South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
James “Cal” Bell, Othella Bernard, Katherina Bower, Linda M.W. Bratton, Ann T. Bridges, Richard M. Cobb as Personal Representative of the Estate of Rance C. Cobb, Jeannie B. Croxton, et al., vs.S.C. Department of Corrections and Palmetto Unified School District No. 1,

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellants:
James “Cal” Bell, Othella Bernard, Katherina Bower, Linda M.W. Bratton, Ann T. Bridges, Richard M. Cobb as Personal Representative of the Estate of Rance C. Cobb, Jeannie B. Croxton, et al.,

Respondents:
S.C. Department of Corrections and Palmetto Unified School District No. 1,
 
DOCKET NUMBER:
09-ALJ-30-0103-AP

APPEARANCES:
 

ORDERS:

ORDER

    

 

I.          SYNOPSIS OF THE COURT’S ORDER

 

            The Appellants in the above captioned matter filed a consolidated appeal with this Court in which they challenged the Final Decision [“Decision”] issued by the State Employee Grievance Committee [“Committee”] on February 18, 2009.  The Appellants, 20 in all,[1] are current and former certified educators who are currently employed or were at one time employed by the South Carolina Department of Corrections [“the Department”] within its Division of Education, also known as the Palmetto Unified School District No. 1 [“PUSD”].

            The Appellants argued to this Court “that the Final Decision issued by the [Committee] dated February 18, 2009 must be reversed and Appellants awarded reinstatement to employment with back pay and benefits. [2]

            By its Decision, the Committee denied the Appellants’ collective appeal of the Department’s decisions denying each of the grievances filed by the Appellants.  In their respective individual grievances, all of which were identical in format and substance, the Appellants challenged their separation from employment as a consequence of a reduction-in-force [“RIF”] implemented by the Department effective June 1, 2003.[3]   Thus, by its Decision, the Committee rejected the various challenges to the Department’s June 1, 2003 RIF collectively presented by the Appellants, and,  consequentially, the Committee affirmed the Department’s denial of each of the Appellants’ grievances.

Based upon the record on appeal submitted to the Court by the State Office of Human Resources [“OHR”], the principle briefs filed by counsel, the points articulated by counsel during oral argument, the supplemental materials filed by counsel after oral argument, and the applicable law and regulations, the Court DENIES the collective appeal filed by the Appellants and AFFIRMS the Decision issued by the Committee in the Department’s favor.


 

II.        PROCEDURAL HISTORY

 

A.        GRIEVANCES FILED BY THE 20 APPELLANTS, THE DEPARTMENT’S DENIAL OF THE GRIEVANCES, AND THE DECISION BY THE STATE HUMAN RESOURCES DIRECTOR TO AFFIRM THE DEPARTMENT’S DENIAL OF THE GRIEVANCES

 

            On or about June 13, 2003, each of the 20 Appellants timely submitted grievances with the Department regarding their separation from employment as a consequence of a RIF implemented by the Department effective June 1, 2003, and, by their grievances, each of the 20 Appellants challenged the RIF.  The Department’s responsible officials denied each of the 20 grievances by determining that no material issue of fact existed regarding the purported inconsistent or improper application of the Department’s RIF plan or policy.  Accordingly, the Department did not conduct hearings regarding any of the Appellants’ grievances.

            Each of the 20 Appellants appealed the Department’s denial of their grievances to the State Human Resources Director, and the State Human Resources Director affirmed the Department’s denial of these grievances.  Each of the 20 Appellants moved the State Human Resources Director to reconsider his decision, and the State Human Resources Director denied the Appellants’ respective motions for reconsideration.

B.        CONSOLIDATED COMPLAINT AND PETITION FOR JUDICIAL REVIEW FILED IN CIRCUIT COURT BY THE 20 APPELLANTS

 

            Subsequent to the final decisions issued by the State Human Resources Director, the Appellants filed a consolidated complaint and petition for judicial review in the circuit court, specifically the Court of Common Pleas for Richland County. (R. pp. 29 – 39).   The circuit court, pursuant to Ross v. Med. Univ. of S.C., 453 S.E.2d 880 (S.C. 1995), directed the Department to provide responses to the Appellants’ discovery requests and to make agency officials available for deposition. (R. pp. 2112 – 18).  In accordance with the circuit court’s directive, Appellants’ counsel deposed agency officials in December 2005 and June 2006.

            The circuit court heard argument regarding the Appellants’ consolidated Petition for Judicial Review on December 11, 2006 (R. pp. 2320 - 2357) and, by order issued January 10, 2007 (R. pp. 40 – 44), it ruled that material issues of fact existed regarding the Appellants’ contention that the Department inconsistently or improperly applied its RIF policy and plan in 2003.  Consequentially, the circuit court remanded this matter back to OHR for disposition by hearing before the Committee. 

C.        THE DEPARTMENT’S APPEAL OF THE CIRCUIT COURT’S ORDER TO THE COURT OF APPEALS

 

The Department appealed the circuit court’s January 10, 2007 order to the Court of Appeals, and, by order issued May 14, 2008, the Court of Appeals dismissed the Department’s appeal. (R. pp. 45 – 47).  By dismissing the Department’s appeal, the Court of Appeals animated the circuit court’s order which remanded this matter back to OHR for disposition by hearing before the Committee.

D.        REMAND OF APPELLANTS’ GRIEVANCES BACK TO OHR, THE COMMITTEE’S CONSOLIDATED HEARING REGARDING THE APPELLANTS’ CLAIMS, AND THE COMMITTEE’S ADJUDICATION OF THE APPELLANTS’ CLAIMS

 

            By letter dated June 4, 2008, OHR directed the Department to process each of the Appellants’ original 2003 grievances in accordance with its grievance policy within 45 days. (R. pp. 48 – 49).  On July 23, 2008, after the Department did not meet the 45 day deadline established by OHR in its June 4, 2008 letter, the Appellants timely submitted this matter to OHR for disposition in accordance with the circuit court’s January 10, 2007 order.

            OHR, in October 2008, detailed the adjudication of the Appellants’ collective appeal to the Committee and, by their October 14, 2008 “Statement of Grounds on Appeal,” the Appellants articulated their precise collective and individual challenges to the Department’s 2003 RIF. (R. pp. 2695 – 99). 

The Committee, after conducting hearing proceedings on November 5, 6, 7, 10, and 17, 2008; December 15 and 18, 2008; and January 22, 26, and 29, 2009 (R. pp. 50 – 1453), issued its Final Decision in this matter on February 18, 2009. (R. pp. 8 – 17).  By its Final Decision, the Committee denied the relief demanded by the Appellants in their appeal and upheld the RIF implemented by the Department effective June 1, 2003.

E.        THE APPELLANTS’ APPEAL OF THE COMMITTEE’S FINAL DECISION TO THIS COURT

 

            The Appellants timely filed their collective Notice of Appeal with the Administrative Law Court [“ALC”] on March 10, 2009, and this Court assumed jurisdiction of this appeal by an order dated and filed May 21, 2009.   OHR filed the Record on Appeal on June 24, 2009.

The Appellants filed their principle brief on July 17, 2009, and the Department filed its principle brief on October 7, 2009.  The Appellants did not file a reply brief.

            This Court, by notice dated October 19, 2009, scheduled oral argument for October 28, 2009, and the Court entertained oral argument as scheduled.  W. Allen Nickles, Jr., Esquire, and Dona Guffey, Esquire, appeared on behalf of the Appellants, and Lake E. Summers, Esquire, appeared on behalf of the Department.[4]

            At the conclusion of oral argument, the Court directed the parties to file supplemental materials, and the parties filed their respective supplemental briefs – in the format prescribed by the Court during the oral argument – on November 17, 2009.

            By letter filed on November 18, 2009, the Appellants rebutted any assertion advanced by the Department in its supplemental brief that the Appellants had “waived” any equal protection claim during the argument they articulated to the circuit court on December 11, 2006 when the circuit court considered the Appellants’ petition for judicial review.[5]

            On November 19, 2009, the Department filed its objection to the entirety of the materials designated as “Attachment 1,” which the Appellants submitted in support of their supplemental brief, as well as the portion of the Appellants’ supplemental brief associated with the materials designated as “Attachment 1.”  Along with its objection to “Attachment 1” and the portions of the Appellants’ supplemental brief associated with “Attachment 1,” the Department concurrently moved to strike these materials and the allied portions from the Appellants’ supplemental brief.  On November 20, 2009, the Appellants filed their memorandum in opposition to the Department’s objections to and motion to strike “Attachment 1.[6]

III.       APPLICABLE LEGAL STANDARD

 

            The Appellants’ appeal from the Committee’s February 18, 2009 Final Decision is before this Court pursuant to S.C. Code Ann. §§ 1-23-600(D) and 8-17-340(F).  Accordingly, this Court sits in an appellate capacity under the Administrative Procedures Act rather than as an independent finder of fact. 

Thus, the provisions of S.C. Code Ann. § 1-23-380(5) govern the circumstances in which an appellate body, such as this Court, may reverse or modify an agency decision, such as the Committee’s Final Decision.  In its entirety, § 1-23-380(5) reads as follows:       

The court may not substitute its judgment for the judgment of the [Committee] as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

 

(a)  in violation of constitutional or statutory provisions;

(b)  in excess of the statutory authority of the [Committee];

(c)  made upon unlawful procedure;

(d) affected by other error of law;

(e)  clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f)  arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

 

            Additionally, this Court must not only review the manner in which the Committee applied the controlling legal principles, but it must also determine if the factual determinations made by the Committee meet the substantial evidence standard. 

Under this standard, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Res. Conversation Comm’n, 467 S.E.2d 913, 917 (S.C. 1996).  In applying the substantial evidence rule, the factual findings of an administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 466 S.E.2d 357, 359 (S.C. 1996).  The agency’s decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.E.2d 304, 307 (S.C. 1981).  Accordingly, the fact that the record, when considered as a whole, presents the possibility of drawing two (2) inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence.  Waters, 467 S.E.2d at 917; Grant v. S.C. Coastal Council, 461 S.E.2d 388, 391 (S.C. 1995).  In determining whether an agency’s decision is supported by substantial evidence, the reviewing court “need only find, looking at the entire record on appeal, evidence from which reasonable minds could reach the same conclusion that the administrative agency reached.” DuRant v. S.C. Dep’t of Health & Envtl. Control, 604 S.E.2d 704, 706 (S.C. Ct. App. 2004).

