Torrence v. SCDC

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Thomas J. Torrence, Respondent,
v.
South Carolina Department of Corrections, Appellant.
Appellate Case No. 2016-000285
Appeal From The Administrative Law Court
Deborah Brooks Durden, Administrative Law Judge
Opinion No. 5829
Submitted May 26, 2021 – Filed June 30, 2021
AFFIRMED
Lake E. Summers, of Malone, Thompson, Summers &
Ott, LLC, of Columbia, for Appellant.
Thomas J. Torrence, pro se.
HUFF, J.: The South Carolina Department of Corrections (the Department)
appeals two orders of the administrative law court (the ALC), which reversed the
Department's final decision in the matter of inmate Thomas Torrence's grievance
and remanded the case back to the Department to calculate and pay wages to
Torrence in accordance with the Prevailing Wage Statute.1 On appeal, the
Department argues the ALC erred by: (1) finding Torrence timely filed the
grievance at issue, (2) finding the doctrine of equitable tolling applied to Torrence's
grievance, (3) calculating the prevailing wage in its order, and (4) finding the
Department erred by failing to allow Torrence to designate persons or authorities
under section 24-3-40 of the South Carolina Code.2 We affirm on the submitted
briefs.3
FACTS/PROCEDURAL HISTORY
Torrence is currently serving a life sentence without the possibility of parole.
Between June 1997 and November 2004, Torrence participated in the prison
industries service project (PIP) operated at Evans Correctional Institution. During
this time, Torrence performed work for Insilco Global Industries/ESCOD
(ESCOD). For the first 320 hours of Torrence's labor, the Department paid him a
"training wage" of $0.25 per hour for the first 160 hours and $0.75 per hour for the
remaining 160 training hours. After the completion of his training period, the
Department paid Torrence a wage of $5.25 per hour and $7.86 per hour for
overtime.
In 2001, Torrence and other inmates filed a class action suit against the
Department in the circuit court, seeking a declaratory judgment finding the
Department violated South Carolina law by (1) improperly diverting portions of
inmate wages, (2) paying inmates less than the prevailing wage, and (3) preventing
immediate distribution of inmate wages placed in escrow. Pursuant to Wicker4 and
Adkins,5 the circuit court granted the Department's motion to dismiss, and Torrence
1
S.C. Code Ann. § 24-3-430(D) (2007).
2
Upon our initial review, this court dismissed the Department's appeal as
interlocutory, but our supreme court reversed the dismissal and remanded to this
court to address the merits of Department's appeal. See Torrence v. S.C. Dep't of
Corr., ___ S.C. ___, 857 S.E.2d 549 (2021).
3
We decide this case without oral argument pursuant to Rule 215, SCACR.
4
Wicker v. S.C. Dep't of Corr., 360 S.C. 421, 602 S.E.2d 56 (2004).
5
Adkins v. S.C. Dep't of Corr., 360 S.C. 413, 602 S.E.2d 51 (2004).
appealed. The South Carolina Supreme Court subsequently affirmed the circuit
court's dismissal, holding inmates do not have a private right of action against the
Department but do have a right to pursue their claims through the Department's
internal grievance procedure. See Torrence v. S.C. Dep't of Corr., 373 S.C. 586,
593-95, 646 S.E.2d 866, 869-70 (2007).
On May 21, 2007, Torrence submitted a step one grievance raising eight grounds
"objecting to the Department's payment, disbursement, and retention of wages" for
his work under PIP. Specifically, Torrence argued the Department violated state
law by paying him an hourly wage below the prevailing wage in the industry.
Torrence argued he was entitled to the difference between his wage and the
prevailing wage for his work performed for ESCOD both during and after his
training period as well as for any overtime hours. Torrence additionally argued the
Department deprived him of his property rights by denying him the option of
designating persons or entities to receive immediate distribution of his wages
placed in escrow pursuant to section 24-3-40 of the South Carolina Code.
