A hearing was conducted on March 8,
2006 at the Court in Columbia, South Carolina. Both the Petitioner and
Respondent were present and were represented by legal counsel. Testifying at
the hearing was the Petitioner and Larissa Huff, an employee of Respondent.
Also, during the hearing there was admitted into evidence pages 1 through 100
of Respondent’s administrative file in this matter and a one-page document
containing definitions of "Public Service,” “Previously Withdrawn Service”
and “Nonqualified Service.”
The
Court has jurisdiction to conduct this hearing de novo and issue a final
decision pursuant to the South Carolina Retirement Systems Claims Procedures
Act, specifically S.C. Code Ann. § 9-21-60 (Supp. 2005). Based upon the testimony and other evidence of record,
this Court affirms Respondent’s final agency determination that the cost for
Petitioner to purchase the five years of Nonqualified Service is $155,750.00.
FINDINGS
OF FACT
Having observed the witnesses and exhibits
presented at the haring and closely passed upon their credibility, taking into
consideration the burden of persuasion of the parties, I make the following
findings of fact by a preponderance of the evidence:
1. Notice of the date, time, place
and nature of the hearing was timely given to the parties.
2.
The City of Union and the County of Union participate as employers in the
Retirement System.
3. As a
condition of his employment with the City of Union, Petitioner is a member of
the Retirement System. As of August 12, 2004, Petitioner had less than five
years of earned service in the Retirement System.
Petitioner’s South Carolina Public Service
(1982-1991)
4. For the periods of June 1, 1982
through June 30, 1982, July 1, 1982 through May 31, 1986, January 2, 1987 through
June 30, 1987 and July 1, 1987 through January 2, 1991, Petitioner made
contributions to the Retirement System while employed with Union County and the City of Union. Petitioner established earned service credit for 8 years,
0 months, and 2 days for these periods.
5.
On April 5, 1991, Petitioner withdrew all of the contributions that he had made
to the Retirement System during his 8 years, 0 months and 2 days of earned
service. This is referred to in this Order as Petitioner’s South Carolina
Withdrawn Service (SCWS).
Petitioner’s North Carolina Public Service
(1991-1997)
6.
From April 2, 1991 through November 18, 1997, Petitioner was employed as the Administrator of the Town of Long View, North Carolina. His salary was $43,596.43 when he left
his employment there on November 18, 1997.
7.
Petitioner made contributions to the North Carolina Local Governmental
Employees’ Retirement System from October 14, 1991 through November 13, 1997.
He established Public Service credit in that system for 6 years, 7 months and
12 days. In the fall of 2004, Petitioner withdrew his retirement account
balances with the North Carolina Local Governmental Employees’ Retirement
System preparatory to transferring them into Individual Retirement Accounts and
with South Carolina’s retirement system.
Petitioner’s South Carolina Public Service (2000-2004)
8.
In 2000, Petitioner was elected mayor of the City of Union. On August 12,
2004, his salary as mayor was $6,610.20.
9.
Sometime subsequent to October 21, 2004, but prior to January 10, 2005, the
City of Union changed its form of government from a part-time mayor to a
full-time mayor. Petitioner was appointed to the full-time mayor position and
his salary was increased from $6,610.20 to $89,000.00 on January 10, 2005.
Petitioner continues to serve in that capacity.
Petitioner’s
Requests to Respondent to purchase credit for his SCWS and his North Carolina Public Service (NCPS)
10. On August 20, 2004, Petitioner contacted Respondent to request information
on the costs to purchase his SCWS and his NCPS.
11.
On October 4, 2004, Respondent informed Petitioner that he could purchase his
SCWS upon payment of $18,995.95 and that he had until April 2, 2005 to purchase
his SCWS at this cost.
12. On October 18, 2004,
Respondent informed Petitioner that he could purchase the NCPS upon payment
$35,562.91. This amount was based upon Petitioner’s highest fiscal year
salary earned in South Carolina between 1982 through 1991 and calculated with
the assumption that Petitioner would purchase his SCWS.