An “abuse of discretion occurs when the judge’s ruling is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or, when the judge is vested with discretion, but the ruling reveals no discretion was exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case.” Ex parte Capital U-Drive-It, Inc., 630 S.E.2d 464, 467 (S.C. 2006).  Additionally, a decision is arbitrary if no rational basis for the conclusion exists, or when it is based on one’s will and not upon any course of reasoning and exercise of judgment.  A decision may also be arbitrary if it is made at pleasure without adequate determining principles or is governed by no fixed rules or standards. Converse Power Corp. v. S.C. Dep’t of Health & Envtl. Control, 564 S.E.2d 341 (S.C. Ct. App. 2002).

IV.       ANALYSIS OF THE ISSUES ON APPEAL IDENTIFIED BY THIS COURT AFTER ITS REVIEW OF THE APPELLANTS’ PRINCIPLE BRIEF 

 

A.        ISSUES ON APPEAL AND SUPPORTING ARGUMENTS FROM THE APPELLANTS’ PRINCIPLE BRIEF

 

            The Appellants did not identify distinct issues on appeal within their principle brief.  Instead, the Appellants challenged the Committee’s Decision by providing 27 enumerated paragraphs from which they contended that the “record as a whole demonstrates that the Department deviated from controlling policy and law in the challenged RIF.[7] 

This Court distilled the following three (3) distinct issues on appeal from the 27 paragraphs enumerated by the Appellants within their principle brief:

1.         The Department violated its own RIF policy, state law and regulations controlling RIFs, and our state’s constitution by including the Appellants and other certified educators it employed in the RIF it implemented effective June 1, 2003;[8]

 

2.         The Department violated its own RIF policy, state law and regulations controlling RIFs, and our state’s constitution by its decision to divide the entire agency into 11 competitive areas, the key decision by which it implemented its RIF effective June 1, 2003;[9] and

 

3.         The Department violated its own RIF policy, state law and regulations controlling RIFs, and our state’s constitution in the manner by which it retained and hired temporary employees before and after the RIF it implemented effective June 1, 2003, as well as in the manner by which it retained employees who accepted the retirement opportunity it offered during the RIF recall period.[10]

 

            In support of these three (3) distinct issues on appeal, the Appellants provided a series of overlapping legal arguments divided into four (4) sections.  These legal arguments identified instances in which the Department’s decisions and actions (1) purportedly violated provisions of the Department’s own RIF policy,[11] (2) purportedly violated state statutes,[12] (3) purportedly violated provisions of our state’s constitution,[13] and (4) purportedly deprived the Appellants of rights apparently secured to them by the Department’s own RIF policy, state law, and state regulation.[14]  


 

B.        THE DEPARTMENT’S ARGUMENTS IN RESPONSE

 

            In response to the arguments offered by the Appellants, the Department argued within its principle brief that there was sufficient evidence before the Committee to allow reasonable minds to arrive at the findings rendered by the Committee in its adjudication of the Appellants’ collective appeal.  The Department further argued that the Committee’s conclusions of law reflected the proper application of controlling legal principles, particularly in light of the reality that the interpretation and application of the applicable regulations, statutes, and precedent constituted matters of first impression before any judicial or quasi-judicial body. 

C.        ANALYSIS

 

As demonstrated below, this Court agrees with arguments presented by the Department in response to the Appellants’ principle brief.

1.         The Department did not violate its own RIF policy, state law or regulations controlling RIFs, or our state’s constitution by including the Appellants and other certified educators it employed in the RIF implemented effective June 1, 2003. 

 

            In support of the first issue on appeal distilled by the Court from the 27 enumerated paragraphs provided by the Appellants in their principle brief, the Appellants effectively argued that the Department should have excluded them, and the other certified educators it employed, from the RIF it implemented effective June 1, 2003. 

The Appellants presented the following description of the PUSD:

The [PUSD] is a single, statewide school district created by the General Assembly and administered by SCDC. (S.C. Code Ann. § 24-25-10, ROA p. 2281).  All educators in the District must be employed, supervised and terminated according to SCDC policies and procedures. (S.C. Code Ann. § 24-25-90, ROA p. 2291).[15]

 

            The Appellants continued their description as follows:

 

The [PUSD] has one Board and one Superintendent. (S.C. Code Ann. §§ 24-25-40 through 90, ROA pp. 2285-2291).  All educators are held to the same standards and there are no geographic regions within the [PUSD]. (ROA pp. 513-515, 525-528, 863-865, 913, 2614).[16]

 

            The Appellants then presented a chronology of events beginning with Director Ozmint’s appointment as the Department’s Executive Director in January 2003 and his decision to construct and implement a RIF.[17] As acknowledged by the Appellants, the Department submitted a new RIF policy to OHR, which OHR approved on March 14, 2003.[18]  (R. pp. 1633 – 40).  On March 28, 2003, the Department submitted its RIF plan to OHR, which described the process by which the Department would implement the RIF.[19] (R. pp. 1626 – 59, 1953 – 59, 1926 – 27). 

            The Appellants then observed that Director Ozmint identified the positions which would be subject to separation pursuant to the Department’s RIF plan and that, of the 148 positions designated for separation pursuant to the plan, “approximately” 84 were certified educators.[20]  Finally, the Appellants observed the following:

Higher paid educators were eliminated to get the most “bang for the buck.” (ROA pp. 1038-1039, 1054-1056, 1072, 1079-1080, 2682).  Appellants and SCDC witnesses testified that other SCDC employees complained about the “unfairness” of statutorily required educator pay raises. (Final Decision Findings of Fact No. 18, ROA p. 14).  Director Ozmint testified that these raises were “taken out of the hide” of other employees. (ROA pp. 1045-1046; see also ROA pp. 1052, 1095-1096).[21]

 

            In the four (4) sections of their supporting legal argument, the Appellants challenged the legitimacy of the Department’s decisions and actions which identified their certified educator positions for elimination.  In the section addressing the Department’s purported violations of applicable statutes, the Appellants argued that the Department violated § 24-25-40 by “conduct[ing] the RIF without conferring with the [PUSD] Board of Trustees or considering the laws creating and governing the [PUSD].[22]  In the section addressing the Department’s purported violations of our state’s constitution, the Appellants argued that their separation from employment deprived them of property interests secured to them by Article I, § 3,[23] and they also argued that their separation from employment affected their liberty interests to pursue their chosen profession in violation of Article I, § 22.[24]

            However, the Appellants offered these identical or nearly identical arguments to the Committee, and this Court concludes that the Committee, by applying and interpreting the applicable law, properly denied the Appellants’ appeal of the Department’s decision to deny their grievances. 

            The Appellants’ argument that the Department violated § 24-25-40 by “conduct[ing] the RIF without conferring with the [PUSD] Board of Trustees or considering the laws creating and governing the [PUSD],[25]” reflects nothing other than their own interpretation of this statutory provision.  Likewise, by stating that the PUSD “is a single, statewide school district created by the General Assembly and administered by” the Department,[26] the Appellants offered nothing more than their own interpretation of § 24-25-10. 

The testimony offered by the Appellants and the Department’s management officials, specifically Ms. Gerri Miro, along with the plain and ordinary meaning of the provisions of § 24-24-10, et seq., and, specifically § 24-25-90, contradict the notion that the Department merely “administers” the PUSD.  Ms. Miro has, since early 2003, served as Deputy Director for the Department’s Programs and Services, and, in this position, she has been and remains responsible for the Department’s Division of Education. (R. pp. 468 – 69 and 854 – 55).   When asked to describe the relationship between the Department’s Division of Education and the PUSD, Ms. Miro testified as follows:


 

There really isn’t any difference.  It’s … it’s a part of that division.  It’s an educational component that was mandated by law that is a part of the Division of Education to provide services, educational opportunities for our inmates, education and vocational opportunities for our inmates. (R. p. 864).

 

During her testimony, Ms. Miro negated the Appellants’ persistent contention that the PUSD somehow stood apart from the Department’s Division of Education or from the Department itself as a separate and distinct entity. (R. pp. 863 – 70).

Thus, this Court concludes that the Committee properly recognized the realities of the relationship amongst and between the Appellants, the PUSD, and the Department as follows:

SCDC management was not obligated by statute or policy to consult with the PUSD School Board or obtain its approval before implementing the RIF.  While good business relations may, in the opinion of some, dictate the feedback from management of affected areas be solicited, it is not required.  The PUSD exists as a unit under the purview of the SCDC Executive Director, not as a separate entity; and, therefore, it is not afforded any special rights or treatment no afforded to other divisions within the agency.  Further, § 24-25-90 of the South Carolina Code of Laws states:  “[t]he superintendent of the district [PUSD] and all other educational personnel shall be employed, supervised, and terminated according to [the Department’s] personnel policies and procedures. (Committee Conclusion of Law No. 3, R. pp. 16 – 17).

 

                The Appellants overlooked the reality that the Department’s 2003 RIF affected all of its divisions, not just the PUSD, which constitutes the Department’s Division of Education. However, the Committee observed the following (R. p. 11):

The positions of 148 SCDC employees were eliminated effective June 1, 2003.  Of those 148 positions, 84 (56.75%) were PUSD positions including Appellants in this appeal who were certified educators employed by SCDC in the PUSD. (Committee Exhibit #1, pp. 1 – 39).

 

            Thus, 64 of the 148 positions, or 43.25%, eliminated under the RIF implemented by the Department effective June 1, 2003 were non-District positions.  This fact reinforces the reality that the Appellants, like all other employees of the Department, were properly subject to the RIF implemented by the Department effective June 1, 2003.