Torrence argued that because he was serving a life sentence, he should be allowed
to designate persons or entities to receive the escrowed wages for "his personal
benefit." On December 1, 2011, the Department denied Torrence's claims, finding
Torrence failed to timely file his grievance "within either seven . . . days or even
[fifteen] days of the incident upon which [he] anchored the claims . . . presented in
[his] [s]tep [one]" as required by Paragraph 13.1 of the Department's Policy GA-
01.12.6 On December 5, 2011, Torrence appealed the Department's decision in a
step two grievance, which raised the same grounds as his step one. Additionally,
in his step two, Torrence argued the Department erred in finding he failed to timely
file his step one because (1) the class action lawsuit, which was filed four years
before Wicker, tolled the statute of limitations and (2) he filed his step one
"immediately" after receiving notice of the supreme court's decision. On February
9, 2012, the Department reiterated its response to Torrence's step one and denied
his step two.
6
Paragraph 13.1 of Policy GA-01.12 requires that step one grievances be filed within
fifteen days of the alleged incident that led to the grievance.
On May 7, 2012, Torrence appealed to the ALC. The ALC subsequently
bifurcated the issues on appeal to determine the timeliness of Torrence's grievance
before reaching the merits of his case. On January 30, 2014, the ALC issued an
order finding Torrence timely filed his step one. In its order, the ALC found
Torrence timely filed his step one because Torrence's claims fell within Paragraph
13.9 of the Department's Policy GA-01.12, which provides "[e]xceptions to the
[fifteen-]day time limit requirement will be made for grievances concerning
policies/procedures." The ALC noted,
The Inmate Grievance System Policy fails to define either
"incident" or "policies/procedures." . . . Based on the
"plain and ordinary meaning" of both of these words, it is
clear that an incident would be a one-time, specific event,
and a policy would be continuous course of action. In the
present case, it was not a one-time event, in which
[Torrence] was not paid a prevailing wage. The
Department continuously failed to pay [Torrence] a
prevailing wage. Therefore, the grievance involved is
related to a policy or procedure.
....
Prior to the Wicker opinion issued by the [s]upreme
[c]ourt, the Department maintained that wage issues were
not grievable under the internal grievance
system. . . . Thus, any attempt by [Torrence] to file a
grievance prior to August 22, 2004[,] would have been
futile. By that time, [Torrence's] lawsuit initiated as a
class action in [the c]ircuit [c]ourt was pending . . . ,
representing ongoing litigation between these same parties
over the same issue. [Torrence] filed his grievance within
fifteen days of the date the [s]upreme [c]ourt issued its
decision in his case . . . .
The ALC additionally found Torrence timely filed his step one because his
grievance "present[ed] the type of extraordinary circumstances in which fairness
demands that the doctrine of equitable tolling be applied." The ALC further stated
it would address the merits of Torrence's claims upon receiving the parties' briefs.
On January 21, 2016, the ALC issued its order addressing the merits of Torrence's
claims. In its order, the ALC found the Department erred by failing to pay
Torrence the prevailing wage for his labor pre- and post-training, stating "there is
no construction of law under which the Department could pay [Torrence] less than
the prevailing wage." The ALC further stated, "The question then becomes, what
is the 'prevailing wage' that must be paid for all hours worked in both the training
period and thereafter?" Addressing this question, the ALC stated,
The [PIP] Guideline . . . states that the prevailing wage
must be obtained from the state agency that determines
wage rates. . . . In South Carolina, this agency would have
been the Employment Security Commission (ESC) at the
times relevant to this case, but would now be the
Department of Employment and Workforce (DEW).
The ALC continued,
The Department cites a [c]ircuit [c]ourt order in another
case as support for the theory that [s]ection [24-3]-410,
and not [s]ection [24-3]-430, governs the wage standard
applicable in this case. Not only is this [c]ircuit [c]ourt
order not binding, the argument for which it is cited
contradicts the statements of the higher courts in this state.
This [c]ourt declines to further address the argument that
only [s]ection [24-3]-410 applies, noting that the South
Carolina Supreme Court has already stated that the
program at issue in this case operated under [s]ection
24-3-430.
The ALC continued, "While the [c]ourt agrees that verification of wage rates by
the ESC is the method for determining the prevailing wage that the federal
[g]uideline and state statutes contemplate, the [c]ourt does not agree that the $5.25
regular hourly rate conforms to the ESC data in the record." The ALC stated,
[Torrence] has asked this [c]ourt to determine the
prevailing wage based on the record in this case. In so
doing, the [c]ourt reaches an issue not yet addressed by
South Carolina courts. While it has been decided that the
Department may not pay less than the prevailing wage
during training, no inmate has successfully raised the issue
of how the prevailing wage is calculated.