13. On October 21, 2004,
Petitioner notified Respondent that he wanted to purchase his NCPS and five
years of NQS (service time not worked). Petitioner further notified
Respondent that he would purchase his SCWS at a later date.
14. On October 28, 2004,
Respondent notified Petitioner that he could purchase his NCPS upon payment of
$6,998.03 based upon his then current salary of $6,610.20. The letter further
stated “[Y]ou are not eligible to purchase nonqualified service until you have
reached 5 years of earned service.” The service in North Carolina constituted
“purchased service,” not earned service. 15. No invoice was provided to
Petitioner to purchase the NQS since Petitioner did not have the requisite five
years of earned service, nor would the NCPS (after purchase) count toward the
earned service requirement.
16.
On November 24, 2004, Petitioner paid $6,998.03 to Respondent to purchase the
NCPS.
17. On November 29, 2004,
Respondent mistakenly advised Petitioner that subsequent to the purchase of the
NCPS, he had met the requirement for five years of earned service and that
Petitioner could request an invoice to purchase the five years of NQS.
18.
However, on December 8, 2004, Respondent correctly advised Petitioner that he
must have five years of earned service in his account before he could purchase
the NQS and that the purchase of the NCPS did not qualify as earned service.
At that time, Petitioner told Respondent that he intended to purchase the SCWS
and after its purchase he would submit a request to purchase the NQS.
19.
On December 14, 2004, Respondent told Petitioner that he could purchase
a portion of his SCWS sufficient to satisfy the earned service requirement
needed to purchase the NQS.
20. On December 15, 2004, Petitioner wrote Respondent requesting it initiate a
rollover of funds from his Individual Retirement Account into the Retirement
System sufficient to purchase his SCWS.
21. Respondent advised Petitioner
by letter dated December 29, 2004 that it had received his request for a
transfer of funds from his Individual Retirement Account to purchase his SCWS but that additional documentation was needed before it could proceed with
the transfer. Petitioner did not respond to the letter nor provide the
requested documentation to Respondent prior to his salary increase on January
10, 2005 from $6,610.20 to $89,000.00.
22. On March 17, 2005, Petitioner
commissioned a rollover of $18,995.95 from his Individual Retirement Account
with Wachovia Securities to purchase the SCWS (8 years, 0 months, and 2 days).
After this purchase was consummated, Petitioner had exceeded five years of earned
service in his account and was eligible to purchase the NQS.
23. When Wachovia Securities made
the transfer of funds from Petitioner’s Individual Retirement Account to the
Retirement System, it erroneously overpaid $59,655.16. On April 7, 2005,
Wachovia Securities notified Respondent of the erroneous overpayment, and on
April 8, 2005, Respondent informed Wachovia Securities that it would return the
funds within two weeks. Respondent returned the funds on April 21, 2005.
24. On May 6, 2005, Petitioner
requested an invoice to purchase the NQS.
25. Respondent notified Petitioner
on May 25, 2005 that based upon his present salary of $89,000.00, he was
authorized to purchase five years of NQS upon payment of $155,750.00.
26. Petitioner
appealed the May 25, 2005 determination by Respondent. On August 12,
2005, the Hon. Peggy Boykin, CPA, and Director of
Respondent, issued a written decision holding that the invoice issued on May
25, 2005 setting a cost of $155,750 to purchase the NQS
was correct.
27. On
September 10, 2005, Petitioner filed a request for a contested case hearing.
DISCUSSION
Base Salary
The
issue in this case concerns the amount Petitioner must pay to purchase five
years of NQS in the Retirement System. Petitioner maintains that the cost
should be based upon his former salary of $34,091.98 (his career highest fiscal
year salary while employed between 1982 and 1991), instead of $155,750.00,
which is based upon his salary of $89,000.00 when he made the request.