            This reality is again reinforced by an examination of the definitions of “Employee” and “Employing Agency” from the applicable state regulations.  An “employee,” as defined by S.C. Regulation § 19-700, is “any person in the service of an agency who receives compensation from the agency and where the agency has the right to control and direct the employee in how the work is performed.”  An “employing agency,” as defined by the same regulation, is “the agency having primary control over the services of the employee.”  This Court concludes that the Committee properly harmonized the Department’s primacy, as the “employing agency,” over its “employees,” including the Appellants, within the context of a RIF driven by the need to address budgetary pressure:

SCDC’s RIF plan was, by design, based on budgetary pressure to reduce costs.  As such, it is reasonable for SCDC to develop a plan that maximized savings while retaining as many employees as possible in essential areas.  In SCDC’s efforts to reduce budget deficits, a hierarchy of priorities was identified and programs were evaluated for ways to reduce costs while still providing essential services.  The education program was one area where significant cost-saving opportunities existed.  Other areas, such as security, housing, clothing, food, and healthcare, in developing and implementing the RIF plan, were deemed to be areas where further cuts could not be tolerated. (Conclusions of Law, R. p. 16).

 

            Thus, this Court concludes that the Committee properly determined that the Department legitimately and lawfully included the Appellants and other certified educators it employed in its June 1, 2003 RIF plan:

Additionally, the selection of education employee’s positions for inclusion in the RIF was not the result of a belief by other employees or members of [SCDC] management that educators were overpaid.  This high number of educators involved in the RIF was the result of basic cost-saving principles to maximize savings and retain as many employees as possible due to the high salaries of most educators compared to other personnel. (Conclusion of Law No. 1, R. p. 16).


 

2.         The Department did not violate its own RIF policy, state law or regulations controlling RIFs, or our state’s constitution by dividing itself into 11 competitive areas for the purposes of implementing its RIF effective June 1, 2003.

 

            In support of the second issue on appeal the Court distilled from the 27 enumerated paragraphs provided by the Appellants in their principle brief, the Appellants argued that the Department violated its own RIF policy, state law and regulations, and our state’s constitution by dividing the agency into 11 competitive areas, the key decision by which it implemented its RIF effective June 1, 2003. 

The Appellants presented their chronology of the events which resulted in the designation of these competitive areas.  As recounted by the Appellants, Director Ozmint instructed the former Director of the Department’s Division of Human Resources, John Near, “to draw ‘competitive areas’ in a way to minimize employee bumping and maximize savings.[27]  Mr. Near, upon receiving these instructions, “created [11] geographic regions within SCDC for purposes of the RIF,” regions which, according to the Appellants, “were not restricted to areas where staff was separately organized or clearly distinguishable from the staff in other areas.[28]  According to the Appellants, “Director Ozmint admitted that the geographic regions existed only for the purpose of the RIF and to reduce bumping.[29]

            After providing their accounting of the impact of the RIF upon certified educator positions at various institutions operated by the Department,[30] the Appellants then invoked portions of the testimony provided to the Committee by Ms. Miro and the deposition testimony provided by former District Superintendent Wendell Blanton in an attempt to support their contention that the Department improperly established 11 competitive areas in the course of implementing its 2003 RIF. [31]

            In the four (4) sections of the their supporting legal argument, the Appellants challenged the legitimacy of the Department’s decisions and actions which resulted in the establishment of the 11 competitive areas it used to implement its RIF effective June 1, 2003.  In the section addressing the Department’s purported violations of its own RIF policy, the Appellants invoked paragraph 1.1 of the March 14, 2003 edition of Policy Number ADM-11.05 and then provided six (6) succinct points and a narrative which argued that the Department violated its own RIF policy by establishing 11 competitive areas within its RIF plan.[32]  In the section addressing the Department’s purported violations of applicable statutes, the Appellants argued that the Department violated § 24-25-10 by establishing 11 competitive areas within its RIF plan as these areas “arbitrarily divided ‘the special statewide unified school district’,[33]” and, consequentially, the RIF resulted in the reduction of “[PUSD] educational services to designated facilities that do not operate on a ‘statewide’ basis.[34]  The Appellants also argued that the Department violated § 24-25-90 by establishing 11 competitive areas within its RIF plan.[35]

            However, the Appellants offered these identical or nearly identical arguments to the Committee, and this Court concludes that the Committee, by applying and interpreting the applicable law,[36] properly denied the Appellants’ appeal of the Department’s decision to deny their grievances.  For example, the Appellants, in arguing to this Court that the Department violated § 24-25-10 and § 25-25-90 by establishing 11 competitive areas within its RIF plan, simply offer nothing other than their own interpretation of these statutory provisions.[37] 

            Furthermore, the Appellants argued the following:

There is no commuting limit for employees of SCDC. (ROA pp. 621-623).  Ms. Miro, for example, has commuted forty-seven miles one way each day for her duties as Warden of Allendale Correctional Institution and as a [Division] Director of SCDC.  SCDC staff often live far from their places of employment, including out of state.  There is no requirement that an employee live close to his or her place of work and employees often choose to commute and advance in their service to SCDC. (ROA pp. 527-528).[38]

 

            In raising this argument, the Appellants assailed Mr. Near’s decision that an employee’s bumping rights under the 2003 RIF would be limited to a reasonable geographic radius of 30 miles.[39]  Mr. Near’s decision clearly manifested itself within the March 14, 2003 RIF policy Mr. Near and his staff developed, specifically within paragraph 7.2 of Policy Number ADM-11.05:

When a vacancy occurs in an employee’s competitive area which is (1) in the same job class, pay band, pay level or lower and functionally similar as the position held prior to the lay off, downward bumping, or reassignment and (2) within a reasonable geographic distance (30 mile radius) of the work location of the employee, then the eligible employee will be offered the vacancy provided s/he meets the minimum training and experience qualifications.  The position must be accepted in writing by the employee within two (2) working days of the offer or s/he waives any future recall rights. (R. p. 1638). [emphasis supplied in policy].

 

            Director Ozmint echoed this concept in his March 28, 2003 letter to OHR Director Wilkins when he described the competitive areas and competitive job classification series encompassed by the RIF plan:

The positions to be eliminated in this [RIF] plan are located across the state of South Carolina.  Competitive areas have been designated to include entire groups of institutions and divisions within a reasonable geographic area to accommodate the realistic opportunity for staff relocation, and hopefully, recall and reinstatement.  In addition, by expanding the number of locations, adverse impact may be minimized on specific groups of employees. (R. p. 1627).

 

            In assailing the Department’s decision regarding the establishment of 11 competitive areas and the geographic limitations they represent, the Appellants overlooked the definition of “involuntary reassignment” provided in S.C. Regulation § 19-700:

INVOLUNTARY REASSIGNMENT – the movement of an employee’s principal place of employment in excess of 30 miles from the prior workstation at the initiative of the agency.

 

Thus, contrary to the Appellants’ arguments, this Court concludes that the 11 competitive areas and the geographic limitations they represent were reasonably derived from our state code of regulations. 

            By way of a final example, the Appellants offered a description of Ms. Miro as the “Director of the SCDC Education Division that includes the [PUSD].[40]  However, this description is misleading, as, according to Ms. Miro’s testimony, the PUSD and the Department’s Division of Education are one and the same under the Department’s organizational structure.  Ultimately, just as they did before the Committee, the Appellants overlooked the reality that the RIF undertaken by the Department in 2003 affected all of the Department’s divisions, not just the PUSD, which constitutes the Department’s Division of Education.  In light of these realities, this Court concludes that the Committee properly determined that the Department legitimately and lawfully established the 11 competitive areas it used to implement its RIF effective June 1, 2003:

The development of the competitive areas did not violate SCDC’s RIF policy, nor were they drawn to retaliate against or punish SCDC educators.[41]  Such groupings are specifically allowed in SCDC’s RIF policy and, as reflected in the RIF policy, the manner in which the competitive areas are designated is left to the discretion of the Executive Director of SCDC.  As such, the Committee finds that the geographical competitive areas were allowable under SCDC’s RIF policy and their determination was left to the discretion of the Executive Director.  Further, the Committee finds that neither state law nor SCDC’s RIF policy required the PUSD to be treated as a single competitive area in the event of a RIF or that employees be afforded agency-wide bumping rights.  In addition, the PUSD employees were not singled out because SCDC was divided into 11 competitive areas which also limited the bumping rights of employees not affiliated with the PUSD. (Conclusion of Law No. 2, R. p. 16).

     

3.         The Department did not violate its own RIF policy, state law or regulations, or our state’s constitution by its decisions to retain and hire temporary employees before and after the RIF it implemented effective June 1, 2003 and to retain employees who accepted the retirement opportunity it offered during the RIF recall period.   

 

            In support of the third issue on appeal the Court distilled from the 27 enumerated paragraphs provided by the Appellants in their principle brief, the Appellants argued that the Department violated its own RIF policy, state law and regulations, and our state’s constitution by retaining and hiring temporary employees before and after the RIF it implemented effective June 1, 2003 and by retaining employees who accepted the retirement opportunity after the RIF it implemented effective June 1, 2003.

            The Appellants provided a list of certified educators with less service than the Appellants who SCDC retained after the RIF.[42]  They also stated that some Appellants testified, purportedly without contradiction, that they had been “replaced by part-time, less experienced or temporary staff” and that “[t]emporary employees and part-time employees were retained and hired during the RIF recall period.[43]  They then referenced Ms. Heather Pope, a managing partner of OHR, who “testified that the following question and answer appeared on the OHR website during the RIF period under review:”

Q.  Can an agency hire a temporary employee to replace an employee affected by a RIF or to perform the functions of a person eliminated by a RIF?