In calculating the prevailing wage, the ALC interpreted section 24-3-430 of the
South Carolina Code (2007). The court stated,
The Meriam-Webster Dictionary defines "prevail" as "to
be frequent: predominate." . . . Predominate is defined as
"to hold advantage in numbers or quantity." . . . The
affidavit in the record of Rebecca Eleazor of the ESC
supports the conclusion that the "average" wage in South
Carolina for a given occupational category would be the
ordinary interpretation of the statutory phrase prevailing
wage. The [c]ourt therefore concludes that the "prevailing
wage" equals the mean average wage for an occupation.
The [PIP] Guideline requires that the prevailing
wage must be obtained from the state agency that
determines wage rates. . . . Further, the Guideline states
that the prevailing wage must be set exclusively in relation
to the amount of pay received by similarly situated non-
inmate workers and that no other cost variables may be
taken into consideration. . . . In referring to the ESC data
in the record, the [c]ourt concludes that "locality" means
the state of South Carolina. Further, the [c]ourt concludes
that the data necessary to determine the mean average
wage for "work of a similar nature" as contemplated by the
state statutes and federal guidelines may be found by
referring to the appropriate Occupational Employment
Statistics (OES) or OCC code used by ESC/DEW.
(emphasis added). Based on the aforementioned analysis, the ALC found, "The
record simply d[id] not support a finding that the mean average wage for an
assembler [was] as low as the $5.25 paid [to Torrence]"; rather, the record showed
the mean average wage for an electronic assembler was $8.82 in 1997 and $9.92
for 1998 and 1999. The ALC additionally found "the evidence in the record [was]
insufficient to calculate the wage for all of the relevant years," specifically the
years 2000 through 2004. It therefore ordered Torrence's claim be remanded to the
Department to determine the prevailing wage for the remaining years of Torrence's
labor.
Regarding Torrence's access to his escrowed wages, the ALC discussed the parties'
varying interpretations of section 24-3-40, stating,
The parties disagree on when [Torrence's] escrowed
wages may be distributed to persons or entities of the
inmate's choosing—i.e. whether they may be distributed
only after the inmate's death. While there is nothing in
[section 24-3-40(B)(2)] explicitly stating that the
distribution of the funds to persons or entities chosen by
the inmate can occur only after the inmate's death, the
Department's interpretation of an ambiguous statute that it
administers is entitled to deference unless there is a
compelling reason to differ. . . .
Applying the principles of statutory construction, the ALC found,
[A] construction of the statute that gives full effect to both
[s]ubsections (B)(2) and (A)(5) requires reading
[s]ubsection (B)(2) to allow a prisoner serving a life
sentence without opportunity for parole the option of
having the escrowed funds distributed to the persons or
entities of his choice during his lifetime.
The ALC therefore concluded Torrence "must be allowed the opportunity to
designate persons or entities to receive an immediate distribution of funds held in
escrow pursuant to [s]ection 24-3-40(A)(5)."
Based on the foregoing, the ALC reversed and remanded the Department's final
decision. This appeal followed.
STANDARD OF REVIEW
"In an appeal from an ALC decision, the Administrative Procedures Act provides
the appropriate standard of review." Kiawah Dev. Partners, II v. S.C. Dep't of
Health & Env't Control, 411 S.C. 16, 28, 766 S.E.2d 707, 715 (2014). "Section
1-23-610 of the South Carolina Code ([Supp. 2020]) sets forth the standard of
review when the court of appeals is sitting in review of a decision by the ALC on
an appeal from an administrative agency." S.C. Dep't of Corr. v. Mitchell, 377
S.C. 256, 258, 659 S.E.2d 233, 234 (Ct. App. 2008). "The review of the [ALC's]
order must be confined to the record." S.C. Code Ann. § 1-23-610(B) (Supp.
