ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Court (ALC or Court) for a contested case
hearing pursuant to S.C. Code Ann. § 41-10-40 (D) (1986 & Supp. 2003), S.C. Code Ann. § 41-3-610 (Supp. 2003), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003). The South
Carolina Department of Labor, Licensing and Regulation, Division of Labor (LLR or
Department), contends Respondent Town of Hollywood violated the South Carolina Payment of
Wages Act. More specifically, the Department contends that Respondent violated the provisions
of S.C. Code Ann. § 41-10-40 (entitled “Medium of payment; deposit of wages to employee’s
credit; prohibition against deductions in absence of written notice; time and place of payment”)
on five occasions. For those five violations, the Department seeks to levy a fine in the amount of
Five Hundred ($500.00) Dollars against Respondent. A hearing on this matter was held on
February 2, 2005, at the offices of the ALC in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make
the following Findings of Fact by a preponderance of the evidence:
1.Notice of the time, date, place and subject matter of this hearing was timely and
properly given to all parties.
2.Respondent Town of Hollywood (Hollywood)
hires employees by the hour and
by salary, and, as such, is subject to the South Carolina Payment of Wages Act, S.C. Code Ann.
§§ 41-10-10 et seq. (1986 & Supp. 2003).
3.Hollywood's government is set up as a mayor-council form of government
pursuant to the S.C. Code Ann. §§ 5-9-10 et seq. (1976 & Supp. 2003). Gerald Schuster was
elected Mayor of Hollywood in November 2002. He took office in July 2003.
4.Mayor Schuster testified that it is the duty of the Town Treasurer to prepare the
pay checks of the employees of Hollywood on a bi-weekly basis. He also set forth that it is the
responsibility of both the Mayor and Mayor Pro Tem to sign all checks drawn on Hollywood's
account, including pay checks.
5.In July 2003, Mayor Schuster appointed and the Hollywood Town Council
(Council) approved Kenneth Edwards (Edwards) for the position of Town Planning and Zoning
Administrator. Afterwards, a dispute arose between the members of the Council and Mayor
Schuster concerning Edwards' employment. On October 1, 2003, the Council voted to terminate
Edwards' employment with Hollywood by a majority vote. Both Mayor Schuster and Edwards
were present during that vote.
6.Thereafter, Mayor Schuster refused to honor the Council's action and continued to
instruct the Town Treasurer to prepare Edwards' bi-weekly pay checks from approximately
October 22, 2003 until December 31, 2003. The Mayor testified that he believed his actions
were authorized by the mayor-council form of government set up in Hollywood pursuant to the
South Carolina Code of Laws. However, the Mayor Pro Tem, who in this form of government is
also a member of Council, refused to sign those pay checks under the belief that Edwards had
been properly terminated by the majority vote of the Council. Subsequently, Edwards did not
receive the paychecks in question and was informed that he did not receive them because the
Mayor Pro Tem would not sign them. Even so, Edwards continued to show up for work as
Hollywood's Planning and Zoning Administrator.
7.After working in an "unpaid capacity" for approximately three months, Kenneth
Edwards resigned from his position in early January 2004 and filed a complaint on or about
January 6, 2004, against the Town of Hollywood through the South Carolina Department of
Labor, Licensing and Regulation, Division of Labor. In his complaint, Edwards stated that:
“Mayor Pro Tem Fred Mitchell refused to sign claimants [sic] checks for paydays 10/24/03,
12/5/03, 12/19/03 and 1/2/04. Mayor Pro Tem also refused to sign expense check for claimant
dated 11/20/03”
Furthermore, in an undated letter from Mayor Schuster to LLR Investigator
Ron Helmey in response to Helmey's request for additional information regarding Edwards'
complaint, Mayor Schuster set forth, in part:
It is beyond my comprehension why the Mayor Pro Tem did not sign his
paychecks on the dates in question. As per the policy of the Town, I reviewed the
invoices for the paychecks for Mr. Edwards and approved them. Following that,
the checks themselves were prepared and presented to me along with the other
paychecks. I signed Mr. Edwards [sic] check on each of the mentioned dates and
returned the check to the Town Clerk/Treasurer. She as per routine presented the
checks for a co-signature of the Mayor Pro Tem. In each of the incidents in
question, Mr. Fred Mitchell refused to sign the check and left no reason for this
failure to sign.