 

A.  An agency may not hire a temporary employee to perform the duties of an employee affected by a RIF.  If these duties are to be performed within one year of the effective date of the RIF the agency should reestablish the position and implement its recall procedure.[44]

 

The Appellants next discussed two (2) “retirement opportunities” purportedly implemented by the Department during the RIF recall period, which commenced on the RIF’s effective date of June 1, 2003 and concluded on May 31, 2004.[45]  According to the Appellants, these “retirement opportunities” allowed full-time employees to retire and return to work in “temporary” capacities at 75% of their former salaries.[46]

            The Appellants then provided their assessment of the regulatory authority purportedly applicable to the “retirement opportunities” the Department implemented during the RIF recall period.  According to the Appellants, S.C. Regulation §§ 19-700 and 19-719.01 support the proposition that “a public employee who retires experiences a ‘break in service.’[47]  The Appellants then cited S.C. Code Ann. § 9-1-1790 for the proposition that the retirees who accepted the “retirement opportunities” offered by the Department during the recall period “lose any enforceable right to re-employment” and for the proposition that a “retiree must leave active employment for a minimum of 15 days.[48]  The Appellants then stated the following:

During the recall period of June 1, 2003 – May, 31, 2004, SCDC employed [23] individuals in temporary positions to perform services formerly provided by full-time, certified educators.  During the same period, SCDC assigned responsibilities formerly performed by full-time, certified educators to 19 individuals as non-certified staff.[49]

 


 

In an associated footnote, the Appellants argued that Appendix A to their principle brief established “that there were twice as many new permanent and temporary education employment actions during the recall period as the number of Appellants separated by RIF.[50]

            The Appellants then asserted the following parameters associated with “temporary employee” status:

By regulation, a “temporary employee” cannot exceed one year of employment.  Additionally, a “temporary position” cannot be in place for more than one year. S.C. Regulations R. 19-700.  During the recall period, SCDC employed individuals as “temporary employees” and re-employed individuals in “temporary positions.[51]

 

            In the four (4) sections of their supporting legal argument, the Appellants presented various challenges to the Department’s decision to retain and hire temporary employees before and after the June 1, 2003 RIF and to retain employees who accepted the only retirement opportunity it offered during the RIF recall period.  In the section addressing the Department’s purported violations of its own RIF policy, the Appellants argued that the Department violated paragraph 2.3 of Policy Number ADM-11.05 by employing “individuals in temporary positions and permanent positions during the recall period without notifying RIF’ed employees,” and by offering “retiring employees return to employment after a ‘break in service’ during the recall period without notifying RIF’ed employees.[52]  The Appellants further argued that the Department violated paragraphs 7.1, 7.5, and 11 of Policy Number ADM-11.05 in the manner by which it retained and managed its pool of temporary employees during the RIF’s recall period.[53]

            In the section addressing the Department’s purported violations of applicable statutes, the Appellants argued that the Department violated S.C. Code Ann. § 24-25-70(7) by employing “non-certified instructional staff” and “former certified instructional staff in non-certified positions to perform their former duties,” and by offering “instruction through individuals hired in non-certified positions.[54]  The Appellants also argued that the Department violated S.C. Code Ann. § 24-25-90 and its own RIF policy when it purportedly “hired temporary employees to replace educators separated by RIF and allowed individuals who voluntarily separated for purposes of retirement to return to temporary positions in favor of employees separated by RIF.[55]  The Appellants further argued that the Department violated S.C. Code Ann. § 8-11-185 by guaranteeing “re-employment at lower pay to employees who chose to ‘retire,”’ because, “[b]y law, these employees experienced a ‘break in service’ and were not entitled to preference over RIF’d employees who retained ‘covered employee’ status during the recall period.[56]  Finally, in the section addressing the Department’s purported violations of our state’s constitution, the Appellants argued that SCDC violated Article I, § 3 of our state’s constitution, because, during the RIF’s recall period, it “allowed employees choosing to retire to return following a ‘break in service’ without allowing the Appellants the opportunity to recall.[57]

            However, the Appellants offered these identical or at least very similar arguments to the Committee, and this Court concludes that the Committee, by correctly interpreting the applicable law and regulations, properly denied the Appellants’ appeal of the Department’s decision to deny their grievances.  Just as they did to the Committee, this Court concludes that the Appellants offered nothing more than their own interpretation of the Department’s RIF provisions, state statutes and regulations, our state’s constitution, and precedent from our state’s courts.

            In assailing the Department’s decision to implement the retirement opportunity during the RIF recall period and in assailing its management of personnel decisions associated with the implementation of this opportunity, the Appellants invoked the definition of “temporary employee” provided in S.C. Regulation § 19-700.  However, neither S.C. Regulation § 19-700 nor § 19-719.01 include the following relevant terms:  “retired,” “retiree,” “retirement,” “active service,” or “return to active service.”   Thus, the provisions of these regulations are not precisely applicable to retirees who return to active service, such as the employees who accepted the only retirement opportunity implemented by the Department during the RIF recall period. 

            Instead, an examination of the statutes that apply to state retirees who return to state employment undermine the Appellants’ arguments on these issues.  This critical distinction perhaps is best understood by an examination of § 9-1-1790 which is entitled “Amount which may be earned upon return to covered employment.”  Section 9-1-1790(A) provides as follows:


 

A retired member of the system who has been retired for at least fifteen consecutive calendar days may be hired and return to employment covered by this system or any other system provided in this title without affecting the monthly retirement allowance he is receiving from the system. If the employment continues for at least forty-eight consecutive months, the provisions of Section 9-1-1590 apply. If a retired member of the system returns to employment covered by this system or any other system provided in this title sooner than fifteen days after retirement, the member's retirement allowance is suspended while the member remains employed by the participating employer. If an employer fails to notify the system of the engagement of a retired member to perform services, the employer shall reimburse the system for all benefits wrongly paid to the retired member.

 

            Obviously, § 9-1-1790(A) references § 9-1-1590 which is entitled “Effect of restoring beneficiaries to active service,” and, by the term “beneficiaries,” this statute refers to state retiree beneficiaries.  The third paragraph of § 9-1-1590 provides as follows:

Should any other beneficiary who has been restored to active employment continue in service for a period of forty-eight consecutive months and his annual compensation be equal to or greater than seventy-five percent of his average final compensation at retirement, then he may elect to cease his retirement allowance and become a contributing member again and void his election of an optional benefit. ... Any such beneficiary may request the board to allow him to repay to the System all monies received by him as benefits during any periods subsequent to the date of his reentry into active service and make a contribution equal to the amount he would have contributed had he been a member during the period of his restoration to active service prior to his again becoming a member, together with the interest which would have been credited to the contributions on account of such period of restoration up to the date such contribution is made. … In no event shall the retirement allowance payable upon subsequent retirement be less than the amount of his allowance previously payable plus any increases which would have been payable under Section 9-1-1810 had he not been restored to service.

 

            The second and third cross references at the conclusion of § 9-1-1590 read as follows:

 

Application of this section to retired member whose return to covered employment continues for at least 48 consecutive months, see §§ 9-1-1790, 9-11-90.

 

Provision allowing retired members of the State Retirement System to return to work and earn certain amounts without having their monthly retirement allowance affected, see §§ 9-1-1790, 9-11-90.

 

            Section 9-11-90 is entitled “Effect of restoring beneficiary to service; retirement after return to service,” and § 9-11-90(3) provides as follows:

Should any other beneficiary who has been restored to active employment continue in service for a period of forty-eight consecutive months and his annual compensation be equal to or greater than seventy-five percent of his average final compensation at retirement, then he may elect to cease his retirement allowance and become a contributing member again and void his election of an optional benefit. … In no event must the retirement allowance payable upon subsequent retirement be less than the amount of his allowance previously payable plus any increases which would have been payable under Section 9-11-310 had he not been restored to service.

 

            Section 9-11-90(4)(a) then provides as follows:

 

Notwithstanding the provisions of subsections (1) and (2) of this section, a retired member of the system who has been retired for at least fifteen consecutive calendar days may be hired and return to employment covered by this system or any system provided in this title without affecting the monthly retirement allowance he is receiving from this system. If the employment continues for at least forty-eight consecutive months, the provisions of Section 9-11-90(3) apply. If a retired member of the system returns to employment covered by the South Carolina Police Officers Retirement System or any other system provided in this title sooner than fifteen consecutive calendar days after retirement, the member's retirement allowance is suspended while the member remains employed by a participating employer of any of these systems. If an employer fails to notify the system of the engagement of a retired member to perform services, the employer shall reimburse the system for all benefits wrongly paid to the retired member.

 

            Thus, § 9-1-1790(A) clearly authorizes an agency, such as the Department, to hire a state retiree back to employment without the retiree incurring a suspension of his or her monthly retirement allowance so long as the state retiree has been “retired for at least fifteen consecutive calendar days.”  Section 9-1-1790(A) still authorizes an agency, such as the Department, to hire back a state retiree to employment even if the state retiree has not been retired for at least fifteen consecutive calendar days, but, in such circumstances, the retiree will incur an suspension of his or her monthly retirement allowance for as long as the retiree remains employed. 

            The Appellants persistently assailed the Department’s decision to retain and hire temporary employees before and after its June 1, 2003 RIF and to retain employees who accepted the retirement opportunity it offered during the RIF recall period.[58]  However, § 9-1-1790 does not use term “break in service;” instead, it addresses a state retiree who has been retired for at least 15 consecutive calendar days.  Moreover, § 9-1-1790 does not explicitly or even impliedly declare, as argued by the Appellants, that retirees who take advantage of “retirement “opportunities” lose any enforceable right to re-employment.  Like § 9-1-1790, § 9-1-1590 and § 9-11-90 also apply precisely to state retirees, like those retirees who accepted the only retirement opportunity the Department offered during the recall period.

            The Appellants anchored their arguments on provisions of our state regulations and statutes that do not precisely apply to the retirement opportunity in question, and they did not consider that a RIF presents an employee with the prospect if not the reality of involuntary separation from their employment while a retirement opportunity presents a retirement eligible employee only with the prospect of a 15 consecutive calendar day period of retirement before the he or she may return to their job without an interruption of their retirement allowance.  Thus, in light of these realities, this Court concludes that the Committee properly determined as follows:

The retirement opportunity offered by SCDC after the RIF plan was implemented as a separate action designed to further reduce operating costs.  Employees who elected to participate in this opportunity were removed from their full-time equivalent positions and placed into temporary positions.  Recall rights are not applicable in the case of temporary positions; therefore, employees affected by the RIF were not provided recall rights in relation to these jobs.  The SCDC employees who took part in the retirement opportunity were not offered new positions; rather, it was a way for them to retain their current positions, in a temporary capacity while significantly reducing SCDC costs by reducing salaries and eliminating the cost of benefits for these employees.  SCDC was not obligated to offer the positions to Appellants under the RIF policy’s recall procedures because they were temporary positions.  In addition, Mr. Ozmint’s cover letter to OHR that was submitted along with the RIF plan stated that “[t]emporary positions, particularly in the area of educational instruction to inmates, may be developed and made available to affected employees by the Reduction-in-Force;[59]” this language indicates that this is a possibility, not a promise.  Additionally, the formal RIF plan did not address, nor would it have addressed, the subject of temporary positions in terms of the recall rights for employees affected by the RIF. (Conclusion of Law # 4, R. p. 17).