Petitioner paid $6,998.03 to Respondent on November 24,
2004 to purchase his NCPS (6 years, 7 months and 12 days); this amount was
determined based upon his salary of $6,610.20 at the date of the request. On March 17, 2005, Petitioner paid $18,995.95 to
purchase his SCWS (8 years, 0 months, and 2 days). Respondent had stated in
its October 4, 2004 correspondence that Petitioner had until April 2,
2005 to purchase his SCWS at this cost. After Petitioner purchased the SCWS, for the first time he had the requisite five
years or more of earned service in his Retirement System account and was
eligible to purchase the NQS under S.C. Code Ann. § 9-1-1140(E), (J)
(Supp. 2005).
On
May 6, 2005, almost four months after his salary had increased from $6,610.20
to $89,000, Petitioner made the request to purchase the NQS. The cost for
purchasing NQS in this State is 35% of the greater of a member’s current
salary or the member’s career highest fiscal year salary. S.C. Code Ann. §
9-1-1140(E) (Supp. 2005). Since Petitioner’s then current salary of $89,000
was greater than his career highest fiscal year salary of $34,091.98,
Respondent was correct in its determination that the cost to purchase the five
years of NQS was $155,750.
Equitable Estoppel
Petitioner
asserts that he did not receive proper advice from Respondent. Furthermore, he
argues that he was ready, willing and able to purchase the NQS prior to his
salary increase and would have done so if he had been properly advised.
Accordingly, he argues that Respondent should be estopped from using his salary
of $89,000 as a base to determine the purchase cost of the NQS.
As
the party asserting estoppel, Petitioner bears the burden of proof. Davis v. Sellers, 229 S.C. 81, 91 S.E.2d 885 (1956). Based upon the facts
herein and the evidence in the record, Petitioner has not sustained his burden
of proof.
Our
Supreme Court has stated that, as a general rule, estoppel does not lie against
the government to prevent the due exercise of its police powers or to thwart
the application of public policy. Grant v. City of Folly Beach, 346
S.C. 74, 551 S.E.2d 229, 232 (2001) (citing South Carolina Dep't of Social
Services v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980)). However, this does
not mean that estoppel cannot apply against a government agency. Id. at 232 (citing Landing Dev. Corp. v. City of Myrtle Beach, 285 S.C. 216,
329 S.E.2d 423 (1985)). To prove estoppel against the government, the relying
party must prove: (1) lack of knowledge and of the means of knowledge of the
truth as to the facts in question, (2) justifiable reliance upon the
government's conduct, and (3) a prejudicial change in position. Id. (citing Midlands Utility, Inc. v. South Carolina Dep't of Health and Envtl.
Control, 298 S.C. 66, 378 S.E.2d 256 (1989)).
A
governmental body is not immune from the estoppel doctrine where its officers
or agents act within the proper scope of their authority, but the government
cannot be estopped by the unauthorized or erroneous conduct or statements of
its officers which have been relied on by a third party to his detriment. Goodwine
v. Dorchester Dept. of Social Services, 336 S.C. 413, 519 S.E.2d 116 (Ct.
App. 1999) (citing Service Mgmt. Inc. v. State Health & Human Servs.
Fin. Comm’n, 298 S.C. 234, 379 S.E.2d 442 (Ct. App. 1989)); see also Service Mgmt, Inc., 379 S.E.2d at 444 (nursing home was required to
repay Medicaid funds erroneously calculated by a state employee who had no
authority to change the benefit amount); Berkeley Elec. Co-op, Inc. v. Town
of Mount Pleasant, 308 S.C. 205, 417 S.E.2d 579 (1992) (Town of Mount
Pleasant not estopped from denying validity of a franchise agreement where the
franchise agreement was entered into in violation of statute).
In South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357 S.E.2d 187
(Ct. App. 1987), appeal dismissed 294 S.C. 80, 362 S.E.2d 646 (1987),
the South Carolina Court of Appeals held that a Coastal Council employee did
not have authority to represent to the Vogels that they did not need a permit
to build a deck on their beach house seaward of the critical line.
Construction of the deck in the critical area of the primary oceanfront sand
dune without a permit constituted a violation of the Coastal Zone Management
Act. Id. at 188. The court held that the Council could not be estopped
by the erroneous and unauthorized actions of its employee from ordering the
removal of the illegally-constructed deck.