At no time during the investigation was Ron Helmey informed of or made aware of the October
1, 2003 Council vote to terminate Kenneth Edwards.
8.After his investigation and based on the information presented to Investigator
Helmey, Respondent Town of Hollywood was charged with five violations of S.C. Code Ann. §
41-10-40(D) (1986 & Supp. 2003).
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003), S.C. Code
Ann. § 41-3-610 (Supp. 2003), and S.C. Code Ann. § 41-10-80 (1986 & Supp. 2003), the
Administrative Law Court has jurisdiction to hear this contested case. In weighing the evidence
and deciding a contested case on the merits, the Administrative Law Court must make findings
of fact and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) v.
State Board of Medical Examiners, 329 S.C. 371, 496 S.E. 2d 17 (1998).
2.The Department seeks to levy a fine in the amount of Five Hundred ($500.00)
Dollars against the Respondent pursuant to S.C. Code Ann. § 41-10-80(B) (1986 & Supp. 2003).
Section 41-10-80(B) provides that: “Any employer who violates the provisions of Section 41-10-40 must be assessed a civil penalty of not more than one hundred dollars for each violation.”
Section 41-10-40(D) provides that: “Every employer in the State shall pay all wages due at the
time and place designated as required by subsection (A) of § 41-10-30.” Section 41-10-30(A)
sets forth that:
Every employer shall notify each employee in writing at the time of hiring of the
normal hours and wages agreed upon, the time and place of payment, and the
deductions which will be made from the wages, including payments to insurance
programs. The employer has the option of giving written notification by posting
the terms conspicuously at or near the place of work. Any changes in these terms
must be made in writing at least seven calendar days before they become
effective.
3.Respondent contends that the Hollywood Town Council has the authority to
dismiss Edwards. Therefore, since the Council terminated Edwards before the disputed wages
were earned, those wages are not owed. All powers of the municipality are vested in the council,
except as otherwise provided by law. . . . S.C. Code Ann. § 5-7-160 (1976). However, S.C.
Code Ann. § 5-9-30(1) (1976) provides that the mayor is the chief administrative officer and
shall have the powers and duties:
(1) To appoint and, when he deems it necessary for the good of the municipality, suspend or remove all municipal employees . . . .
Respondent recognizes that a mayor is granted the authority under Section 5-9-30 to remove
municipal employees, but argues that section also provides that he is “responsible to the council
for the administration of all city affairs placed in his charge by or under Chapters 1 through 17.”
(Emphasis added). Respondent contends that pursuant to that responsibility, the mayor must
follow the dictates of council concerning the termination of the municipality’s employees.
Nevertheless, if the phrase “responsible to council” meant that the mayor must do whatever the
council determines concerning the administration of the city affairs, the mayor-council
government would not be distinct from other forms of municipal government. “It is well-settled
that statutes dealing with the same subject matter are in pari materia and must be construed
together, if possible, to produce a single, harmonious result.” Grant v. City of Folly Beach, 346
S.C. 74, 79, 551 S.E.2d 229, 231 (2001). Furthermore, the interpretation of a term set forth in a
statute should support the purpose of the statute and should not lead to an absurd result. S.C.
Coastal Council v. S.C. State Ethics Comm’n, 306 S.C. 41, 410 S.E.2d 245 (1991).
Respondent’s interpretation of the phrase “responsible to council” would lead to an absurd result
in that it would pointlessly render the statutory grant of power to the mayor to appoint or
terminate municipal employees meaningless and would eliminate the distinctions inherent in the
mayor-council form of government. In other words, though council could not discharge the
mayor, under Respondent’s theory, council could simply by-pass the mayor if he did not
administer the government in accordance to their wishes.
The council does have the responsibility to insure that the town’s administration is
properly conducted. S.C. Code Ann. § 5-9-40 (1976 & Supp. 2003) provides, in part, that:
The council may establish municipal departments, offices, and agencies in
addition to those created by Chapters 1 through 17 and may prescribe the
functions of all departments, offices and agencies, except that no function
assigned by law to a particular department, office or agency may be
discontinued or assigned to any other agency.
Furthermore, the council can investigate any department of its government pursuant to S.C.
