not less than thirty days and
    not more than nine months next following the date of filing the application on
    a disability retirement allowance if the system, after a medical examination of
    the member, certifies that the member is mentally or physically incapacitated
    for the further performance of duty, that the incapacity is likely to be
    permanent, and that the member should be retired. 
  S.C. Code Ann. §
    9-1-1540 (Supp. 2007).  Case law is clear that the plain language of this
    provision requires that a member seeking disability retirement benefits file an
    application while he or she is still “in service.”  Lazicki-Thomas v. S.C.
    Budget & Control Bd., 378 S.C. 72, 661
    S.E.2d 374 (2008) (holding that § 9-1-1540 requires that an employee’s application
    for disability retirement benefits must be filed while the applicant is an
    employee of a covered employer in the retirement system in question); Anderson
    v. S.C. Budget & Control Bd., Docket No. 06-ALJ-30-0008-CC, slip op. at
    12-13 (S.C. Admin. Law Ct. Aug. 21, 2006) (en banc). 
              Although
    Conner does not dispute that he retired from service with the Technical College
    Board on July 22, 2006, he argues that because his last paycheck was not issued
    until August 16, 2006, his contract of employment was in effect until that
    date.  Conner relies on the language in Anderson stating that “member in
    service” means “a person having the status of an employee by virtue of a
    contract of employment that is in effect at the time the application for
    disability benefits is filed.”  Anderson, Docket No. 06-ALJ-30-0008-CC,
    slip op. at 12-13.  He contends that because the Technical College Board did
    not fulfill its duties under the contract to pay Conner for his services until
    August 16, 2008, he was “in service” until that date.  The court disagrees. 
              A
    promisor may have obligations that survive the term of a contract.  See 17B C.J.S. Contracts § 421 (1999) (“Upon the expiration of the period
    prescribed in the agreement, the agreement ceases to exist, and its provisions
    ordinarily have no force and effect in the future; but rights and obligations
    which have accrued are not affected by the expiration of a contract.”).  Thus,
    the fact that a party’s promise may remain executory does not extend the term
    of the contract.  Here, Conner’s contract of employment indisputably ended with
    his service retirement.  The Board had no obligation to pay Conner for services
    performed after July 21, 2006.  Its executory promise to pay Conner for
    services rendered prior to July 22, 2006 does not render the contractual
    relationship extant. 
              The
    undisputed facts show that Conner retired from service with the Technical
    College Board as of July 22, 2006.  He did not attempt to apply for disability
    retirement benefits until August 1, 2006, when he was no longer a “member in
    service.”  Accordingly, he is ineligible to apply for disability retirement
    benefits, and SCRS is entitled to judgment as a matter of law. 
              It
    is therefore 
              ORDERED that SCRS’s motion for summary judgment is granted.  
  IT
    IS SO ORDERED. 
  __________________________________ 
  PAIGE J.
    GOSSETT 
  Administrative
    Law Judge 
  August 5, 2008 
  Columbia, South Carolina 
 
 
  
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