Similarly,
the South Carolina Court of Appeals held that the City of Rock Hill could not
be estopped where a zoning administrator had approved a parking area in
violation of a city zoning ordinance. McCrowey v. Zoning Bd. of Adjustment
of City of Rock Hill, 360 S.C. 301, 599 S.E.2d 617 (Ct. App. 2004). The
court held that the zoning administrator lacked authority to alter or waive the
zoning ordinance. Id. at 619-620.
On
November 29, 2004, a representative of Respondent mistakenly advised Petitioner
that subsequent to the purchase of the NCPS on November 24, 2004, he could
request an invoice to purchase five years of NQS. This advice was erroneous and
plainly contravened the statutory requirements for purchasing NQS. S.C. Code
Ann. § 9-1-1140(E), (J) (Supp. 2005). Thus, Petitioner’s purchase on November 24,
2004 of the NCPS could not as a matter of law increase the amount of earned
service in Petitioner’s Retirement System account.
An
unauthorized statement made by an employee of Respondent is not sufficient to
estop Respondent from invoicing Petitioner with the correct purchase cost for
the NQS. Like the Coastal Council employee in Vogel, Respondent’s
employee lacked the authority to waive or alter statutory requirements. State
law requires that Petitioner have five years of earned service in his
Retirement System account before he is eligible to purchase NQS. Neither
Respondent nor any of its employees has the authority to change any statutory
requirement.
Furthermore,
Petitioner could not have justifiably relied on the misstatements by
Respondent’s employee. Petitioner had earlier been advised in writing on
October 28, 2004, that he needed to have five years of earned service before he
would be eligible to purchase NQS. Significantly, on December 8, 2004, a mere
nine days after Respondent’s employee gave the erroneous advice, another
employee of Respondent clearly informed Petitioner that he must purchase his
SCWS before he would be eligible to purchase the NQS. At that time, Petitioner
indicated that he would purchase his SCWS and thereafter submit his request to
purchase the NQS. This information was given to Petitioner over a month before
his salary increased to $89,000 on January 10, 2005.
In
any event, Petitioner had the means to determine if statements made to him by
Respondent’s representative were accurate. “Everyone is
presumed to have knowledge of the law and must exercise reasonable care to
protect his interests.” In re Estate of Holden, 343 S.C. 267, 539 S.E.2d 703 (2000), quoting Smothers v.
U.S. Fidelity and Guar. Co., 322
S.C. 207, 210-211, 470 S.E.2d 858 (Ct.
App. 1996).
Moreover,
Petitioner’s argument that he had funds available to purchase the SCWS and the
NQS prior to his salary increase is irrelevant. He did not take the necessary
steps to purchase the SCWS and the NQS prior to his salary increase on January
10, 2005, and even if he had, his retirement account did not have the required
earned service until the purchase of the SCWS on March 17, 2005, over two
months after his salary had increased.
Petitioner
also asserts that, but for the Retirement System’s delay, he would have
purchased his SCWS and the NQS before his salary increased to $89,000 on January
10, 2005. The record, however, does not show an unreasonable delay on the part
of Respondent.
Petitioner
initially requested the cost to purchase the SCWS and the NCPS on August 20,
2004. The Retirement System issued its invoice for the SCWS on October 4,
2004. This invoice was valid until April 2, 2005. Petitioner could have purchased his SCWS at any time between October 4, 2004 and April 2, 2005. He did
not purchase his SCWS until March 17, 2005. There is no evidence to show that
Respondent unreasonably delayed Petitioner in purchasing his SCWS or that the
processing time for the purchase was unreasonable.
The
Retirement System issued its first invoice for the NCPS on October 18, 2004 in
response to Petitioner’s August 20, 2004 request. Petitioner did not elect to
utilize this invoice. By letter dated October 21, 2004, Petitioner stated that
he wanted to delay purchasing the SCWS so that he could purchase the NCPS and
the NQS at his lower current salary of $6,610.20. Exactly one week later, on
October 28, 2004, Respondent issued its second invoice for the NCPS and advised
Petitioner that he did not have the five years of earned service needed to
become eligible to purchase the NQS.
