A hearing was conducted on March 8, 2006 at the Court in Columbia, South Carolina. Both the Petitioner and Respondent were present and were represented by legal counsel. Testifying at the hearing was the Petitioner and Larissa Huff, an employee of Respondent. Also, during the hearing there was admitted into evidence pages 1 through 100 of Respondent’s administrative file in this matter and a one-page document containing definitions of "Public Service,” “Previously Withdrawn Service” and “Nonqualified Service.”

The Court has jurisdiction to conduct this hearing de novo and issue a final decision pursuant to the South Carolina Retirement Systems Claims Procedures Act, specifically S.C. Code Ann. § 9-21-60 (Supp. 2005). Based upon the testimony and other evidence of record, this Court affirms Respondent’s final agency determination that the cost for Petitioner to purchase the five years of Nonqualified Service is $155,750.00.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the haring and closely passed upon their credibility, taking into consideration the burden of persuasion of the parties, I make the following findings of fact by a preponderance of the evidence:

1. Notice of the date, time, place and nature of the hearing was timely given to the parties.

2. The City of Union and the County of Union participate as employers in the Retirement System.

3. As a condition of his employment with the City of Union, Petitioner is a member of the Retirement System. As of August 12, 2004, Petitioner had less than five years of earned service in the Retirement System.

Petitioner’s South Carolina Public Service (1982-1991)

4. For the periods of June 1, 1982 through June 30, 1982, July 1, 1982 through May 31, 1986, January 2, 1987 through June 30, 1987 and July 1, 1987 through January 2, 1991, Petitioner made contributions to the Retirement System while employed with Union County and the City of Union. Petitioner established earned service credit for 8 years, 0 months, and 2 days for these periods.

5. On April 5, 1991, Petitioner withdrew all of the contributions that he had made to the Retirement System during his 8 years, 0 months and 2 days of earned service. This is referred to in this Order as Petitioner’s South Carolina Withdrawn Service (SCWS).

Petitioner’s North Carolina Public Service (1991-1997)

6. From April 2, 1991 through November 18, 1997, Petitioner was employed as the Administrator of the Town of Long View, North Carolina. His salary was $43,596.43 when he left his employment there on November 18, 1997.

7. Petitioner made contributions to the North Carolina Local Governmental Employees’ Retirement System from October 14, 1991 through November 13, 1997. He established Public Service credit in that system for 6 years, 7 months and 12 days. In the fall of 2004, Petitioner withdrew his retirement account balances with the North Carolina Local Governmental Employees’ Retirement System preparatory to transferring them into Individual Retirement Accounts and with South Carolina’s retirement system.

Petitioner’s South Carolina Public Service (2000-2004)

8. In 2000, Petitioner was elected mayor of the City of Union. On August 12, 2004, his salary as mayor was $6,610.20.

9. Sometime subsequent to October 21, 2004, but prior to January 10, 2005, the City of Union changed its form of government from a part-time mayor to a full-time mayor. Petitioner was appointed to the full-time mayor position and his salary was increased from $6,610.20 to $89,000.00 on January 10, 2005. Petitioner continues to serve in that capacity.

Petitioner’s Requests to Respondent to purchase credit for his SCWS and his North Carolina Public Service (NCPS)

10. On August 20, 2004, Petitioner contacted Respondent to request information on the costs to purchase his SCWS and his NCPS.

11. On October 4, 2004, Respondent informed Petitioner that he could purchase his SCWS upon payment of $18,995.95 and that he had until April 2, 2005 to purchase his SCWS at this cost.

12. On October 18, 2004, Respondent informed Petitioner that he could purchase the NCPS upon payment $35,562.91. This amount was based upon Petitioner’s highest fiscal year salary earned in South Carolina between 1982 through 1991 and calculated with the assumption that Petitioner would purchase his SCWS.

13. On October 21, 2004, Petitioner notified Respondent that he wanted to purchase his NCPS and five years of NQS (service time not worked). Petitioner further notified Respondent that he would purchase his SCWS at a later date.

14. On October 28, 2004, Respondent notified Petitioner that he could purchase his NCPS upon payment of $6,998.03 based upon his then current salary of $6,610.20. The letter further stated “[Y]ou are not eligible to purchase nonqualified service until you have reached 5 years of earned service.” The service in North Carolina constituted “purchased service,” not earned service.^[2] 15. No invoice was provided to Petitioner to purchase the NQS since Petitioner did not have the requisite five years of earned service, nor would the NCPS (after purchase) count toward the earned service requirement.