2020). "Th[is] court may not substitute its judgment for the judgment of the
[ALC] as to the weight of the evidence on questions of fact." Id. "In determining
whether the ALC's decision was supported by substantial evidence, th[is c]ourt
need only find, . . . evidence from which reasonable minds could reach the same
conclusion as the ALC." Kiawah, 411 S.C. at 28, 766 S.E.2d at 715. However,
when the issue on review raises a question of law, this court "may reverse the
decision of the ALC where it is in violation of a statutory provision or it is affected
by an error of law." Id. "Statutory interpretation is a question of law." Chapman
v. S.C. Dep't of Soc. Servs., 420 S.C. 184, 188, 801 S.E.2d 401, 403 (Ct. App.
2017) (quoting S.C. Coastal Conservation League v. S.C. Dep't of Health & Env't
Control, 390 S.C. 418, 425, 702 S.E.2d 246, 250 (2010)). "Unless there is a
compelling reason to the contrary, appellate courts 'defer to an administrative
agency's interpretations with respect to the statutes entrusted to its administration
or its own regulations.'" Id. at 188, 801 S.E.2d at 403 (quoting Kiawah, 411 S.C. at
34, 766 S.E.2d at 718); see also Kiawah, 411 S.C. at 34-35, 766 S.E.2d at 718
("We defer to an agency interpretation unless it is 'arbitrary, capricious,
or manifestly contrary to the statute.'" (quoting Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984))).
LAW/ANALYSIS
I. TIMELINESS OF GRIEVANCE
The Department argues the ALC erred in finding Torrence timely filed his step one
grievance because he failed to file it within fifteen days of "the date upon which
[the Department] began paying Torrence for his labor," as required by Paragraph
13.1 of Policy GA-01.12. The Department contends the ALC erred in finding
Torrence's grievance fell within the filing exception under Paragraph 13.9 because
Torrence did not specifically allege his grievance challenged a policy or procedure
of the Department. Additionally, the Department asserts the ALC erred in finding
the doctrine of equitable tolling applied to Torrence's claims because the
Department "did nothing whatsoever to hinder Torrence's discovery of his wage
claims or his ability to pursue his claims." We disagree.
"[The Department's] Inmate Grievance System Policy, designated as Policy
GA-01.12, provides for formal review of inmate complaints in two steps."
Ackerman v. S.C. Dep't of Corr., 415 S.C. 412, 414, 782 S.E.2d 757, 758 (Ct. App.
2016). "Paragraph 13.1 of Policy GA-01.12 requires an inmate to file a [s]tep
[one] Inmate Grievance Form within fifteen days of the alleged 'incident.'" Id. at
418, 782 S.E.2d at 760. "Policy GA-01.12 does not define the term 'incident,' but
[P]aragraph 13.9 provides . . . [e]xceptions to the [fifteen-]day time limit
requirement will be made for grievances concerning policies/procedures." Id.
(quoting Paragraph 13.9, Policy GA-01.12).
Although the Department does not define "policies and procedures" in its policy, it
provided this court with the following definition in Ackerman:
[T]he terms "policies" and "procedures" constitute
approved guidelines for handling the [Department's]
day-to-day operations as well as statements expressing the
basic expectations of conduct for agency staff and inmates.
More formally stated, the terms "policies" and
"procedures" constitute agency directives deemed by the
responsible agency officials as "necessary to preserve
internal order and discipline, and to maintain institutional
security in prison."
Id. at 419, 782 S.E.2d at 761 (first alteration by court). Because the Department
operates PIP as a part of its day-to-day operations, this court found that an inmate
grievance challenging a specific pay rate and invoking the Prevailing Wage
Statute7 constitutes a grievance challenging a policy or procedure under Paragraph
13.9, rather than a grievance involving a specific incident under Paragraph 13.1.
Id. at 418-20, 782 S.E.2d at 760-61. Additionally, this court found grievances
invoking the Prevailing Wage Statute involve "a topic governed by statute and,
thus, an expression of the legislature's policy on inmate pay." Id. at 420, 782
S.E.2d at 761. The court explained,
As [the Department] is mandated to carry out these
legislative policies, [the Department], in turn, expresses its
own, more specific policies regarding pay rates and other
working conditions for inmates in its contracts with [PIP]
sponsors. . . .
Moreover, the provisions of these contracts are
enduring and have the same effect on numerous inmates.
Therefore, they cannot realistically be characterized as
"incidents," which are temporally limited and rarely affect
more than a few inmates.
