South Carolina General Assembly
114th Session, 2001-2002

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Bill 3053


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(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)


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COMMITTEE REPORT

March 7, 2001

    H. 3053

Introduced by Reps. J. Young, Kirsh, Davenport, G.M. Smith, W.D. Smith, Harrison and Whipper

S. Printed 3/7/01--S.

Read the first time January 25, 2001.

            

THE COMMITTEE ON JUDICIARY

    To whom was referred a Bill (H. 3053) to amend Chapter 1, Title 8, Code of Laws of South Carolina, 1976, as amended, relating to public officers and employees, by adding Section 8-1 -115, etc., respectfully

REPORT:

    That they have duly and carefully considered the same and recommend that the same do pass with amendment:

    Amend the bill, as and if amended, page 5, line 19, by adding an appropriately numbered new SECTION to read:

    /    SECTION    _____.    If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.    /

    Renumber sections to conform.

    Amend title to conform.

GREG GREGORY, for Committee.

            

A BILL

TO AMEND CHAPTER 1, TITLE 8, CODE OF LAWS OF SOUTH CAROLINA, 1976, AS AMENDED, RELATING TO PUBLIC OFFICERS AND EMPLOYEES, BY ADDING SECTION 8-1-115, SO AS TO CREATE A GENERAL LIEN UPON THE STATE RETIREMENT ACCOUNT OF ANY PUBLIC OFFICER, EMPLOYEE, OR ANY OTHER PERSON WHO IS FOUND GUILTY OF AN OFFENSE INVOLVING EMBEZZLEMENT OR MISAPPROPRIATION OF PUBLIC FUNDS OR PROPERTY TO PRIVATE USE OF HIMSELF OR ANY OTHER PERSON, TO THE EXTENT OF THE TOTAL LOSS, DAMAGE OR EXPENSE TO THE STATE, OR TO A COUNTY, MUNICIPALITY, OR OTHER POLITICAL SUBDIVISION OF THE STATE, TO PROVIDE FOR THE JUDGE SENDING A NOTICE OF THE LIEN TO THE ATTORNEY GENERAL AND APPROPRIATE RETIREMENT OR PENSION PLAN SYSTEM, TO PROVIDE THAT AN ACTION TO ENFORCE THE LIEN CREATED BY THIS SECTION MAY BE BROUGHT AT ANY TIME UP TO THE DEATH OF A PERSON WHOSE RETIREMENT OR PENSION PLAN IS SUBJECT TO THE LIEN, TO PROVIDE FOR SATISFACTION AND DISCHARGE OF THE LIEN CREATED BY THIS SECTION BY THE ATTORNEY GENERAL OR HIS DESIGNEE; TO AMEND SECTION 9-1-1680, AS AMENDED, RELATING TO EXEMPTION, WITH EXCEPTIONS, OF ANNUITY RETIREMENT ALLOWANCES, AND CONTRIBUTIONS FROM TAXATION AND LEGAL PROCESS, SO AS TO PROVIDE THAT ANNUITIES, RETIREMENT ALLOWANCES AND CONTRIBUTIONS ARE SUBJECT TO THE GENERAL LIEN CREATED BY SECTION 8-1-115 AND THE DOCTRINE OF CONSTRUCTIVE TRUST EX MALEFICIO, AND TO PROVIDE THAT MONIES DERIVED FROM A PRIVATE RETIREMENT SYSTEM OPERATED BY A MUNICIPALITY ARE NOT SUBJECT TO SECTION 8-1-115; TO AMEND SECTION 9-8-190, SECTION 9-9-180, AND SECTION 9-11-270, ALL AS AMENDED, ALL RELATING TO THE EXEMPTION OF RETIREMENT ALLOWANCES FROM TAXATION AND LEGAL PROCESS, SO AS TO PROVIDE THE RETIREMENT ALLOWANCE IS SUBJECT TO SECTION 8-1-115 AND THE DOCTRINE OF CONSTRUCTIVE TRUST EX MALEFICIO; AND TO PROVIDE FOR THIS ACT'S RETROACTIVE APPLICATION.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.        Chapter 1, Title 8 of the 1976 Code is amended by adding:

    "Section 8-1-115.    (A) There is hereby created a general lien upon any public retirement or pension plan not governed by ERISA of any public officer, public employee, or any other person who is convicted of an offense involving embezzlement or misappropriation of public funds or public property to the private use of himself or any other person, to the extent of the total loss, damage, and expense to the State, or to a county or municipality, or to any agency or political subdivision of the State, or to any state, county or municipal agency, any college or university, or to any school, special or public service district within the State, that is authorized by law to perform a governmental function or provide a governmental service.

    (B)    The presiding judge before whom any public officer, employee, or any other person is convicted of an offense described in subparagraph (A) must send to the Attorney General and the appropriate retirement or pension plan system a notice of the lien showing the name of the person convicted whose retirement or pension plan is subject to the lien created by subsection (A) and the date of the conviction, which is the date upon which the lien attaches. The presiding judge must set the lien at the time of conviction and the presiding judge's notice of lien must state the amount of the lien.