Code § 5-7-100 (1976). However, the statutes do not extend to council the executive authority
of dismissing individual employees pursuant to that responsibility. Furthermore, though I am
unable to find a court decision directly addressing whether a municipal council in a mayor-council form of government can independently remove an employee, there are numerous cases
addressing the authority of the mayor to remove an employee. Though not directly on point,
those cases offer insight into the removal authority of a mayor in a mayor-council form of
government. In Miller v. Town of Batesburg, 273 S.C. 434, 257 S.E.2d 159 (1979), the South
Carolina Supreme Court held that a mayor is “vested” under Section 5-9-30 with the power to
remove all municipal employees subject to limited exceptions.
Additionally, the mayor-council
form of government is often called the "strong mayor" form of government. The Utah Supreme
Court held in Biddle v. Washington Terrace City, 993 P.2d 875, 879 (1999), that “[t]he major
difference in the strong mayor form is a formal separation of powers: the executive power
resides with the mayor and the legislative powers with the council.” Therefore, I find that the
Council does not have the authority to terminate the employment of Edwards.
Respondent also argues that the Council's authority to approve the appointment of
Edwards in this case reflects that Council has the authority to remove him from employment. “It
is the general rule that a municipal body or official having the power to appoint an officer or
subordinate also has the power to remove the appointee at pleasure in the absence of any law
restricting the power of removal.” State ex rel. Early v. Wunderlich, 144 Minn. 368, 175 N.W.
677, 678 (1920). However, a requirement that a person must be approved by council does not
make it the appointing authority. LaPeters v. City of Cedar Rapids, Iowa, 263 N.W.2d 734
(Iowa 1978). “Consequently, although the Mayor must appoint employees with the City
Council's consent, it is the Mayor who possesses the power of appointment. Similarly, it is the
Mayor who wields the power of removal. . . .” Waters v. City of Glen Cove, 181 A.D.2d 783,
783, 580 N.Y.S.2d 796, 796 (1992).
4.Based upon the above reasoning, I find that Respondent Town of Hollywood
failed to pay Kenneth Edwards’ wages for the work he performed from October 1, 2003 to the
beginning of January 2004 until his resignation. I, nevertheless, find that no fine is warranted in
this case. Inherent in and fundamental to the powers of an Administrative Law Judge, as the
trier of fact in contested cases under the Administrative Procedures Act, is the authority to
decide the appropriate sanction when such is disputed based on the facts presented at the
contested case hearing. Walker v. South Carolina ABC Comm’n, 305 S.C. 209, 407 S.E.2d 633
(1991). I find that Council’s position that it could terminate Edwards was a reasonably
debatable position. Section 5-9-30(1) and the above case law clearly establish that the Mayor
has the authority to dismiss a Town of Hollywood employee and that he has the authority to do
so without the Hollywood Town Council. Nevertheless, the question here is does he have the
sole authority to dismiss a Town of Hollywood employee or does the Hollywood Town Council
also possess the authority to dismiss employees pursuant to its oversight of the Mayor. Though I
find that the Mayor possesses the sole authority to terminate the employment of Edwards, he is
also “responsible” to the Council for the administration of the affairs of the municipality. How
that responsibility to the Council is imposed is a thorny and unanswered question by our Courts.
This analysis is made more difficult by the Mayor’s obvious disregard for the wishes of the
Hollywood Town Council in this case.
Furthermore, the Department’s investigator was never informed that the Mayor Pro Tem
did not sign the checks because the Council had terminated Kenneth Edwards until the day of the
hearing into this matter. This deception is even more disconcerting in light of the Mayor’s
actions in this case. The Mayor was a proponent of Edwards continuing in his job and ultimately
continuing to receive his wages. As set forth above, in his letter to the Department, the Mayor
stated that: “It is beyond my comprehension why the Mayor Pro Tem did not sign his payroll
checks on the dates in question.” At the time he made that statement, both he and Edwards
clearly knew the Mayor Pro Tem did not sign the checks because the Council had terminated
Edwards’ employment. In fact, both were at the meeting in which the Hollywood Town Council
voted to dismiss Edwards. That meeting was held before Edwards worked the hours
precipitating the disputed wages in this case.
5.Therefore, under the circumstances of this case, I reluctantly find that Respondent
violated of Section 41-10-40(D).
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that no fine shall be imposed by the Department against Respondent for its
violations of S.C. Code Ann. § 41-10-40(D) (1986 & Supp. 2003).
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
March 2, 2005
Columbia, South Carolina |