Id. at 420-21, 782 S.E.2d at 762 (emphasis added). Accordingly, this court held
these types of grievances are exempt from the fifteen-day deadline enumerated in
Paragraph 13.1 and the Department's "attempt to characterize [inmate] wage
7
S.C. Code Ann. § 24-3-430(D) (2007).
grievances as incident grievances was arbitrary and capricious." Id. at 421, 782
S.E.2d at 762.
In the instant case, we find Torrence timely filed his step one grievance. As in
Ackerman, Torrence's claims involved "topic[s] governed by statute" that reflect
the Department's "expression of the legislature's policy on inmate pay." 415 S.C.
at 420-21, 782 S.E.2d at 761-62 (finding inmate grievances raising topics governed
by statute that involve enduring conditions, such as inmate wages, "cannot
realistically be characterized as 'incidents,' which are temporally limited and rarely
affect more than a few inmates"). Specifically, Torrence alleged the Department
failed to pay him the prevailing wage for his labor under PIP and erroneously
prevented him from designating "persons or entities" to receive immediate
distributions of his escrowed wages. Because Torrence's claims involve
continuous conditions potentially affecting numerous inmates, we find Torrence's
grievance involves Department policies and procedures, rather than an isolated
incident. Therefore, we find Torrence's grievance falls within the exception
enumerated in Paragraph 13.9 of the Department's Policy GA-01.12, and thus,
Paragraph 13.1's fifteen-day filing rule does not apply. See id. at 421, 782 S.E.2d
at 762 (holding the Department's attempt to characterize inmate wage grievances as
"incident" grievances under Paragraph 13.1 was arbitrary and capricious).
Accordingly, we affirm the ALC's finding that Torrence timely filed his step one
grievance.
Because our finding on this issue is dispositive as to the timeliness of Torrence's
grievance, we need not address whether the ALC erred in applying the doctrine of
equitable tolling. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C.
598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not address
remaining issues when disposition of a prior issue is dispositive).
II. CALCULATION OF THE PREVAILING WAGE
The Department argues the ALC erred by calculating the prevailing wage for
Torrence's labor performed through PIP because it "misapprehended the applicable
state law, federal law, and federal regulations." Specifically, the Department
asserts section 24-3-410(B)(7)8 is the controlling authority over inmate wages
received through PIP, rather than section 24-3-430(D). Arguing the ALC
erroneously ignored the analysis of the circuit court in Adkins, the Department
urges this court to adopt the circuit court's holding, which found pursuant to
section 24-3-410(B)(7), inmates were only entitled to a comparable wage in the
industry and not the prevailing wage. The Department therefore asserts the wage
Torrence received complied with South Carolina law because it was ten cents over
the federal minimum wage for similar labor. The Department further argues the
ALC erred in its calculation of the prevailing wage because the record did not
contain sufficient evidence to support the calculation. We disagree.
Preliminarily, we find the Department's assertion that section 24-3-410(B)(7)
preemptively governs inmate wages earned through PIP is a misinterpretation of
the law. Section 24-3-410 provides:
(A) It is unlawful to sell or offer for sale on the open
market . . . articles or products manufactured or produced
wholly or in part by inmates . . . .
(B) The provisions of this section do not apply to: . . .
(7) products . . . produced by inmates of the
Department . . . employed in [PIP] if the inmate
workers participate voluntarily, receive comparable
wages, and the work does not displace employed
workers.
S.C. Code Ann. § 24-3-410(A), (B)(7) (2007) (emphasis added). Section
24-3-430(D) provides, "No inmate participating in the program may earn less than
8
S.C. Code Ann. § 24-3-410(B)(7) (2007) (stating the prohibition on selling prison
made products on the open market does not apply to "products . . . produced by
inmates of the Department . . . employed in [PIP] if the inmate workers . . . receive
comparable wages, and the work does not displace employed workers" (emphasis
added)).
the prevailing wage for work of [a] similar nature in the private sector." S.C. Code
Ann. § 24-3-430(D) (2007) (emphasis added). Although both statutes refer to
inmate wages earned through PIP, we find section 24-3-430(D) is the controlling
authority, as it directly addresses the rate of inmate wages. See Bruning v. S.C.
Dep't of Health and Env't Control, 418 S.C. 537, 545, 795 S.E.2d 290, 294 (Ct.