On
November 24, 2004, Petitioner elected to purchase the NCPS of 6 years, 7 months
and 12 days pursuant to the cost set forth in Respondent’s invoice dated
October 28, 2004. There was no unreasonable delay by Respondent in the
transaction involving the purchase of the NCPS by Petitioner.
Although
Petitioner received erroneous advice on November 29, 2004, he received correct
information from Respondent more than a month before his salary increased to
$89,000 on January 10, 2005. Thus, Respondent did not unreasonably delay
Petitioner’s purchase of the SCWS and the NQS.
Petitioner
also asserts that the March, 2005 overpayment sent by Wachovia Securities to
Respondent for the SCWS purchase, which Respondent held for several weeks
before returning, shows that he was ready, willing and able to purchase the NQS
at that time. There is no evidence, however, that the overpayment was to be
used to purchase the NQS. Furthermore, there is no evidence that Respondent’s
acceptance of the overpayment delayed Petitioner’s purchase of his SCWS or the
NQS. Moreover, because the March, 2005 overpayment occurred after Petitioner’s
salary increase, it does not show that Petitioner was ready, willing and able
to consummate his SCWS and NQS purchases before his salary increased on January
10, 2005. The overpayment did not in any way prevent Petitioner from
purchasing his SCWS or from obtaining an invoice for the NQS before January 10,
2005.
Based
on the foregoing, Petitioner has failed to sustain his burden of showing that
Respondent should be estopped to require the payment of $ 155,750 for
Petitioner’s purchase of five years of NQS.
May 25, 2005 Invoice for the
Nonqualified Service
On
May 6, 2005, Petitioner requested an invoice for the NQS. At that time he was
eligible to purchase it because he had more than five years of earned service
in his Retirement System account. Accordingly, Respondent issued a service
purchase invoice to Petitioner for the NQS. Pursuant to S.C. Code Ann. §
9-1-1140(E), Respondent correctly issued the invoice for $155,750 based on
Petitioner’s salary of $89,000 at the time of the invoice request. Under §
9-1-1140(E), the cost is 35% of $89,000 for each year of NQS purchased: .35 X
$89,000 = $31,150. Because Petitioner wishes to purchase five years of NQS,
the cost is $31,150 X 5 or $155,750.
CONCLUSIONS OF
LAW
Based upon the
foregoing Findings of Fact, Discussion and the evidence, the Court concludes,
as a matter of law, the following:
General
1.
The South Carolina Retirement Systems Claims Procedures Act provides the
exclusive means for resolution of disputes and claims with Respondent. S.C.
Code Ann. § 9-21-30 (Supp. 2005). A member may ask the Director to review an
initial decision that is unfavorable. The Director, or a person designated by
the Director, may conduct a conference concerning the claim prior to the
issuance of a final agency determination. The final agency determination must
be in writing if it is adverse to the claimant. S.C. Code Ann. § 9-21-50
(Supp. 2005). The claimant may seek review of the final agency determination
by requesting a contested case hearing before the Administrative Law Court.
S.C. Code Ann. § 9-21-60 (Supp. 2005).
2. The
Administrative Law Court assigns each filed case to an Administrative Law
Judge, who hears the case de novo in accordance with the rules of
procedure of the Administrative Law Court. S.C. Code Ann. § 9-21-60 (Supp.
2005); S.C. Code Ann. § 1-23-600 (Supp. 2005).
3. The
standard of proof in a contested case hearing before the ALC is a preponderance
of the evidence. See Anonymous v. State Bd. of Medical Examiners,
329 S.C. 371, 496 S.E.2d 17 (1998).
4. An
agency decision must be reached utilizing reasoned judgment and must be based
upon adequate determining principles and a rational basis. See Deese v. South Carolina State Bd. of Dentistry, 286
S.C. 182, 332 S.E.2d 539 (Ct. App. 1985).
5. The
trier of fact must weigh and pass upon the credibility of the evidence
presented. See S.C. Cable Television Ass’n v. Southern Bell Tel. and
Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who
observes a witness is in the best position to judge the witness’s demeanor and
veracity and evaluate his testimony. See McAlister v. Patterson,
278 S.C. 481, 299 S.E.2d 322 (1982), overruled on other grounds by Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004).