 

            This Court also concludes that the Committee also properly determined the following:

           

The retention of certain temporary and temporary grant employees did not violate the approved RIF policy.  While these types of positions are often the first to be eliminated prior to enacting a RIF, there is no specific requirement in SCDC’s RIF policy that made this action mandatory.  Since these employees do not have benefits and other extraneous costs to the agency like full time equivalent employees do, electing to keep these positions as opposed to full-time equivalent positions was one way to further maximize savings to the agency, which is in line with the stated purpose of the RIF. (Conclusion of Law # 5, R. p. 17).

 

D.        THE APPELLANTS ABANDONED THE RETALIATION CLAIM THEY RAISED TO THE COMMITTEE

 

As explained above in Section IV(A), the Appellants did not identify distinct issues on appeal within their principle brief, and, consequentially, this Court distilled three (3) distinct issues on appeal from the 27 paragraphs the Appellants enumerated within their principle brief.  As also explained above in Section IV(A), the Appellants provided a series of overlapping legal arguments divided into four (4) sections in support of the three (3) distinct issues on appeal identified by the Court. 

However, as demonstrated by the Department, these three (3) distinct issues on appeal and the four (4) sections of supporting legal argument reflect a key deviation from the grounds for appeal presented by the Appellants to the Committee. 

In a document dated October 14, 2008 and entitled “GROUNDS FOR APPEAL FORM” (R. pp. 2695 – 99), the Appellants framed three (3) overarching grounds for their collective appeal of the Department’s denial of their grievances to the Committee.  First, the Department, by its 2003 RIF policy and through its 2003 RIF plan, purportedly violated the statutes which created and control the PUSD.  Second, the Department, by its 2003 RIF policy and through its 2003 RIF plan, purportedly deviated from “normal” RIF practices and procedures.  Third, the Department, by its 2003 RIF policy and through its 2003 RIF plan, purportedly targeted the Appellants in a retaliatory manner because they had successfully engaged in litigation, Abraham v. PUSD No. 1 & S.C. Dep’t of Corr., 538 S.E.2d 656 (S.C. Ct App. 2000), against the Department regarding their compensation.  (R. pp. 2272 – 79). 

The Appellants articulated a number of arguments to the Committee regarding the purported retaliatory motive behind the Department’s 2003 RIF policy and plan (R. pp. 2695 – 99).  For example, Appellant Max Randolph appeared as the very first witness during the presentation of the Appellants’ case. (R. pp. 123 – 170).  Mr. Randolph testified regarding statements made to him by Director Ozmint during a conversation between them which purportedly occurred in March 2003, shortly after the Department had announced the RIF.  The Appellants portrayed Director Ozmint’s purported statements to Mr. Randolph as evidence that Director Ozmint possessed a retaliatory motive against educators, including the Appellants, in the manner and method by which he designed and implemented the 2003 RIF. 

Thus, the Department argued to this Court that the purported retaliatory motive held by the Department and, specifically, Director Ozmint against the Appellants constituted perhaps the essential component of the Appellants’ appeal to the Committee, and the Department further argued that the Committee recognized this reality in its Decision. (R. p. 14). 

This Court agrees with the Department, and, accordingly, it finds that the Appellants did not appeal the Committee’s finding that “there was no credible evidence presented that the elimination of educator positions in PUSD was motivated by a desire for retaliation for an earlier lawsuit that resulted in the increase of educators’ salaries.” (R. p. 16).  Specifically, the Court finds that the words “retaliate” and “retaliation” do not appear anywhere within the Appellants’ principle brief.  The Court also finds that the word “retaliation” appears only twice within the Appellants’ supplemental brief, and, in neither instance did the Appellants challenge the above quoted finding by the Committee.[60] 

Accordingly, the Court concludes that the Appellants abandoned the retaliation claim they raised in their appeal to the Committee.  See Jones v. Leagan, 681 S.E.2d 6, 15 (S.C. Ct. App. 2009) (citing Jinks v. Richland County, 585 S.E.2d 281, 283 n. 3 (S.C. 2003)).  Finally, the Court finds as dispositive the following statement from Appellants’ counsel during oral argument conducted by the Court on October 28, 2009:

Now, do we believe … certainly, does Mr. Randolph, Mr. Bell, and Ms. Martin, do they believe that they were victims of retaliation?  Absolutely.  Do we believe that we proved that?  Absolutely.  But we have purposely removed that from the equation here on this appeal because we have other grounds that reach the same destination.[61]

 


 

V.        ANALYSIS OF ISSUES RAISED BY APPELLANTS DURING ORAL ARGUMENT AND IN MATERIALS SUBMITTED BY THE PARTIES AFTER ORAL ARGUMENT

 

A.        THE APPELLANTS DID NOT ARTICUALTE A VIABLE EQUAL PROTECTION CLAIM IN THEIR INSTANT APPEAL

 

As chronicled in Section II(E) above, the Appellants, by letter filed with the Court on November 18, 2009, rebutted the contention advanced the Department in its supplemental brief that the Appellants had “waived” any equal protection claim during the argument articulated by Appellants’ counsel to the circuit court on December 11, 2006 when the circuit court considered the Appellants’ Petition for Judicial Review.

1.         During oral argument, the Appellants emphasized and expanded upon the equal protection claim they only sparingly articulated in their principle brief.

 

During their presentation to this Court on October 28, 2009, the Appellants emphasized and expanded upon an argument they only sparingly articulated within their principle brief, namely that the Department, by the manner in which it formulated and implemented its RIF effective June 1, 2003[62] and by the manner in which it implemented the retirement opportunity it offered during the RIF recall period, had deprived the them, under Littlefield v. S.C. Forestry Comm’n, 523 S.E.2d 781, 783 (S.C. 2000), of “the equal protection guarantees of [South Carolina’s] Constitution.[63]

Appellants’ counsel initially discussed the Appellants’ equal protection argument with the Court during the October 28, 2009 oral argument, and, in doing so, referenced Littlefield:

COUNSEL:           Equal protection comes into this, Your Honor, and I’ll say a little bit about the equal protection issue.  Equal protection, as you know, in the public sector means that those who are similarly [situated] must be treated similarly.  What we have here …

THE COURT:       There has to be an intent, though, doesn’t it?

COUNSEL:           No, sir, not with equal protection.  There’s no motive required to show a violation of equal protection.  You can look at the equal protection case.  I believe it is [Littlefield].

THE COURT:       Excuse me one second. Go ahead, sir.

COUNSEL:           Okay.  You can look at [Littlefield], for example, and in that case what happened was there was a treatment of people who were separated for reasons other than retirement, differently from people who retired, in terms of obtaining a vested benefit.  And what the Court said was that difference was a violation of equal protection.  They didn’t have to go and say these people were being intentionally mean to folks.  Just that their conduct resulted in a treatment of similarly situation individuals in a desperate [sic] fashion.  You know, a classic equal protection case is, you know, if you have someone who is in one position and you have another in the same position and you just arbitrarily pick that person for some disadvantageous reasons, you can violate equal protection.[64]

 

Appellants’ counsel later connected the retirement opportunity offered by the Department to its retirement eligible employees during the RIF recall period to an equal protection claim purportedly held by the Appellants:

THE COURT:       Information related to the temporary …

COUNSEL:           Correct, Your Honor.  Required break in service and earnings limitation.  This is what [retirement eligible employees] have to sign understanding that they are going to get [the retirement opportunity].  … This was an artifice used by [the Department] as a money saving effort and, while that may be well and good in the absence of [a RIF], it’s not allowed where you have people out there that you have involuntarily separated who want to come back to work for you in whatever capacity, and you’re instead giving preferential treatment to individuals who are not covered employees.  Thus, the equal protection argument, Your Honor.  So there is a lot of curiosity in this particular [RIF] that doesn’t require that we penetrate the motivations of the executive director of [the Department]. … Because during the recall period, number one, they made a promise to my clients and everybody else who was separated that you’ll get a change at those positions.  They didn’t have to make that promise because the law required them to and they didn’t do it, and they didn’t do it to save money.[65]

 

2.         The Appellants more precisely articulated their equal protection claim within their supplemental brief.

 

In their supplemental brief, the Appellants reiterated their reliance upon Littlefield by arguing as follows:

Where the General Assembly has established a classification that protects a designated group of citizens (here, the protected class of “covered employees” during a RIF recall period), failure to afford rights established by the General Assembly violates constitutionally protected equal protection and due process guarantees.  Proof of motive is not required to protect a legislatively established right. See [Littlefield].[66]

 

The Appellants then further addressed their equal protection argument as follows:

Motive is a factor where the equal protection clause is used to challenge a classification established by law.  In that case, it must be demonstrated that the government intended to violate an established right in making or enforcing the classification. See, Seabrook v. Knox, 369 S.C. 191, 631 S.E.2d 907, 912 (2006) (challenge to a zoning designation).  Here, Appellants seek to enforce rather than challenge their rights as members of a protected class, covered employees separated from employment by RIF.  By virtue of their covered employee status, Appellants are entitled to protections guaranteed by law that are not available to individuals who are not “covered” due to probationary or temporary employment, or who experience a “break in service” due to termination for cause or voluntary separation from employment.  The General Assembly’s legitimate interest in protecting individuals who lose permanent state employment through no fault of their own establishes substantial, enforceable rights protected by the due process and equal protection clauses of the South Carolina Constitution. See, S.C. Const. art. I, §§ 3 and 22.[67]

 

 

3.         The Department devoted the majority of its supplemental brief to the expanded equal protection argument articulated by the Appellants during oral argument.

 

The majority of the Department’s supplemental brief consisted of its response to the Appellants’ equal protection argument, and the Department began its supplemental brief by contending that the Appellants, during their presentation to the circuit court on December 11, 2006, had “explicitly denied” that their challenge of the RIF “animated an equal protection claim” to the circuit court.[68] (R. p. 2338, lines 9 – 13).  Additionally, the Department accurately observed that the Appellants did not identify or otherwise articulate an equal protection argument in their statement of grounds on appeal to the Committee. (R. pp. 2696 – 99).

The Appellants’ November 18, 2009 letter specifically assailed the Department’s contention that they had “waived” or otherwise abandoned their equal protection claim. 