    (C)    In addition to any other sentence imposed upon a person convicted of an offense described in subparagraph (A), the presiding judge may require full restitution of all public funds embezzled or misappropriated and full payment for the conversion, use, and value of public property appropriated to private use, and may provide for an indeterminate sentence of incarceration or probation, or both, until restitution in full has been made.

    (D)    The Attorney General is charged with an affirmative duty to recover public funds and property embezzled or converted to private use, or the value thereof, and he or his designee may bring an action to enforce the lien created by this section at any time up to the death of a person whose retirement or pension plan is subject to the lien created by subsection (A).

    (E)    The Attorney General or his designee shall file a satisfaction and discharge of the lien created by this section after restitution has been made by payment of the amount of the lien in full or after the death of the person whose retirement or pension plan is subject to the lien created by subsection (A). If the beneficiary of the person whose retirement or pension plan is subject to the lien created by subsection (A) was, himself, convicted of an offense involving the embezzlement or misappropriation of public funds or public property, the lien must continue until restitution has been made or until the death of the beneficiary.

    (F)    The lien created by this section and the action to enforce the lien are cumulative and in addition to all other remedies provided by law."

SECTION 2.    Section 9-1-1680 of the 1976 Code, as last amended by Act 189 of 1989, is further amended to read:

    "Section 9-1-1680. Except as provided in Section 8-1-115 and subject to the doctrine of constructive trust ex maleficio, The the right of a person to an annuity or a retirement allowance or to the return of contributions, an annuity, or retirement allowance itself, any optional benefit, or any other right accrued or accruing to any person under the provisions of this chapter, and the monies of the system created under the provisions of this chapter or any private retirement system operated by a municipality, are exempted from any state or municipal tax, except the taxes imposed pursuant to Chapters 7, 15, 6 and 16 of Title 12, and exempted from levy and sale, garnishment, attachment, or any other process and are unassignable except as specifically otherwise provided in this chapter."

SECTION    3.        Section 9-8-190 of the 1976 Code, as last amended by Act 189 of 1989, is further amended to read:

    "Section 9-8-190.        Except as provided in Section 8-1-115 and subject to the doctrine of constructive trust ex maleficio , The the right of a person to a retirement allowance or to the return of contributions, a retirement allowance itself, any optional allowance or payment on death or any other right accrued or accruing to any person under the provisions of this chapter, and the monies of the system are exempted from state or municipal tax, except the taxes imposed pursuant to Chapters 7, 15, 6 and 16 of Title 12, and exempted from levy and sale, garnishment, attachment, or any other process and are unassignable except as otherwise provided in this chapter."

SECTION 4.    Section 9-9-180 of the 1976 Code, as last amended by Act 189 of 1989, is further amended to read:

    "Section 9-9-180.    Except as provided in Section 8-1-115 and subject to the doctrine of constructive trust ex maleficio, The the right of a person to a retirement allowance or to the return of contributions, a retirement allowance itself, any optional allowance or payment on death or any other right accrued or accruing to any person under the provisions of this chapter, and the monies of the system are exempted from any state or municipal tax, except the taxes imposed pursuant to Chapters 7, 15, 6 and 16 of Title 12, and exempted from levy and sale, garnishment, attachment, or any other process and are unassignable except as specifically otherwise provided in this chapter."

SECTION 5.    Section 9-11-270 of the 1976 Code, as last amended by Act 189 of 1989, is further amended to read:

    "Section 9-11-270.    Except as provided in Section 8-1-115 and subject to the doctrine of constructive trust ex maleficio, The the right of a person to retirement allowance or to the return of contributions, a retirement allowance itself, any optional or death benefit, or any other right accrued or accruing to a person under the provisions of this chapter, and the monies of the system are exempted from any state or municipal tax, except the taxes imposed pursuant to Chapters 7, 15, 6 and 16 of Title 12, and exempted from levy and sale, garnishment, attachment, or any other process, and are unassignable except as specifically otherwise provided in this chapter."

SECTION 6.    This act is intended to create remedies to more efficiently recover restitution due to state and local governmental entities in cases involving embezzlement or misappropriation of public funds or public property to the private use of a public officer or employee, or any other person. As such, it is remedial legislation intended to be retroactive as well as prospective in its application, so as to attach the general lien created by Section 8-1-115(A) to any public retirement or pension plan not governed by ERISA of any public officer, public employee, or any other person who has been convicted of an offense described in Section 8-1-115(A). In cases where a living person was convicted of an offense described in Section 8-1-115(A) before the effective date of this act, the lien attaches to their public retirement or pension plan not governed by ERISA immediately upon approval of this act by the Governor. In cases concluded before the effective date of this act the Attorney General or his designee may send the notice of lien required by Section 8-1-115(B) to the appropriate retirement or pension plan system instead of the presiding judge.

SECTION 7.        This act takes effect upon approval by the Governor.

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