Eargle v. Horry County

*458BURNETT, Justice,

dissenting:

For the reasons expressed in Judge Cureton’s dissent from the Court of Appeals’ opinion in this case, I respectfully disagree. I also wish to add some concerns of my own about what I perceive to be the majority’s overly broad construction of the relevant statutes.

The cardinal rule of statutory construction is that the Court is to ascertain and effectuate the actual intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 476 S.E.2d 690 (1996). This Court cannot construe a statute without regard to its plain and ordinary meaning, and may not resort to subtle or forced construction in an attempt to limit or expand a statute’s meaning. Paschal v. State of South Carolina Election Comm’n, 317 S.C. 434, 454 S.E.2d 890 (1995).

S.C.Code Ann. § 4-9-30(7) (Supp.1999) authorizes the county to

develop personnel system policies and procedures for county employees by which all county employees are regulated except those elected directly by the people, and to be responsible for the employment and discharge of county personnel in those county departments in which the employment authority is vested in the county government. This employment and discharge authority does not extend to any personnel employed in departments or agencies under the direction of an elected official....

(emphasis added). Section 4-9-650 provides that “[w]ith the exception of organizational policies established by the governing body, the county administrator shall exercise no authority over any elected officials of the county whose offices were created either by the Constitution or by the general law of the State.” (emphasis added). There is no contention of any ambiguity in either of these statutory provisions. Therefore, we cannot ignore the statutes’ plain and ordinary meaning or resort to a subtle or forced construction in an attempt to expand their meaning.

The majority reads § 4-9-30(7) as if it said: “employment, discharge, and disciplinary authority” and § 4-9-650 as if it said: “the county administrator shall exercise no authority over any elected officials or their staff.” Plainly, those words *459are nowhere to be found in the statute. When read together, §§ 4-9-30(7) and 4-9-650 provide that

(1) a county administrator has authority over all county émployees except elected officials, and (2) elected officials hire and fire their own staff.

The statutes in no way exempt the staff of elected officials from the rules applicable to all other county employees, nor from the enforcement of those rules by the county administrator.

The elected official’s exclusive power to discharge does not include the power to suspend. See Rose v. Beasley, 327 S.C. 197, 489 S.E.2d 625 (1997) (rejecting the Governor’s argument that the power to suspend was an incident of his statutory power to remove from office). Arguably, nor does the elected official’s power to discharge members of her staff deprive her staff of the protections of county policies, such as grievance procedures. See Heath v. Aiken County (Heath I), 295 S.C. 416, 368 S.E.2d 904 (1988) (sheriffs department personnel other than deputies are county employees under § 4-9-30(7) and therefore subject to reinstatement by the county grievance committee). Thus, while county employees working under the direction of an elected official remain subject to county rules, they also benefit from the security provided by those rules.

I am aware of the difficulties created by permitting the county administrator to discipline members of the auditor’s staff. A person cannot serve two masters. But the lack of a clear chain of command is a systemic problem that should be resolved in the legislative forum. Moreover, I am equally aware of the difficulties created by not permitting the county administrator to discipline members of the auditor’s staff, among them the morale problems that would result from effectively exempting some county employees, and not others, from rules purportedly applicable to all.

Although I believe the legislature clearly intended to give county administrators the authority to enforce county policies against all county employees not directly elected by the people, I recognize that the statute leaves many unanswered questions regarding the respective disciplinary roles of the supervising elected official and the county administrator. *460This is yet another reason this issue should be decided in the General Assembly, and not by judicial fiat.

A responsible elected official should not ask his or her staff members to violate county policy. Once county policy has been violated, however, to construe these statutes to immunize an elected official’s staff from discipline by the county administrator is to read language into the statutes which they do not contain.