4.         The Appellants waived their equal protection claim during the proceedings before the circuit court, and the Appellants also failed to preserve their equal protection claim for review.

 

Regarding the equal protection claim emphasized by the Appellants during oral argument before the Court on October 28, 2009 and articulated by the Appellants within their principle and supplemental briefs, this Court concludes, after considering the transcript of the entire hearing conducted by the circuit court on December 11, 2006 (R. pp. 2320 – 57), as well as the parties’ arguments, that the Appellants waived their equal protection claim during the proceedings before the circuit court.  

This Court also concludes that the Appellants, by not identifying or otherwise articulating an equal protection argument in their statement of grounds on appeal to the Committee, failed to properly preserve such an argument for consideration here.

5.         Even if the Appellants did not waive their equal protection claim during the proceedings before the circuit court and even if the Appellants properly preserved their equal protection claim for review, the Appellants misapprehended Littlefield.

 

Despite these rulings, however, this Court still addresses the merits of the Appellants’ equal protection claim.  At the very least, the conflict between the position articulated by the Appellants before the circuit court and the position they articulated before this Court evidences the Appellants’ fundamental misunderstanding of an equal protection claim. 

The Appellants’ fundamental misunderstanding of an equal protection claim manifested itself in their analysis of Littlefield.  For example, the Appellants completely omitted any discussion of whether the Littlefield Court determined or even considered whether a “rational basis” existed for the state’s application of the statute at issue, S.C. Code Ann. § 8-11-620.  Ultimately, the Littlefield Court, 523 S.E.2d at 783, after conducting a proper equal protection analysis, determined that no rational basis existed to support the manner in which state officials applied this statute. 

Moreover, the Appellants failed to address or even acknowledge the concepts of “rational basis” and “strict scrutiny,” concepts which are fundamental to a proper equal protection analysis.  See Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 – 21 (4th Cir. 1995).  As an aside, our Supreme Court recognized the Fourth Circuit’s holding in Sylvia Dev. Corp. within its decision in Seabrook v. Knox, 631 S.E.2d 907, 912 (S.C. 2006) (“To establish an equal protection violation, plaintiffs must demonstrate they were intentionally and purposely subjected to treatment different from other similarly situated. Sylvia Dev. Corp., 48 F.3d at 818.” (citation omitted)).  Obviously, the Appellants overlooked this component of Seabrook when they relied upon the decision in their supplemental brief. 

Thus, contrary to the flawed understanding of equal protection evidenced by the Appellants, “the essential command of the Equal Protection Clause has always been that the classification of persons [to] which a law applies must be ‘reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’” Sylvia Dev. Corp., 48 F.3d at 818. (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).  Finally, as recognized by our Court of Appeals in Town of Iva ex rel. Zoning Admin. v. Holley, 649 S.E.2d 108, 111 (S.C. Ct. App. 2007), “[e]ven assuming [governmental entity] is not enforcing [an] ordinance equally, the fact that there is some unequal treatment does not necessary rise to the level of a constitutional equal protection violation. (citation omitted).”

6.         The Appellants failed to articulate a viable equal protection claim in their instant appeal to this Court.

 

Therefore, this Court concludes that, under the authority discussed above, as well as our Court of Appeals’ recent decision in Harbit v. City of Charleston, 675 S.E.2d 776 (S.C. Ct. App. 2009), the Appellants failed to articulate a viable equal protection claim to this Court during their instant appeal of the Committee’s Final Decision. 

In Harbit, 675 S.E.2d at 782 – 783, our Court of Appeals articulated the following standards associated with a viable equal protection claim:

Under the Equal Protection Clause of the Fourteenth Amendment, a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1; see S.C. Const. art. I, § 3 (“The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”). This clause requires that “the states apply each law, within its scope, equally to persons similarly situated, and that any differences of application must be justified by the law's purpose.” Sylvia Dev. Corp., 48 F.3d at 818. It does not prohibit different treatment of people in different circumstances under the law. [Town of Iva ex rel. Zoning Admin., 374 S.C. at 541, 649 S.E.2d 110.]  Instead, “‘the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’Id.  In a case such as this, the rational basis standard, rather than strict scrutiny, applies because the classification at issue does not affect a fundamental right and does not draw upon inherently suspect distinctions such as race, religion, or alienage. [Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 428 – 29, 593 S.E.2d 462, 469 (2004)].

Further, one seeking to show discriminatory enforcement in violation of the Equal Protection Clause must demonstrate arbitrary and purposeful discrimination in the administration of the law being enforced. See State v. Solomon, 245 S.C. 550, 574, 141 S.E.2d 818, 831 (1965). "[E]ven assuming [a governmental entity] is not enforcing [an] ordinance equally, the fact that there is some unequal treatment does not necessarily rise to the level of a constitutional equal protection violation." Denene, Inc. v. City of Charleston, 359 S.C. 85, 96, 596 S.E.2d 917, 922 (2004).

Consequently, because the record does not indicate that Harbit was the subject of purposeful, invidious discrimination, the circuit court did not err in granting summary judgment on his equal protection claim. See Sylvia Dev. Corp., 48 F.3d at 825 (internal citations omitted) ("While an equal protection claim must be rooted in an allegation of unequal treatment for similarly situated individuals, a showing of such disparate treatment, even if the product of erroneous or illegal state action, is not enough by itself to state a constitutional claim.").

 

Despite the efforts by the Appellants to excise this component of an equal protection analysis from the instant case, no evidence exists, as required under Harbit, that the Department, either in the manner by which it implemented the RIF or in the manner or timing of the retirement opportunity it offered during the recall period, arbitrarily and purposefully discriminated against the Appellants or any other employee. 

As the Court recognized above in Section IV(D), the Appellants abandoned the retaliation claim they raised to the Committee.  Additionally, Appellants’ counsel conceded to the Court during oral argument that the Appellants had “decided not to address any motivational issues in this appeal.[69]” Finally, the Committee found, in its first “Conclusion of Law,” that the Appellants, certified educators employed by the Department, “were not unfairly targeted for termination in retaliation for an earlier lawsuit regarding wages.” (R. p. 16). 

Thus, as established under Harbit, even if the Appellants’ equal protection claim is legitimately rooted in an allegation of unequal treatment of the Appellants as opposed to the employees who availed themselves of the retirement opportunity offered during the recall period, a showing of such disparate treatment, even if it was the product of erroneous or illegal action by the Department, is not enough by itself to state a constitutional claim.

Even if the equal protection analysis is limited in the manner urged by the Appellants under their flawed interpretation of Littlefield, neither the manner by which the Department implemented its RIF nor its retirement opportunity animated a legitimate equal protection claim.

In his argument to the Court,[70] Appellants’ counsel focused on a paragraph from Director Ozmint’s March 28, 2003 letter to Mr. Wilkins, the State Human Resources Director.  This paragraph read, in its entirety, as follows:  “Temporary positions, particularly in the area of educational instruction to inmates, may be developed and made available to affected employees by the [RIF].” (R. p. 1630). 

According to Appellants’ counsel, this paragraph represented a “promise” that, if temporary positions were made available as a result of the RIF, then the Department would offer these temporary positions to employees involuntarily separated by the RIF, such as the Appellants.  Thus, when retirement eligible employees availed themselves of the retirement opportunity implemented by the Department during the recall period, their positions became “temporary positions” into which former employees involuntarily separated by the RIF had priority to fill.  However, the plain wording of this paragraph indicates that no such “promise” was created by this paragraph (i.e. “may” vs. “must”).[71]

Moreover, former employees involuntarily separated by the RIF, such as the Appellants, were not identically situated to the retirement eligible employees to whom the Department offered the “retirement opportunity.”  As recognized by Harbit, the Equal Protection Clause “does not prohibit different treatment of people in different circumstances under the law.”

In their brief, the Appellants identified S.C. Code Ann. § 24-25-90 and § 8-17-330 as the statutes purportedly applied by the Department in an unequal and arbitrary fashion in the architecture and implementation of its RIF.[72]  Even if the Department somehow unequally or arbitrary applied by these statutes in formulating or implementing its RIF, a conclusion which the Court has not made and does not make here, the retirement opportunity implemented by the Department during the recall period fell under the provisions of an entirely different set of statutes, namely § 9-1-1790, 9-1-1590, and 9-11-90.[73] 

Thus, as reflected at various points by the Committee in its Final Decision, the Court concludes that the Department had a rational basis by which to both implement its RIF through the establishment of 11 competitive areas and to offer its retirement opportunity to those employees unaffected by the RIF who were retirement eligible.[74]  Accordingly, the Court further concludes that the Appellants have failed to provide a sufficient basis upon which this Court may reverse or modify the Committee’s Final Decision under the provisions of § 1-23-380(5).

B.        THE MATERIALS CONSTITUTING “ATTACHMENT 1” TO THE APPELLANTS’ SUPPLEMENTAL BRIEF REPRESENTED NEW FACTS NOT CONSIDERED BY THE COMMITTEE, AND, THEREFORE, THIS COURT GRANTS THE DEPARTMENT’S MOTION TO STRIKE “ATTACHMENT 1” AND THE PORTIONS OF THE APPELLANTS’ BRIEF RELATED TO “ATTACHMENT 1”

 

As chronicled in Section II(E) above, the Appellants submitted materials designated as “Attachment 1” in support of the supplemental brief they filed with the Court on November 17, 2009.  On November 19, 2009, the Department filed its objection to the entirety of the materials designated by the Appellants as “Attachment 1” as well the portions of the Appellant’s supplemental brief related to the materials designated as “Attachment 1.[75] 

The Department moved to strike these materials under the provisions of ALC Rule of Procedure 46.  This rule, which is entitled “POWERS OF ADMINISTRATIVE LAW JUDGE,” explicitly authorizes this Court, albeit within the context of contested cases, to “hear and rule on objections and motions” and to “strike from the record objectionable evidence.”

