THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

William Brightharp, Jr., Respondent,

v.

South Carolina Department of Corrections, Appellant.

Appeal From Dorchester County
 Diane S. Goodstein, Circuit Court Judge

Unpublished Opinion No. 2009-UP-341
Heard April 23, 2009 – Filed June 16, 2009

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

D. Keith Bolus, of North Charleston, for Respondent.

Lake E. Summers, of Columbia, for Appellant.

PER CURIAM:  The South Carolina Department of Corrections (the Department) appeals the circuit court's decision reversing the denial of back pay to William Brightharp, Jr.  We affirm in part, vacate in part, and remand.

FACTS

In April of 2003, Brightharp, a long-time corrections officer, was placed on administrative suspension without pay pending homicide by child abuse charges filed against him.  These charges related to Brightharp's second job supervising and managing emotionally disturbed children/adolescents in an inpatient setting at New Hope Treatment Center.  He and two other employees were accused of improperly restraining a minor patient who died of asphyxiation.  Brightharp filed a grievance with the Department asking to be allowed to work in some sort of capacity during the investigation of the charges against him.   He wrote:

I have not gone to court[;] therefore, I'm innocent till proven otherwise.  By allowing me to work I may continue[] to up hold my obligation to this agency and my family. 

Brightharp's request for reinstatement was investigated by Crystal Rookard, the Department's Deputy General Counsel.  Rookard filed a report with Robert E. Ward, the Acting Director of the Department's Division of Operations, who upheld Brightharp's administrative suspension.  In the letter informing Brightharp his suspension was being upheld, he was advised he could continue the grievance process by appealing to the Director of the Department.  Brightharp did not pursue his grievance any further.

In August of 2004, the Department's Policy Number ADM-11.04, dealing with corrective actions, was amended to include a discussion of administrative suspensions.[1]  It stated: 

Administrative Suspension refers to a period of suspension without pay that may exceed 15 workdays if the alleged violation requires that an employee not be allowed to return to work pending the outcome of an internal/external investigation or when the presence of an employee presents a perceived threat or danger to the health and/or safety of other employees or to the operation or security of an office or institution.  (NOTE: If an employee is authorized to return to work, reimbursement for back pay may or may not be approved by the Division Director of Human Resources based on the circumstances of administrative suspension.) 

In February of 2005, the charges against Brightharp were dismissed.  The Solicitor's Office provided Brightharp with a letter explaining the deceptive actions of the administration at New Hope Treatment Center were directly responsible for Brightharp's indictiment.  Had the parties been truthful, the letter stated, charges would never have been brought against Brightharp.  Brightharp submitted a Notification of Arrest/Disposition form and the letter from the solicitor's office to the Department.  He was taken off administrative suspension and returned to work at Lieber Correctional Institute, but was denied back pay.  Unsatisfied with this resolution, Brightharp filed a grievance in which he requested back pay for the two years he was on administrative suspension and credit for time lost. 

The Department's Division of Human Resources informed Brightharp his grievance regarding the denial of back pay was an improper attempt to reopen his April 2003 grievance.  Brightharp was informed via letter at the next appellate level that "[t]he appeal must be denied because you failed to exhaust administrative remedies at the agency level. . . . Since you failed to exhaust and did not initiate an appeal with the State Human Resources Director [in 2003] within the time frame established by the Act, the merits of your appeal were not reviewed."

Brightharp appealed the denial of back pay to the circuit court.  The circuit court heard Brightharp's appeal and requested the Department substantiate the record with respect to the basis for the denial.  In response, the Department provided the circuit court with the affidavit of its Director of Human Resources, John Near.  In his affidavit, Near stated that under Policy Number ADM-11.04 he was the proper party to make the decision regarding the award of back pay to Brightharp.  He stated he reviewed the letter submitted by the solicitor's office along with Brightharp's Notification of Arrest/Disposition form on March 2, 2005.  Near made a handwritten notation on the form:  "No further action required.  Approved to reinstate per legal to previous salary with general increase effective upon reinstatement. No salary backpay or service reinstatement."  Near stated that on March 3, 2005, he reviewed Brightharp's employment history and again made a handwritten notation:  "I believe [Brightharp] will return to work on Friday 3/4/05.  Please ensure general increase is awarded at that time.  No backpay and no service reinstatement."  Near further stated he disapproved Brightharp's back pay in light of the Department's historical practice of not awarding back pay when an administrative suspension without pay was imposed as a result of an arrest, indictment, or prosecution unrelated to employment with the Department and outside of the Department's control. 