16. On November 24, 2004, Petitioner paid $6,998.03 to Respondent to purchase the NCPS.

17. On November 29, 2004, Respondent mistakenly advised Petitioner that subsequent to the purchase of the NCPS, he had met the requirement for five years of earned service and that Petitioner could request an invoice to purchase the five years of NQS.

18. However, on December 8, 2004, Respondent correctly advised Petitioner that he must have five years of earned service in his account before he could purchase the NQS and that the purchase of the NCPS did not qualify as earned service. At that time, Petitioner told Respondent that he intended to purchase the SCWS and after its purchase he would submit a request to purchase the NQS.

19. On December 14, 2004, Respondent told Petitioner that he could purchase a portion of his SCWS sufficient to satisfy the earned service requirement needed to purchase the NQS.

20. On December 15, 2004, Petitioner wrote Respondent requesting it initiate a rollover of funds from his Individual Retirement Account into the Retirement System sufficient to purchase his SCWS.

21. Respondent advised Petitioner by letter dated December 29, 2004 that it had received his request for a transfer of funds from his Individual Retirement Account to purchase his SCWS but that additional documentation was needed before it could proceed with the transfer. Petitioner did not respond to the letter nor provide the requested documentation to Respondent prior to his salary increase on January 10, 2005 from $6,610.20 to $89,000.00.

22. On March 17, 2005, Petitioner commissioned a rollover of $18,995.95 from his Individual Retirement Account with Wachovia Securities to purchase the SCWS (8 years, 0 months, and 2 days). After this purchase was consummated, Petitioner had exceeded five years of earned service in his account and was eligible to purchase the NQS.

23. When Wachovia Securities made the transfer of funds from Petitioner’s Individual Retirement Account to the Retirement System, it erroneously overpaid $59,655.16. On April 7, 2005, Wachovia Securities notified Respondent of the erroneous overpayment, and on April 8, 2005, Respondent informed Wachovia Securities that it would return the funds within two weeks. Respondent returned the funds on April 21, 2005.

24. On May 6, 2005, Petitioner requested an invoice to purchase the NQS.

25. Respondent notified Petitioner on May 25, 2005 that based upon his present salary of $89,000.00, he was authorized to purchase five years of NQS upon payment of $155,750.00.

26. Petitioner appealed the May 25, 2005 determination by Respondent. On August 12,

2005, the Hon. Peggy Boykin, CPA, and Director of Respondent, issued a written decision holding that the invoice issued on May 25, 2005 setting a cost of $155,750 to purchase the NQS

was correct.

27. On September 10, 2005, Petitioner filed a request for a contested case hearing.

DISCUSSION

Base Salary

The issue in this case concerns the amount Petitioner must pay to purchase five years of NQS in the Retirement System. Petitioner maintains that the cost should be based upon his former salary of $34,091.98 (his career highest fiscal year salary while employed between 1982 and 1991), instead of $155,750.00, which is based upon his salary of $89,000.00 when he made the request.

Petitioner paid $6,998.03 to Respondent on November 24, 2004 to purchase his NCPS (6 years, 7 months and 12 days); this amount was determined based upon his salary of $6,610.20 at the date of the request. On March 17, 2005, Petitioner paid $18,995.95 to purchase his SCWS (8 years, 0 months, and 2 days). Respondent had stated in its October 4, 2004 correspondence that Petitioner had until April 2, 2005 to purchase his SCWS at this cost. After Petitioner purchased the SCWS, for the first time he had the requisite five years or more of earned service in his Retirement System account and was eligible to purchase the NQS under S.C. Code Ann. § 9-1-1140(E), (J) (Supp. 2005).

On May 6, 2005, almost four months after his salary had increased from $6,610.20 to $89,000, Petitioner made the request to purchase the NQS. The cost for purchasing NQS in this State is 35% of the greater of a member’s current salary or the member’s career highest fiscal year salary. S.C. Code Ann. § 9-1-1140(E) (Supp. 2005). Since Petitioner’s then current salary of $89,000 was greater than his career highest fiscal year salary of $34,091.98, Respondent was correct in its determination that the cost to purchase the five years of NQS was $155,750.