The Department anchored its objections to these materials upon the provisions of S.C. Code § 1-23-380(4) (Supp. 2009) and ALC Rule of Procedure 36(G).  Section 1-23-380 is entitled “Judicial review upon exhaustion of administrative remedies,” and the first sentence of § 1-23-380(4) provides that the review conducted by this Court “must be confined to the record.”  ALC Rule of Procedure 36 is entitled “RECORD ON APPEAL,” and Rule 36(G), which is entitled “Review Limited to Record,” provides that this Court “will not consider any fact which does not appear in the record.”  The last sentence of the 2009 Revised Notes for Rule 36 further provides that this Court’s review “is limited to those facts appearing in the record.”  Additionally, as noted by the Department, South Carolina Appellate Court Rule [“SCACR”] 212(b), which this Court may apply in accordance with ALC Rule of Procedure 68, provides that “with the written consent of all attorneys of record, a party may supplement the Record on Appeal at any time before argument commences,” but, “[w]ithout such consent or after argument commences, a party desiring to supplement the Record on Appeal must move the appellate court for leave to do so.” 

After reviewing “Attachment 1” and the related portions of the Appellants’ supplement brief, this Court finds that the materials which comprised “Attachment 1” clearly represented and incorporated new facts which were not considered by the Committee in rendering its February 18, 2009 Final Decision.  This Court also finds that the Appellants made no effort to properly supplement the Record on Appeal in accordance with SCACR 212(b).  Thus, having reviewed the Department’s motion, the Appellants’ memorandum in opposition to the Department’s motion, and the authority cited by the Appellants within their memorandum, Stanley v. Kaufman, 171 S.E. 32 (S.C. 1933), this Court concludes that the documents which comprise “Attachment 1” are objectionable.  Consequentially, this Court GRANTS the Department’s motion to strike “Attachment 1” as well as the portions of the Appellants’ supplemental brief related to “Attachment 1.”

Alternatively, even if the materials which comprise “Attachment 1” and the portions of the Appellants’ supplement brief related to “Attachment 1” are not objectionable, this Court nonetheless concludes that the data reflected in these materials is not relevant to its review of the Committee’s February 18, 2009 Final Decision, and, accordingly, the Appellants have failed to provide a sufficient basis upon which this Court may reverse or modify the Committee’s Final Decision under the provisions of § 1-23-380(5).

VI.       ORDER OF THE COURT AFFIRMING THE DECISION OF THE STATE EMPLOYEE GRIEVANCE COMMITTEE

 

            Thus, for all of the foregoing reasons, this Court determines that the administrative findings, inferences, conclusions and decisions rendered by the State Employee Grievance Committee in its February 18, 2009 Final Decision did not prejudice the Appellants’ substantial rights, and this Court further determines that the Appellants’ arguments do not provide a sufficient basis by which it may reverse or modify any aspect of the Committee’s February 18, 2009 Final Decision under the provisions of § 1-23-380(5). 

Accordingly, this Court denies the Appellants’ instant appeal and denies the relief demanded by the Appellants in their principle brief, in their argument to this Court, and in their supplemental brief.  Therefore, IT IS HEREBY ORDERED that the Final Decision of the State Employee Grievance Committee issued February 18, 2009 is AFFIRMED. 

AND IT IS SO ORDERED.

 

 

                                                                        _______________________________

                                                                        John D. McLeod, Judge

                                                                        S.C. Administrative Law Court

 

June 2, 2010

Columbia, South Carolina

 



[1] In addition to the seven (7) Appellants whose names appear in the case caption, the following 13 individuals are Appellants in the instant matter:  Bernetha L. Culbreath, William K. Dreyer, Jacqueline D. Farr, Ruth Fritts, Nancy Glenn, Etta Jane Jones, Geneva M. Martin, Mary H. McCabe, Beverly McClanahan, Max D. Randolph, Carolyn McIver Smith, Maggie G. Williams, and Paula Woodlief.

 

[2] See Appellants’ July 16, 2009 Principle Brief, p. 1.

[3] For the sake of clarity, the Court observes that the Department implemented its June 1, 2003 RIF through two (2) items:  a RIF policy developed by the Department’s Division of Human Resources and a RIF plan.  Executive Director Jon Ozmint presented the Department’s RIF plan in the form of a March 28, 2003 letter to State Human Resources Director Samuel L. Wilkins. (R. pp. 1626 – 31).  As reflected by the last page of Director Ozmint’s March 28, 2003 letter to Mr. Wilkins, Director Ozmint included four (4) attachments to the RIF plan detailed in his letter.  First, Director Ozmint included a copy of the Department’s RIF policy, issued March 14, 2003, designated as Policy Number ADM-11.05 (R. pp. 1633 – 40) and a March 14, 2003 letter addressed to the Director of the Department’s Division of Human Resources, John Near, from Chris Byrd, OHR’s Assistant Director, in which Mr. Byrd advised Mr. Near that OHR had approved Policy Number 11.05. (R. p. 1632). Second, Director Ozmint attached materials identified as “Listing of Competitive Areas, Areas Map, and Competitive Job Classifications & Classification Series.” (R. pp. 1641 – 43).  Third, Director Ozmint attached a “Listing of Positions being eliminated and Employees eligible for Bumping in Each Competitive Area.” (R. pp. 1644 - 59).  Fourth, Director Ozmint attached a “Sample Letter – Notification of Reduction-In-Force,” a model letter by which the Department would notify employees whose positions were identified for elimination of their potential lay-off. (R. pp. 1953 – 59).  On March 28, 2003, Christopher Poore, an OHR Human Resources Consultant, acknowledged OHR’s receipt and review of SCDC’s RIF plan, which included the Department’s RIF policy, as submitted by Director Ozmint. (R. pp. 1926 – 27).  The Department provided the Court with a compilation of these documents in the sequence described above in support of its principle brief.  See the Department’s October 7, 2009 Principle Brief, Exhibit A.

[4] Mr. Nickles and Ms. Guffey have represented each of the 20 Appellants since the inception of this matter.  Mr. Summers has represented the Department since May 2006.  The Court extends its compliments to counsel for their respective competence, scholarship, industry, and decorum.

[5] The Court provides its decision regarding this issue in Section V(A) below.

 

[6] The Court provides its decision regarding this issue in Section V(B) below.

[7] See Appellants’ July 17, 2009 Principle Brief, p. 3.

[8] Id., pp. 3 – 5, paras. 1 – 9.

 

[9] Id., pp. 5 – 8, paras. 10 – 18.

 

[10] Id., pp. 8 – 11, paras. 19 - 27.

 

[11] Id., pp. 14 – 18.

 

[12] Id., pp. 19 – 23.

 

[13] Id., pp. 23 – 24.

 

[14] Id., pp. 24 – 26.

[15] See Appellants’ Principle Brief, pp. 3 – 4, para. 1.  In its Finding of Fact No. 4, the Committee acknowledged that the Appellants contended “that during the development and administration of the RIF plan the PUSD was not treated as a single ‘unified’ school district as required by law.” (R. p. 12).

[16] See Appellants’ Principle Brief, p. 4, para. 3.

 

[17] Id., p. 4, para. 5.

 

[18] Id.

 

[19] Id., p. 4, para. 6.  While the Appellants focused on Director Ozmint’s role, the record clearly reflects that John Near, who in 2003 served as the Director of the Department’s Division of Human Resources, drafted the Department’s RIF policy and prepared its RIF plan.  Further, Mr. Near testified that OHR representatives worked with him and provided input into the final version of the Department’s RIF policy (R. pp. 700 – 06), and Mr. Near testified that OHR representatives provided specific input into the final version of the RIF plan. (R. pp. 732 – 48).

 

[20] Id., p. 5, paras. 7 – 8.

[21] Id., p. 5, paragraph 9.  While the Appellants did not claim in their principle brief that the Department retaliated against them in the manner by which it constructed and implemented its 2003 RIF, this passage from their principle brief hints at such a claim.  In its Finding of Fact No. 17, the Committee recognized that the Appellants contended “that SCDC, through the RIF plan, arbitrarily and capriciously retaliated against SCDC educators who took legal action [Abraham v. PUSD No. 1 & S.C. Dep’t of Corr., 538 S.E.2d 656 (S.C. Ct App. 2000)] to compel SCDC to provide compensation in accordance with law.” (R. p. 14).  As explained in Section IV(D) below, however, this Court concludes that the Appellants abandoned their retaliation claim in their appeal.

 

[22] Id., p. 22, Section IV.  In its Finding of Fact No. 7, the Committee acknowledged the identical argument offered by the Appellants, namely that they contended “the PUSD School Board was not involved in development of the RIF plan as required by law and the district superintendent was merely informed of the action.” (R. p. 13).

 

[23] Id., p. 24, Section I(a).  The Appellants also cited Brown v. S.C. State Bd. of Educ., 391 S.E.2d 866 (S.C. 1990), in support of this argument.  This Court concludes that Brown is inapplicable to this case, as our Supreme Court in Brown found that S.C. Code Reg. 43-59 (Supp. 1989), a regulation which allowed state officials to withdraw a teacher’s certification without notice and an opportunity to be heard, was unconstitutional.  In short, the facts in Brown are entirely different from the facts here, because no action undertaken by the Department in formulating or implementing its 2003 RIF deprived any of the Appellants their teaching credentials.

 

[24] Id., p. 24, Section II.  The Appellants cited Brown, as well as Johnson v. Spartanburg County Sch. Dist. No 7, 444 S.E.2d 501 (S.C. 1994), in support of this argument.  This Court concludes that Johnson is inapplicable to this matter, as the issues on appeal in Johnson concerned the non-renewal of a teacher’s employment contract and the interpretation of the Teacher Employment and Dismissal Act. No action undertaken by the Department in formulating or implementing its 2003 RIF resulted in the non-renewal of a teacher’s employment contract.  The Appellants also invoked § 24-25-90 in support of this argument.  In its Finding of Fact No. 6 (R. p. 12), the Committee acknowledged that the Appellants contended that “the RIF plan failed to take into account experience and credentials such as degrees, certificates, and positions held, which are uniformly applied in the field of education.”

 

[25] See note 22 above.

 

[26] See note 15 above.

[27] See Appellants’ Principle Brief, p. 5, para. 10.  In an associated footnote, the Appellants observed that, before Director Ozmint’s tenure began, “SCDC had experienced the closing of the Central Correctional Institution (CCI) in Richland County.” Id., p. 5, n. 2.  As recounted by the Appellants, “[r]ather than restrict employment opportunities geographically, SCDC permitted all affected employees to obtain positions at other facilities,” and, “[a]s a result, employees interested in maintaining employment with SCDC found positions.” Id.  However, as described by Mr. Near, the Court finds that the circumstances which allowed the agency to place SCDC employees affected by the closure of CCI differed dramatically from the circumstances which compelled SCDC to conduct its 2003 RIF. (R. pp. 723 – 35).

