SC Court of Appeals Holds Service of Administrative Agency Decision via Facsimile Improper
by Christian Stegmaier
In a July 1, 2009, opinion in Trowell v. South Carolina Department of Public Safety, the South Carolina Court of Appeals held the Department of Public Safety’s facsimile of its final agency decision did not operate to trigger the time for appeal.
Trowell, a South Carolina Highway Patrolman, was suspended without pay for 40 hours and reassigned to a different patrol troop and location. An internal investigation revealed Trowell had provided false and inaccurate information to a fellow officer during an investigation, and had also directed insolent and abusive language towards a superior officer amounting to insubordination and improper conduct. Pursuant to his rights under the State Employee Grievance Procedure Act and the employee grievance procedure established by Public Safety, Trowell notified Public Safety of his request to have a Step I Grievance Hearing regarding his suspension and relocation. Following consideration of the appeal, Trowell’s suspension was upheld.
Trowell thereafter gave written notice of his desire to have a Step II Grievance Hearing. Following a second hearing, counsel for Public Safety requested additional time to pursue a settlement with Trowell; however, those pursuits were unsuccessful, and Public Safety notified Trowell his suspension would be upheld. Notice of Public Safety’s decision regarding Trowell’s Step II Grievance was initially sent to Trowell’s attorney via facsimile on February 2, 2005, and the cover sheet contained a notation explaining the original letter would be sent by certified mail. The certified letter advising Trowell of the decision was received and signed for on February 7. On February 15, Trowell’s attorney faxed the State Appeal Form to the Human Resource Management Division of the South Carolina Budget and Control Board indicating his desire to appeal the agency’s final decision to the Human Resources Director. In the appeal, Trowell stated he received the final decision of the agency on February 7, 2005.
On March 4, 2005, the Director notified Trowell, via letter, that his appeal was untimely because Trowell had failed to file it within ten calendar days of receipt of Public Safety’s February 2 facsimile, pursuant to section 8-17-330 of the South Carolina Code (Supp. 2008). The Director’s letter also noted that Trowell’s notice of appeal was filed outside of the alternative fifty-five calendar days allowed from the date of Trowell’s initial Step I Grievance filing. Thereafter, Trowell filed a written request for reconsideration of the Director’s denial of his appeal, which was denied. Trowell then petitioned the Circuit Court for review. The Circuit Court affirmed the Director’s decision.
On appeal, Trowell contended the Circuit Court erred in finding service of Public Safety’s letter upholding his Step II Grievance was perfected upon facsimile of its final agency decision, thereby initiating the time frame in which Trowell had to appeal. The Court of Appeals concurred. In its opinion, the Court held:
“We find the agency’s interpretation of its service rules was overly harsh in this situation. Given the general rule that service cannot be accomplished via facsimile, the agency’s decision here arbitrarily created a trap for the unwary petitioner. As a result, we believe the substantial rights of Trowell were prejudiced due to the arbitrary and capricious nature of the agency’s interpretation of its grievance procedure. Trowell is entitled to a full and fair hearing before the State Human Resources Director. Accordingly, the decision of the circuit court is reversed and remanded.”
This decision is significant for folks in the retail and hospitality sectors. Entities operating in these industries are subject to the oversight of myriad state regulatory agencies. The agencies, which include the taxation authorities, life and safety inspectors, food service regulators, etc., have the power to sanction where alleged violations of state statutes and regulations are detected.
As a matter of course, such sanctions are subject to both administrative and judicial review. The time to pursue such reviews are triggered by the issuance of administrative decisions, which in turn are met with a written appeals/petitions for review. The time to appeal is time sensitive. There is almost no method under our law to expand the time to make an appeal. Therefore, clarity needs to exist for appellants/petitioners with regard to when the time for appeal begins. The Court’s decision in Trowell reiterates that service of a written decision remains limited to personal service or service of the decision via the mails. An administrative agency may not perfect service via facsimile. Arguably, this rule would also be applicable to an administrative agency’s attempt to perfect service via email as well.
Click here for full opinion of Court of Appeals: http://sccourts.org/opinions/displayOpinion.cfm?caseNo=4581
This article is intended to provide information on noteworthy legal issues and is not a substitute for legal advice.