Equitable Estoppel

Petitioner asserts that he did not receive proper advice from Respondent. Furthermore, he argues that he was ready, willing and able to purchase the NQS prior to his salary increase and would have done so if he had been properly advised. Accordingly, he argues that Respondent should be estopped from using his salary of $89,000 as a base to determine the purchase cost of the NQS.

As the party asserting estoppel, Petitioner bears the burden of proof. Davis v. Sellers, 229 S.C. 81, 91 S.E.2d 885 (1956). Based upon the facts herein and the evidence in the record, Petitioner has not sustained his burden of proof.

Our Supreme Court has stated that, as a general rule, estoppel does not lie against the government to prevent the due exercise of its police powers or to thwart the application of public policy. Grant v. City of Folly Beach, 346 S.C. 74, 551 S.E.2d 229, 232 (2001) (citing South Carolina Dep't of Social Services v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980)). However, this does not mean that estoppel cannot apply against a government agency. Id. at 232 (citing Landing Dev. Corp. v. City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423 (1985)). To prove estoppel against the government, the relying party must prove: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question, (2) justifiable reliance upon the government's conduct, and (3) a prejudicial change in position. Id. (citing Midlands Utility, Inc. v. South Carolina Dep't of Health and Envtl. Control, 298 S.C. 66, 378 S.E.2d 256 (1989)).

A governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of their authority, but the government cannot be estopped by the unauthorized or erroneous conduct or statements of its officers which have been relied on by a third party to his detriment. Goodwine v. Dorchester Dept. of Social Services, 336 S.C. 413, 519 S.E.2d 116 (Ct. App. 1999) (citing Service Mgmt. Inc. v. State Health & Human Servs. Fin. Comm’n, 298 S.C. 234, 379 S.E.2d 442 (Ct. App. 1989)); see also Service Mgmt, Inc., 379 S.E.2d at 444 (nursing home was required to repay Medicaid funds erroneously calculated by a state employee who had no authority to change the benefit amount); Berkeley Elec. Co-op, Inc. v. Town of Mount Pleasant, 308 S.C. 205, 417 S.E.2d 579 (1992) (Town of Mount Pleasant not estopped from denying validity of a franchise agreement where the franchise agreement was entered into in violation of statute).

In South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (Ct. App. 1987), appeal dismissed 294 S.C. 80, 362 S.E.2d 646 (1987), the South Carolina Court of Appeals held that a Coastal Council employee did not have authority to represent to the Vogels that they did not need a permit to build a deck on their beach house seaward of the critical line. Construction of the deck in the critical area of the primary oceanfront sand dune without a permit constituted a violation of the Coastal Zone Management Act. Id. at 188. The court held that the Council could not be estopped by the erroneous and unauthorized actions of its employee from ordering the removal of the illegally-constructed deck.

Similarly, the South Carolina Court of Appeals held that the City of Rock Hill could not be estopped where a zoning administrator had approved a parking area in violation of a city zoning ordinance. McCrowey v. Zoning Bd. of Adjustment of City of Rock Hill, 360 S.C. 301, 599 S.E.2d 617 (Ct. App. 2004). The court held that the zoning administrator lacked authority to alter or waive the zoning ordinance. Id. at 619-620.

On November 29, 2004, a representative of Respondent mistakenly advised Petitioner that subsequent to the purchase of the NCPS on November 24, 2004, he could request an invoice to purchase five years of NQS. This advice was erroneous and plainly contravened the statutory requirements for purchasing NQS. S.C. Code Ann. § 9-1-1140(E), (J) (Supp. 2005). Thus, Petitioner’s purchase on November 24, 2004 of the NCPS could not as a matter of law increase the amount of earned service in Petitioner’s Retirement System account.

An unauthorized statement made by an employee of Respondent is not sufficient to estop Respondent from invoicing Petitioner with the correct purchase cost for the NQS. Like the Coastal Council employee in Vogel, Respondent’s employee lacked the authority to waive or alter statutory requirements. State law requires that Petitioner have five years of earned service in his Retirement System account before he is eligible to purchase NQS. Neither Respondent nor any of its employees has the authority to change any statutory requirement.

Furthermore, Petitioner could not have justifiably relied on the misstatements by Respondent’s employee. Petitioner had earlier been advised in writing on October 28, 2004, that he needed to have five years of earned service before he would be eligible to purchase NQS. Significantly, on December 8, 2004, a mere nine days after Respondent’s employee gave the erroneous advice, another employee of Respondent clearly informed Petitioner that he must purchase his SCWS before he would be eligible to purchase the NQS. At that time, Petitioner indicated that he would purchase his SCWS and thereafter submit his request to purchase the NQS. This information was given to Petitioner over a month before his salary increased to $89,000 on January 10, 2005.