 

[28] See Appellants’ Principle Brief, p. 5, para. 11.

 

[29] Id., p. 5, para. 12.

[30] Id., pp. 5 – 6, paras. 13 - 14.  Later, the Appellants stated each of them “would have been willing to perform services outside the geographic region created for the RIF in order to retain employment,” and they provided examples of various Appellants who “obtained employment outside the geographic region from which they were separated.” Id., pp. 7 – 8, para. 18.  While it is uncontested that various Appellants found work outside of the geographic region from which they were separated, this Court concludes that such facts are not and were not relevant to whether the Department complied with its own RIF policy, state law and regulations, and our state’s constitution by its decision to divide the agency into 11 competitive areas as part of its agency-wide RIF plan effective June 1, 2003.  Moreover, this Court concludes that such facts have no bearing on the legitimate fiscal crisis confronted by SCDC in early 2003 as recognized by the Committee in its Final Decision. (R. p. 16).

 

[31] See Appellants’ Brief, pp. 6 – 7, paras. 15 – 16.

 

[32] Id., pp. 14 – 16, Section I.

 

[33] Id., pp. 20 – 21, Section I.

[34] Id., p. 21.

 

[35] Id., p. 22, Section V.

 

[36] See the Committee’s Findings of Fact Nos. 1 – 9. (R. pp. 12 – 13).

 

[37] The Appellants offered the same arguments to the Committee as reflected by the Committee’s Findings of Fact Nos. 4 and 5 (R. p. 12).

 

[38] See Appellants’ Principle Brief, p. 7, paragraph 17.

 

[39] Mr. Near testified regarding his understanding that “[t]he state has a rule that talks about you can’t involuntarily move people more than … I think it’s around thirty miles or to a nearest facility.” (R. p. 715).

[40] See Appellants’ Principle Brief, p. 6, para. 15.

[41] Again, as explained in Section IV(D) below, this Court concludes that the Appellants abandoned their retaliation claim in their appeal.  See also note 21 above.

[42] See Appellant’s Principle Brief, pp. 8 – 9, para. 19.

 

[43] Id., pp. 9 - 10, paras. 20 – 21.

 

[44] Id., p. 10, para. 22.  The Appellants later argued that, by purportedly ignoring the guidance provided by this question and answer from OHR’s website, the Department violated a “right” allegedly secured to them under South Carolina precedent, namely that “[a]n employing agency may not disregard procedural legislation to remove, demote, or otherwise deprive an employee of his salary or position.” See Appellants’ Principle Brief, p. 26, Section II(b).  This Court concludes that no such “right” exits under South Carolina precedent.  Moreover, this Court concludes that the Committee properly determined that the Department “did not violate any internal policies or procedures or any guidelines established by [OHR].” (R. p. 17).

 

[45] Id., p. 10, para. 23.  According to the Appellants, the Department implemented the two (2) “retirement opportunities” on July 18, 2003 and March 25, 2004.  However, this Court’s review of the record reveals that the Department implemented only one (1) retirement opportunity during the RIF recall period which ran from June 1, 2003 to May 31, 2004.  This Court’s review of the record also reveals that the retirement opportunity purportedly offered by the Department on March 25, 2004 was not a retirement opportunity at all.  Instead, on March 25, 2004, the Department issued a memorandum which announced a retirement opportunity with effective dates between June 18 and July 1, 2004, clearly after the conclusion of the RIF recall period on May 31, 2004. (R. p. 2572). Ms. Patricia Thrailkill, the Assistant Director of the Department’s Division of Human Resources, testified that the retirement opportunity discussed in the agency’s March 25, 2004 memorandum constituted “the same type of opportunity but offered in a different fiscal year.” (R. p. 971).

 

[46] Id.

 

[47] Id., pp. 10 – 11, para. 24.

 

[48] Id.

 

[49] Id., p. 11, para. 25.

[50] Id., p. 11, n. 3.

 

[51] Id., p. 11, para. 26.

 

[52] Id., p. 17, Section II(i).

 

[53] Id., p. 18, Sections III, IV, and V.

[54] Id., p. 21, Section III.  The Appellants referenced the post-RIF duties assigned by the Department to Appellants Nancy Glenn, Mary McCabe, and Beverly McClanahan.  Earlier in their principle brief, the Appellants stated that Ms. Glenn, Ms. McCabe, and Ms. McClanahan “each testified that after the RIF, they performed their former education duties while being paid as security officers,” that “SCDC did not have signed position descriptions for” them, and that “Ms. Glenn received a memorandum before the [effective date of] the RIF that she would continue her library services in her new position.” Id., p. 11, para. 27.  However, this Court’s review of the record yields the conclusion that the Appellants did not provide a complete narrative of the post-RIF duties fulfilled by these three (3) Appellants.  For example, the Appellants neglected to mention that the EPMS issued to Ms. Glenn covering the period of time immediately after the RIF’s effective date of June 1, 2003 clearly stated that Ms. Glenn had “made a wonderful transition from librarian to [correctional] officer.” (R. pp. 1253 and 2991).  Finally, the Appellants invoked the post-RIF duties the Department assigned to Appellants Glenn, McCabe, McClanahan, and James “Cal” Bell, to argue that the Department violated a “right” to particular compensation allegedly secured to them under the South Carolina Court of Appeals’ decision in Abraham v. PUSD No. 1 & S.C. Dep’t of Corr., 538 S.E.2d 656 (S.C. Ct App. 2000). (See Appellants’ Principle Brief, p. 25, Section I(b)).  However, this Court again concludes that no such “right” legitimately exits under Abraham, and the Committee properly considered these facts when it ruled in the Department’s favor.

 

[55] See Appellants’ Principle Brief, p. 22, Section V.

 

[56] Id., p. 22 – 23, Section VI(b).  In Section VI(a), the Appellants argued that the Department “filled vacancies following the RIF without providing priority consideration to RIF’ed educators.”  However, this Court’s review of the record reveals that the Department recalled Ms. McCabe back to a certified educator position approximately one (1) month after she had accepted a correctional officer position. (R. pp. 248 – 49, 256 – 57, and 261).

[57] Id., p. 24, Section I(b).

[58] See Appellants’ Principle Brief, pp. 16 – 17, Section II(e); p. 18, Sections III and V; and p. 24, Section I.

[59] As explained in note 3 above, Director Ozmint’s “cover letter to OHR” consisted of his March 28, 2003 letter to OHR Director Wilkins within which Director Ozmint presented SCDC’s RIF plan. (R. pp. 1626 – 31).  The Appellants did not address this specific conclusion rendered by the Committee in any of the materials they submitted in support of their appeal.

[60] See Appellants’ Supplemental Brief, pp. 4 and 6.

 

[61] The Department submitted a transcript of the entire October 28, 2009 hearing as an exhibit in support of its supplemental brief. See the Department’s Supplemental Brief, Exhibit B. See also Transcript of October 28, 2009 Oral Argument, p. 12, lines 12 – 19.

[62] See notes 23 and 24 above.

 

[63] See Appellants’ Principle Brief, pp. 23 – 24.  These are the only pages from the Appellants’ principle brief in which the term “equal protection” appears.  Regarding the manner by which the Department implemented its retirement opportunity during the RIF recall period, the Appellants argued as follows:

 

During the recall period following the RIF, SCDC allowed employees choosing to retire to return following a “break in service” without allowing the Appellants the opportunity to recall.  Appellants were “covered employees” entitled to full protection of the law during their recall period.  Accordingly, the preferential treatment afforded to employees returning after voluntary separation during this period deprived Appellants of their rights as “covered employees” and constituted a violation of equal protection guaranteed by Article I, § 3 [of the South Carolina Constitution]. Id., p. 24.

[64] See Transcript of October 28, 2009 Oral Argument, pp. 20 – 23.

[65] See Transcript of October 28, 2009 Oral Argument, pp. 33 – 36.

 

[66] See Appellants’ Supplemental Brief, pp. 3 – 4.

 

[67] Id., p. 5.

[68] See the Department’s Supplemental Brief, pp. 1 – 2. Within its supplemental brief, the Department also accurately cited passages from the argument entertained by the circuit court on December 11, 2006 since the transcript of the circuit court’s December 11, 2006 hearing had been included by OHR in Committee Exhibit #1 and submitted to the Committee. (R. pp. 2320 – 57). See also the Department’s Supplemental Brief, p. 2, n. 2 and 3.

[69] See Transcript of October 28, 2009 Oral Argument, p. 6.

 

[70] See Transcript of October 28, 2009 Oral Argument, pp. 14 – 15 and 24.

[71] The Committee recognized this distinction by concluding that the language from this paragraph “indicates that this is a possibility, not a promise.” See the Committee’s Final Decision, Conclusion of Law # 4. (R. p. 17). 

 

[72] See Appellants’ Principle Brief, p. 23.  During oral argument, Appellants’ counsel also argued that a “Frequently Asked Question” posted by OHR on its website should have the effect of a regulation or even a statute. See Transcript of October 28, 2009 Oral Argument, pp. 25 – 26.  However, the Committee properly determined that it “did not violate any internal policies or procedures or any guidelines established by [OHR].” (R. p. 17).  See also note 44 above.

 

[73] See Section IV(C)(3) above.

 

[74] See the Committee’s Final Decision, Conclusions of Law # 4 and # 5. (R. pp. 16 – 17).

 

[75] A total of three (3) documents comprised “Attachment 1.”  The first two (2) documents of “Attachment 1” consisted of standard 8 ½ by 11 inch pieces of paper while the third document consisted of what appears to be two (2) 8 ½ by 11 inch pieces of paper attached to one another by adhesive tape.  The first document in “Attachment 1” was entitled “Legend and List of Websites Used,” while the second and third documents appeared to be spreadsheets which reflected information purportedly relevant to the case under review.  The second document was entitled “Locations for Distances for ‘All Broad River Road Complex Institutions and Divisions’,” and the third document was entitled “Distance between Reduction-In-Force-Competitive Areas and Locations.”  See the Department’s November 19, 2010 Objection and Motion, pp. 2 – 3.


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