App. 2016) ("Generally, '[a] specific statutory provision prevails over a more
general one.'" (quoting Wooten ex rel. Wooten v. S.C. Dep't of Transp., 333 S.C.
464, 468, 511 S.E.2d 355, 357 (1999))). Further, as stated in the ALC's order, our
precedent has primarily addressed inmate wage claims within the context of
section 24-3-430(D). See S.C. Dep't of Corr. v. Cartrette, 387 S.C. 640, 646, 694
S.E.2d 18, 21 (Ct. App. 2010) (finding "sections 24-3-315 and 24-3-430(D)
compel the Department to ensure inmate workers who are employed under those
sections receive the same pay rates and employment conditions as their non-inmate
peers"); Wicker, 360 S.C. at 425, 602 S.E.2d at 58 (holding "there is simply
nothing in the [PIP] statutory scheme authorizing the [Department] to pay Wicker
a training wage less than the prevailing wage" as provided by section 24-3-430).
However, we find section 24-3-410 and other sections within Article 3 still bear
importance in determining the legislative intent behind the statutes governing PIP.
See Original Blue Ribbon Taxi Corp. v. S.C. Dep't of Motor Vehicles, 380 S.C.
600, 608, 670 S.E.2d 674, 678 (Ct. App. 2008) ("When statutes address the same
subject matter, they are in pari materia[] and must be construed together, if
possible, to produce a single, harmonious result."). In comparing these sections
with our precedent, it is clear the legislature intended to provide inmates with
employment opportunities that would not displace workers in the private sector.
See S.C. Code Ann. § 24-3-315 (2007) ("The director must determine prior to
using inmate labor in a [PIP] project that it will not displace employed
workers, . . . and that the rates of pay and other conditions of employment are not
less than those paid and provided for work of [a] similar nature in the locality in
which the work is performed."); S.C. Code Ann. § 24-3-430(E) (2007) ("Inmate
participation in [PIP] may not result in the displacement of employed workers in
the State of South Carolina and may not impair existing contracts for services.");
see also Cartrette, 387 S.C. at 646, 694 S.E.2d at 22 (holding "[f]ailure of the
Department's contracts with PIP sponsors to provide inmate workers with time-
and-a-half pay for overtime hours when their non-inmate counterparts receive it
would create an impermissible and unfair advantage for inmate labor over private
labor"). Therefore, we find the legislature created section 24-3-430(D) as a
safeguard to prevent inmates from becoming a cheaper alternative to their
counterparts in the private realm. Accordingly, we find the pivotal inquiry in the
instant case becomes how the prevailing wage for a particular industry is
calculated.
"The issue of interpretation of a statute is a question of law for the court."
Bruning, 418 S.C. at 544, 795 S.E.2d at 294 (quoting State v. Sweat, 379 S.C. 367,
373, 665 S.E.2d 645, 648 (Ct. App. 2008)). "The cardinal rule of statutory
interpretation is to ascertain and effectuate the legislature's intent." Blue Ribbon
Taxi, 380 S.C. at 607, 670 S.E.2d at 677. "Legislative intent must prevail if it can
be reasonably discovered in the language employed and that language must be
construed in the light of the intended purpose of the statute." Id. at 607, 670
S.E.2d at 678 (emphasis added). "The plain language of the statute is the principal
guidepost in discerning the General Assembly's intent." Id. "Words in the statute
should be given their plain and ordinary meaning without [resorting] to forced or
subtle construction." Id. at 608, 670 S.E.2d at 678.
Because Article 3 fails to define the term "prevailing wage," we must apply its
customary meaning. See Strother v. Lexington Cnty. Recreation Comm'n, 332 S.C.
54, 62, 504 S.E.2d 117, 122 (1998) ("When faced with an undefined statutory
term, the court must interpret the term in accord with its usual and customary
meaning."); Lee v. Thermal Eng'g Corp., 352 S.C. 81, 91-92, 572 S.E.2d 298, 303
(Ct. App. 2002) ("Where a word is not defined in a statute, our appellate courts
have looked to the usual dictionary meaning to supply its meaning."). According
to the Merriam-Webster Dictionary, "prevailing" means to be frequent or
predominant. It further defines "predominant" as being most frequent or common.