In any event, Petitioner had the means to determine if statements made to him by Respondent’s representative were accurate. “Everyone is presumed to have knowledge of the law and must exercise reasonable care to protect his interests.” In re Estate of Holden, 343 S.C. 267, 539 S.E.2d 703 (2000), quoting Smothers v. U.S. Fidelity and Guar. Co., 322 S.C. 207, 210-211, 470 S.E.2d 858 (Ct. App. 1996).

Moreover, Petitioner’s argument that he had funds available to purchase the SCWS and the NQS prior to his salary increase is irrelevant. He did not take the necessary steps to purchase the SCWS and the NQS prior to his salary increase on January 10, 2005, and even if he had, his retirement account did not have the required earned service until the purchase of the SCWS on March 17, 2005, over two months after his salary had increased.

Petitioner also asserts that, but for the Retirement System’s delay, he would have purchased his SCWS and the NQS before his salary increased to $89,000 on January 10, 2005. The record, however, does not show an unreasonable delay on the part of Respondent.

Petitioner initially requested the cost to purchase the SCWS and the NCPS on August 20, 2004. The Retirement System issued its invoice for the SCWS on October 4, 2004. This invoice was valid until April 2, 2005. Petitioner could have purchased his SCWS at any time between October 4, 2004 and April 2, 2005. He did not purchase his SCWS until March 17, 2005. There is no evidence to show that Respondent unreasonably delayed Petitioner in purchasing his SCWS or that the processing time for the purchase was unreasonable.

The Retirement System issued its first invoice for the NCPS on October 18, 2004 in response to Petitioner’s August 20, 2004 request. Petitioner did not elect to utilize this invoice. By letter dated October 21, 2004, Petitioner stated that he wanted to delay purchasing the SCWS so that he could purchase the NCPS and the NQS at his lower current salary of $6,610.20. Exactly one week later, on October 28, 2004, Respondent issued its second invoice for the NCPS and advised Petitioner that he did not have the five years of earned service needed to become eligible to purchase the NQS.

On November 24, 2004, Petitioner elected to purchase the NCPS of 6 years, 7 months and 12 days pursuant to the cost set forth in Respondent’s invoice dated October 28, 2004. There was no unreasonable delay by Respondent in the transaction involving the purchase of the NCPS by Petitioner.

Although Petitioner received erroneous advice on November 29, 2004, he received correct information from Respondent more than a month before his salary increased to $89,000 on January 10, 2005. Thus, Respondent did not unreasonably delay Petitioner’s purchase of the SCWS and the NQS.

Petitioner also asserts that the March, 2005 overpayment sent by Wachovia Securities to Respondent for the SCWS purchase, which Respondent held for several weeks before returning, shows that he was ready, willing and able to purchase the NQS at that time. There is no evidence, however, that the overpayment was to be used to purchase the NQS. Furthermore, there is no evidence that Respondent’s acceptance of the overpayment delayed Petitioner’s purchase of his SCWS or the NQS. Moreover, because the March, 2005 overpayment occurred after Petitioner’s salary increase, it does not show that Petitioner was ready, willing and able to consummate his SCWS and NQS purchases before his salary increased on January 10, 2005. The overpayment did not in any way prevent Petitioner from purchasing his SCWS or from obtaining an invoice for the NQS before January 10, 2005.

Based on the foregoing, Petitioner has failed to sustain his burden of showing that Respondent should be estopped to require the payment of $ 155,750 for Petitioner’s purchase of five years of NQS.