Retirement System Provisions
6. An
“active member” of the Retirement System is an employee who is compensated by
an employer participating in the System and who makes regular retirement
contributions to the System. S.C. Code Ann. § 9-1-10(2) (Supp. 2005). The
City of Union is a participating employer, and Petitioner has made regular
contributions to the Retirement System.
7. “Retirement
system” or “system” means the South Carolina Retirement System established
under S.C. Code Ann. § 9-1-20. S.C. Code Ann. § 9-1-10(28) (Supp. 2005).
8.
“Earned service” means: (a) paid employment as a teacher or employee of
an employer participating in the system where the teacher or employee makes
regular retirement contributions to the system; or (b) service rendered while
participating in the State Optional Retirement Program, the Optional Retirement
Program for Teachers and School Administrators, or the Optional Retirement
Program for Publicly Supported Four-Year and Postgraduate Institutions of
Higher Education that has been purchased pursuant to S.C. Code Ann. §
9-1-1140(F); or (c) service earned as a participant in the System, the S.C.
Police Officers Retirement System, the Retirement System for Members of the
General Assembly, or the Retirement System for Judges and Solicitors that is
transferred to or purchased in the System. S.C. Code Ann. § 9-1-10(9) (Supp.
2005).
9. Service
credit purchased under S.C. Code Ann. § 9-1-1140 (Supp. 2005) is not “earned
service” and does not count toward the required five or more years of earned
service necessary for benefit eligibility except: (1) earned service previously
withdrawn and reestablished, (2) service rendered while participating in the
State Optional Retirement Program, the Optional Retirement Program for Teachers
and School Administrators, or the Optional Retirement Program for Publicly
Supported Four-Year and Postgraduate Institutions of Higher Education that has
been purchased pursuant to § 9-1-1140(F); or (3) service earned as a
participant in the System, the S.C. Police Officers Retirement System, the
Retirement System for Members of the General Assembly, or the Retirement System
for Judges and Solicitors that is transferred to or purchased in the System.
S.C. Code Ann. § 9-1-1140(J) (Supp. 2005).
10.
An active member may establish service credit for any period of paid
public service, which is service as an employee of the government of the United States, a state or political subdivision of the United States, or an agency or instrumentality
of any of these. The cost to purchase Public Service is sixteen percent of the
member’s current salary or career highest fiscal year salary, whichever is
greater, for each year of credit purchased. S.C. Code Ann. § 9-1-1140(A)
(Supp. 2005); S.C. Code Ann. § 9-1-10(23) (Supp. 2005).
11.
An active member who has five or more years of earned service credit may
establish up to five years of Nonqualified Service. The cost to purchase
Nonqualified Service is thirty-five percent of the member’s current salary or
career highest fiscal year salary, whichever is greater, for each year of
credit purchased. S.C. Code Ann. § 9-1-1140(E) (Supp. 2005).
12. An
active member who previously withdrew contributions from the system may
reestablish the service credited to the member at the time of the withdrawal by
repaying the amount of the contributions previously withdrawn plus regular
interest from the date of the withdrawal to the date of repayment to the
system. S.C. Code Ann. § 9-1-1140(G) (Supp. 2005).
13.
The Retirement System is a creature of statute and, as such, can only
exercise that authority expressly delegated to it or delegated by necessary
implication. See City of Rock Hill v. South Carolina Dept. of
Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327
(1990).
14. The
cardinal rule of statutory construction is that the legislative intent must
prevail. Gardner v. Biggart, 308 S.C. 331, 417 S.E.2d 858
(1992). In ascertaining the legislative intent of a statute, the courts look
to the clear and unambiguous language of the statute. Defender Properties,
Inc. v. Doby, 307 S.C. 336, 415 S.E.2d 383 (1992). When such terms are
clear and unambiguous, there is no room for construction and courts are
required to apply them according to their literal meaning. Citizens for Lee
County, Inc. v. Lee County, 308 S.C. 23, 416 S.E.2d 641, 644 (1992).