The circuit court concluded Brightharp's 2003 grievance had not animated a request for back pay and that he had been denied due process because the Department had failed to consider the merits of his request.  The circuit court found Brightharp could not have requested back pay in his 2003 grievance because the back pay provision of Policy Number ADM-11.04 was not in place at that time.  The court further concluded the Department had provided no evidence to substantiate its decision to deny Brightharp's request and reversed the denial of Brightharp's request for back pay.  This appeal followed.

STANDARD OF REVIEW

Under the scope of review established in the Administrative Procedures Act, this court “may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.”  S.C. Code Ann. § 1-23-380(5) (Supp. 2008).  A reviewing court may reverse or modify a final agency decision if the agency's findings, inferences, conclusions or decisions are "affected by . . . error of law," are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record," or are  "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."  § 1-23-380(5)(d)-(f).

LAW/ANALYSIS

I.  Exhaustion of Administrative Remedies

The Department argues Brightharp's 2003 request for reinstatement animated a request for back pay; therefore, his failure to exhaust his administrative remedies in 2003 precluded consideration of his request in 2005.  We disagree.

No specific provision indicates when or how an employee is to make a request for back pay.  The Department's argument seems to hinge on the fact that if Brightharp's suspension had been reversed, he would automatically have been granted back pay.[2]  However, according to Policy Number ADM-11.04, the Department's Director of Human Resources makes the decision regarding back pay in his discretion.  The policy does not mention any requirement that the employee's suspension be found to have been unlawful or improper.  Consequently, the award of back pay is not tied directly to a determination regarding the lawfulness of the suspension, a matter that may well have been abandoned when Brightharp did not pursue his 2003 grievance.  Therefore, we agree with the circuit court that a request for back pay was not necessarily included in a request for reinstatement, and thus, the filing of Brightharp's 2005 grievance was not an attempt to reopen his 2003 grievance.  

II.  Due Process

The Department next contends it did not violate Brightharp's due process rights by failing to consider his grievance on the merits.  We disagree.

“The right to hold specific employment and the right to follow a chosen profession free from unreasonable governmental interference come within the liberty and property interests protected by the Due Process Clause [of the Fourteenth Amendment].”  Sloan v. S.C. Bd. Of Physical Therapy Exam'rs, 370 S.C. 452, 483, 636 S.E.2d 598, 615 (2006).

Procedural due process in matters regarding a property or liberty interest generally includes "adequate notice, the opportunity to be heard at a meaningful time and in a meaningful way, the right to introduce evidence, the right to confront and cross-examine witnesses whose testimony is used to establish facts, and the right to meaningful judicial review."  Id. at 484-85, 636 S.E.2d at 615. 

We have concluded Brightharp's 2005 grievance should not have been disposed of on procedural grounds but should have been considered on the merits.  We must now consider whether he was afforded the required due process. 

Evidence in the record suggests Near, the Department's Director of Human Resources, considered Brightharp's entitlement to back pay on the merits.  In his affidavit, Near stated he considered the letter from the solicitor's office detailing the circumstances of Brightharp's indictment, as well Brightharp's employment history with the Department.  Near also factored in the Department's historical practice of not awarding back pay for suspensions related to outside matters.  However, according to correspondence from the Department's Division of Human Resources and the State Director of Human Resources, Brightharp's appeal from that decision was not reviewed on its merits.  We agree with the circuit court that this deprived Brightharp of due process.

In reaching its ultimate ruling, the circuit court found Near's reliance on the historical practice of denying back pay was essentially a pretext because the language of Policy Number ADM-11.04 was only amended a few months prior to Near's decision.  The circuit court then affirmatively granted Brightharp's request for back pay.  We believe this action went beyond the permissible scope of judicial review, and the appropriate action would have been to remand the matter to the Department for review of Near's decision on the merits.

Accordingly, the circuit court's award of back pay is vacated and the issue of Brightharp's grievance is remanded for a review on the merits to be conducted in accordance with the Department's grievance policy.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.

[1] In the 2002 edition of this policy, administrative suspension was not discussed in any detail, but was listed as an option available to the reprimanding authority.

[2] This position may be supported in some respects by Perry v. State Law Enforcement Div., 310 S.C. 558, 426 S.E.2d 334 (Ct. App. 1992).  In Perry, a terminated SLED officer appealed his dismissal but did not exhaust his administrative remedies on the point.  Id. at 559, 426 S.E.2d at 335.  Subsequently, Perry brought a breach of contract action in circuit court.  Id.  This court found res judicata barred the litigation of Perry's claims because if his appeal requesting reinstatement was granted, he could have received back pay.  Id. at 561 n.1, 426 S.E.2d at 336 n.1.