May 25, 2005 Invoice for the Nonqualified Service

On May 6, 2005, Petitioner requested an invoice for the NQS. At that time he was eligible to purchase it because he had more than five years of earned service in his Retirement System account. Accordingly, Respondent issued a service purchase invoice to Petitioner for the NQS. Pursuant to S.C. Code Ann. § 9-1-1140(E), Respondent correctly issued the invoice for $155,750 based on Petitioner’s salary of $89,000 at the time of the invoice request. Under § 9-1-1140(E), the cost is 35% of $89,000 for each year of NQS purchased: .35 X $89,000 = $31,150. Because Petitioner wishes to purchase five years of NQS, the cost is $31,150 X 5 or $155,750.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, Discussion and the evidence, the Court concludes, as a matter of law, the following:

General

1. The South Carolina Retirement Systems Claims Procedures Act provides the exclusive means for resolution of disputes and claims with Respondent. S.C. Code Ann. § 9-21-30 (Supp. 2005). A member may ask the Director to review an initial decision that is unfavorable. The Director, or a person designated by the Director, may conduct a conference concerning the claim prior to the issuance of a final agency determination. The final agency determination must be in writing if it is adverse to the claimant. S.C. Code Ann. § 9-21-50 (Supp. 2005). The claimant may seek review of the final agency determination by requesting a contested case hearing before the Administrative Law Court. S.C. Code Ann. § 9-21-60 (Supp. 2005).

2. The Administrative Law Court assigns each filed case to an Administrative Law Judge, who hears the case de novo in accordance with the rules of procedure of the Administrative Law Court. S.C. Code Ann. § 9-21-60 (Supp. 2005); S.C. Code Ann. § 1-23-600 (Supp. 2005).

3. The standard of proof in a contested case hearing before the ALC is a preponderance of the evidence.  See Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).

4. An agency decision must be reached utilizing reasoned judgment and must be based upon adequate determining principles and a rational basis. See Deese v. South Carolina State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).

5. The trier of fact must weigh and pass upon the credibility of the evidence presented. See S.C. Cable Television Ass’n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982), overruled on other grounds by Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004).

Retirement System Provisions

6. An “active member” of the Retirement System is an employee who is compensated by an employer participating in the System and who makes regular retirement contributions to the System. S.C. Code Ann. § 9-1-10(2) (Supp. 2005). The City of Union is a participating employer, and Petitioner has made regular contributions to the Retirement System.

7. “Retirement system” or “system” means the South Carolina Retirement System established under S.C. Code Ann. § 9-1-20. S.C. Code Ann. § 9-1-10(28) (Supp. 2005).

8. “Earned service” means: (a) paid employment as a teacher or employee of an employer participating in the system where the teacher or employee makes regular retirement contributions to the system; or (b) service rendered while participating in the State Optional Retirement Program, the Optional Retirement Program for Teachers and School Administrators, or the Optional Retirement Program for Publicly Supported Four-Year and Postgraduate Institutions of Higher Education that has been purchased pursuant to S.C. Code Ann. § 9-1-1140(F); or (c) service earned as a participant in the System, the S.C. Police Officers Retirement System, the Retirement System for Members of the General Assembly, or the Retirement System for Judges and Solicitors that is transferred to or purchased in the System. S.C. Code Ann. § 9-1-10(9) (Supp. 2005).

9. Service credit purchased under S.C. Code Ann. § 9-1-1140 (Supp. 2005) is not “earned service” and does not count toward the required five or more years of earned service necessary for benefit eligibility except: (1) earned service previously withdrawn and reestablished, (2) service rendered while participating in the State Optional Retirement Program, the Optional Retirement Program for Teachers and School Administrators, or the Optional Retirement Program for Publicly Supported Four-Year and Postgraduate Institutions of Higher Education that has been purchased pursuant to § 9-1-1140(F); or (3) service earned as a participant in the System, the S.C. Police Officers Retirement System, the Retirement System for Members of the General Assembly, or the Retirement System for Judges and Solicitors that is transferred to or purchased in the System. S.C. Code Ann. § 9-1-1140(J) (Supp. 2005).

10. An active member may establish service credit for any period of paid public service, which is service as an employee of the government of the United States, a state or political subdivision of the United States, or an agency or instrumentality of any of these. The cost to purchase Public Service is sixteen percent of the member’s current salary or career highest fiscal year salary, whichever is greater, for each year of credit purchased. S.C. Code Ann. § 9-1-1140(A) (Supp. 2005); S.C. Code Ann. § 9-1-10(23) (Supp. 2005).

11. An active member who has five or more years of earned service credit may establish up to five years of Nonqualified Service. The cost to purchase Nonqualified Service is thirty-five percent of the member’s current salary or career highest fiscal year salary, whichever is greater, for each year of credit purchased. S.C. Code Ann. § 9-1-1140(E) (Supp. 2005).

12. An active member who previously withdrew contributions from the system may reestablish the service credited to the member at the time of the withdrawal by repaying the amount of the contributions previously withdrawn plus regular interest from the date of the withdrawal to the date of repayment to the system. S.C. Code Ann. § 9-1-1140(G) (Supp. 2005).