Equitable Estoppel
15.
As a general rule, estoppel does not lie against the government to prevent
the due exercise of its police powers or to thwart the application of public
policy. Grant v. City of Folly Beach, 346 S.C. 74, 551 S.E.2d 229
(2001); South Carolina Dep't of Social Services v. Parker, 275
S.C. 176, 268 S.E.2d 282 (1980). This does not mean that estoppel cannot apply
against a government agency. Id. at 232. (citing Landing Dev. Corp.
v. City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423 (1985)).
16. To
prove estoppel against the government, the relying party must prove (1) lack of
knowledge and of the means of knowledge of the truth as to the facts in
question, (2) justifiable reliance upon the government's conduct, and (3) a
prejudicial change in position. Grant, 551 S.E.2d at 232. (citing Midlands Utility, Inc. v. South Carolina Dep't of Health and Envtl. Control,
298 S.C. 66, 378 S.E.2d 256 (1989)).
17.
A governmental body is not immune from the estoppel doctrine where its
officers or agents act within the proper scope of their authority, but the
government cannot be estopped by the unauthorized or erroneous conduct or
statements of its officers which have been relied on by a third party to his
detriment. Goodwine v. Dorchester Dept. of Social Services, 336 S.C.
413, 519 S.E.2d 116 (Ct. App. 1999) (citing Service Mgmt. Inc. v. State
Health & Human Servs. Fin. Comm’n, 298 S.C. 234, 379 S.E.2d 442 (Ct.
App. 1989).
18.
As the party asserting estoppel, Petitioner bears the burden of proving
estoppel against Respondent. Davis v. Sellers, 229 S.C. 81, 91
S.E.2d 885 (1956).
19. Respondent
cannot be estopped based on unauthorized statements by one of its employees. See South Carolina Coastal Council v. Vogel, 292 S.C. 449, 357
S.E.2d 187 (Ct. App. 1987), appeal dismissed 294 S.C. 80, 362 S.E.2d 646
(1987).
20. Petitioner’s
delay in purchasing his SCWS until after his salary had increased to $89,000
was not the result of justifiable reliance on erroneous advice from
Respondent’s employee. Petitioner had previously received correct written
advice that he needed to have five years of earned service before he would be
eligible to purchase Nonqualified Service, and he received correct advice from
another employee of Respondent nine days after the erroneous advice. After
receiving the correct advice, he had over a month before his salary increased
to purchase his SCWS. In any event, Petitioner was presumed to have knowledge
of the law. See In re
Estate of Holden, 343 S.C. 267, 539 S.E.2d 703 (2000).
Therefore, he had the means to determine the accuracy of any statements made to
him by Respondent’s employees.
21.
Respondent did not unreasonably delay Petitioner’s purchase of his SCWS
and NQS.
22. Petitioner
failed to sustain his burden of showing that Respondent should be estopped to
require the payment of $ 155,750 for Petitioner’s purchase of five years of
NQS.
23.
Earned service previously withdrawn and reestablished in the Retirement
System constitutes earned service under S.C. Code Ann. § 9-1-1140(J) (Supp.
2005). Prior to March 17, 2005, the date Petitioner remitted payment to
purchase 8 years and 2 days of his SCWS, Petitioner had less than the five
years of earned service required for eligibility to purchase NQS. S.C. Code
Ann. § 9-1-1140(E), (J) (Supp. 2005). Thus, Petitioner did not become eligible
to purchase NQS until after his salary had increased to $89,000 on January 10,
2005.
24. Respondent
properly determined that the cost for Petitioner to establish five years of NQS
was $155,750 based on his salary of $89,000 on May 25, 2005.
ORDER
For all of the
foregoing reasons,
IT IS HEREBY ORDERED that Petitioner’s cost to purchase the Nonqualified Service credit is
$155,750.
AND IT IS SO
ORDERED.
____________________________________
August 7, 2006 Marvin
F. Kittrell
Columbia, South Carolina Chief
Administrative Law Judge