Therefore, based on a plain reading of section 24-3-430(D) and its legislative
intent, we agree with the ALC's interpretation that to determine the prevailing
wage for an industry, the Department must determine the mean average wage for
the occupation at issue using records and data from DEW. See Average, Black's
Law Dictionary (11th ed. 2019) (defining "average" as "[t]he ordinary or typical
level; the norm"); Average, Merriam-Webster Dictionary (defining "average" as a
level typical of a group, class, or series). Accordingly, we affirm the ALC's
calculation of the prevailing wage for the years 1997 to 1999 and its decision to
remand Torrence's grievance to the Department for the calculation of the prevailing
wage for the years 2000 to 2004.
III. DISTRIBUTION OF ESCROWED WAGES
The Department argues the ALC erred by finding section 24-3-40 of the South
Carolina Code allowed Torrence to designate persons or entities to receive
immediate distributions of his escrowed wages. According to the Department,
section 24-3-40 is an unambiguous statute and therefore requires a plain reading of
its text. The Department asserts a plain reading of the statute reveals an inmate
sentenced to life imprisonment "may only distribute the monies held in escrow for
his benefit by operation of § 24-3-40(A)(5) upon his natural death."
Torrence argues section 24-3-40(B)(2) allows him the option of electing either
immediate distribution of his escrowed wages to persons and entities of his
choosing or the inclusion of the escrowed wages in the distribution of his estate.
Torrence therefore asserts the ALC properly harmonized sections 24-3-40(A)(5)
and (B)(2) in its construction of the statute.
"Interpreting and applying statutes and regulations administered by an agency is a
two-step process." Kiawah, 411 S.C. at 32, 766 S.E.2d at 717. "First, a court must
determine whether the language of a statute or regulation directly speaks to the
issue. If so, the court must utilize the clear meaning of the statute or regulation."
Id. "Words in the statute should be given their plain and ordinary meaning without
[resorting] to forced or subtle construction." Blue Ribbon Taxi, 380 S.C. at 608,
670 S.E.2d at 678. "If the statute or regulation 'is silent or ambiguous with respect
to the specific issue,' the court then must give deference to the agency's
interpretation of the statute or regulation, assuming the interpretation is worthy of
deference." Kiawah, 411 S.C. at 33, 766 S.E.2d at 717 (quoting Chevron, 467 U.S.
at 843).
Section 24-3-40 provides:
(A) Unless otherwise provided by law, the employer of a
prisoner authorized to work . . . [under PIP] . . . shall pay
the prisoner's wages directly to the Department . . . . The
Director of the Department . . . shall deduct the following
amounts from the gross wages of the prisoner: . . .
(5) Ten percent must be held in an interest bearing
escrow account for the benefit of the prisoner.
....
(B) The Department . . . shall return a prisoner's wages
held in escrow pursuant to subsection (A) as follows: . . .
(2) A prisoner serving life in prison . . . shall be given
the option of having his escrowed wages included in
his estate or distributed to the persons or entities of his
choice.
S.C. Code Ann. § 24-3-40(A)(5), (B)(2) (Supp. 2020) (emphases added).
We construe subsections (A)(5) and (B)(2) to allow for either immediate
distribution of an inmate's escrowed wages to persons or entities of his choosing or
inclusion of these assets in the distribution of his estate. See Anderson v. S.C.
Election Comm'n, 397 S.C. 551, 556, 725 S.E.2d 704, 707 (2012) ("In construing
statutory language, the statute must be read as a whole, and sections which are a
part of the same general statutory law must be construed together and each one
given effect."). Subsection (B)(2) states an inmate serving a life sentence shall be
given the option to include his withheld wages in his estate or to distribute them to
persons or entities of his choosing. Further, subsection (A)(5) provides these
wages will be held in an escrow account for the benefit of the prisoner. Because an
inmate serving a life sentence will never receive the benefit of his wages outside of
prison unlike those who will be released during their lifetime, we find the
Department's interpretation of section 24-3-40 arbitrary and capricious.
Accordingly, we affirm the ALC's construction of section 24-3-40 and find the
Department erred by refusing Torrence the option of designating persons or entities
for immediate distribution of his escrowed wages.
CONCLUSION
Accordingly, the decision of the ALC is
AFFIRMED.
GEATHERS and MCDONALD, JJ., concur.