13. The Retirement System is a creature of statute and, as such, can only exercise that authority expressly delegated to it or delegated by necessary implication. See City of Rock Hill v. South Carolina Dept. of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327
(1990).

14. The cardinal rule of statutory construction is that the legislative intent must prevail. Gardner v. Biggart, 308 S.C. 331, 417 S.E.2d 858 (1992). In ascertaining the legislative intent of a statute, the courts look to the clear and unambiguous language of the statute. Defender Properties, Inc. v. Doby, 307 S.C. 336, 415 S.E.2d 383 (1992). When such terms are clear and unambiguous, there is no room for construction and courts are required to apply them according to their literal meaning. Citizens for Lee County, Inc. v. Lee County, 308 S.C. 23, 416 S.E.2d 641, 644 (1992).

Equitable Estoppel

15. As a general rule, estoppel does not lie against the government to prevent the due exercise of its police powers or to thwart the application of public policy. Grant v. City of Folly Beach, 346 S.C. 74, 551 S.E.2d 229 (2001); South Carolina Dep't of Social Services v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980). This does not mean that estoppel cannot apply against a government agency. Id. at 232. (citing Landing Dev. Corp. v. City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423 (1985)).

16. To prove estoppel against the government, the relying party must prove (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question, (2) justifiable reliance upon the government's conduct, and (3) a prejudicial change in position. Grant, 551 S.E.2d at 232. (citing Midlands Utility, Inc. v. South Carolina Dep't of Health and Envtl. Control, 298 S.C. 66, 378 S.E.2d 256 (1989)).

17. A governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of their authority, but the government cannot be estopped by the unauthorized or erroneous conduct or statements of its officers which have been relied on by a third party to his detriment. Goodwine v. Dorchester Dept. of Social Services, 336 S.C. 413, 519 S.E.2d 116 (Ct. App. 1999) (citing Service Mgmt. Inc. v. State Health & Human Servs. Fin. Comm’n, 298 S.C. 234, 379 S.E.2d 442 (Ct. App. 1989).

18. As the party asserting estoppel, Petitioner bears the burden of proving estoppel against Respondent. Davis v. Sellers, 229 S.C. 81, 91 S.E.2d 885 (1956).

19. Respondent cannot be estopped based on unauthorized statements by one of its employees. See South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187 (Ct. App. 1987), appeal dismissed 294 S.C. 80, 362 S.E.2d 646 (1987).

20. Petitioner’s delay in purchasing his SCWS until after his salary had increased to $89,000 was not the result of justifiable reliance on erroneous advice from Respondent’s employee. Petitioner had previously received correct written advice that he needed to have five years of earned service before he would be eligible to purchase Nonqualified Service, and he received correct advice from another employee of Respondent nine days after the erroneous advice. After receiving the correct advice, he had over a month before his salary increased to purchase his SCWS. In any event, Petitioner was presumed to have knowledge of the law. See In re Estate of Holden, 343 S.C. 267, 539 S.E.2d 703 (2000). Therefore, he had the means to determine the accuracy of any statements made to him by Respondent’s employees.

21. Respondent did not unreasonably delay Petitioner’s purchase of his SCWS and NQS.

22. Petitioner failed to sustain his burden of showing that Respondent should be estopped to require the payment of $ 155,750 for Petitioner’s purchase of five years of NQS.

23. Earned service previously withdrawn and reestablished in the Retirement System constitutes earned service under S.C. Code Ann. § 9-1-1140(J) (Supp. 2005). Prior to March 17, 2005, the date Petitioner remitted payment to purchase 8 years and 2 days of his SCWS, Petitioner had less than the five years of earned service required for eligibility to purchase NQS. S.C. Code Ann. § 9-1-1140(E), (J) (Supp. 2005). Thus, Petitioner did not become eligible to purchase NQS until after his salary had increased to $89,000 on January 10, 2005.

24. Respondent properly determined that the cost for Petitioner to establish five years of NQS was $155,750 based on his salary of $89,000 on May 25, 2005.

ORDER

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Petitioner’s cost to purchase the Nonqualified Service credit is $155,750.

AND IT IS SO ORDERED.

____________________________________

August 7, 2006 Marvin F. Kittrell

Columbia, South Carolina Chief Administrative Law Judge