Accountability Report Card Summary 2018 South Carolina South Carolina has a below average state whistleblower law: Scoring 55 out of a possible 100; Ranking 33 rd out of 51 (50 states and the District of Columbia). South Carolina has fair coverage (16 of 33 possible points) with a poor degree of usability (18 out of 33) and average remedies (21 out of 33). South Carolina s full Whistleblower Report Card page 2 Narrative summary of South Carolina law page 5
South Carolina Accountability Index Report card Coverage, Usability & Strength Rating on a 100 Point Scale S.C. Code Ann. 8-27-10 to -60 (2011) Occupational Health and Safety- S.C. Code Ann. 41-15-510, 520 (2011) A Breadth of Coverage (33 points possible from 10 factors). Does the statute cover disclosures of Factor Maximum Points Awarded Points 1. Violation of state or federal 6 points 6 points 1 law, rules or regulations 2. Gross mismanagement 3 points 0 points 3. Abuse of authority (including 3 points 0 points violations of agency policy) 4. Waste of public funds or 3 points 3 points resources 5. Danger to health and/or public 5 points 2 points 2 safety and/or environment 6. Communication of scientific 5 points 0 points opinion or alteration of technical findings 7. Breaches of professional ethical canons 5 points 5 points Does the statute provide 8. Employee may refuse to carry out illegal or improper orders 9. Prohibition on gag orders to prevent employee disclosures 10. Whistleblower protection does not preclude collective bargaining or other rights Maximum Score 33 points Awarded Score 16 points 1 An employee of a public body may file a report of wrongdoing with an appropriate authority. Wrongdoing means action by a public body which results in substantial abuse, misuse, destruction or loss of substantial public funds and resources. It also includes an employee s allegation that another public employee has intentionally violated federal or state statutory law or regulations, or a code of ethics, which violation is not merely technical or of a minimum nature. S.C. Code Ann. 8-27-20(A). 2 Disclosures regarding workplace safety are protected. S.C. Code Ann. 41-15-510.
B. Usability: Scope of Protection (33 points possible from 10 factors) Do the laws protect disclosures made to Factor Maximum Points Awarded Points 1. Any person or organization, including public media 24 points 0 points Or does the statute protect disclosures made to 2. Any state executive or legislative 6 points 3 points 3 body or person employed by such entities 3. Testimony in any official 4 points 1 points 4 proceeding 4. Any state or federal law 3 points 3 points enforcement or investigative body or entity or its employees 5. Any federal or non-state 4 points 0 points governmental entity 6. Co-workers or supervisors within 3 points 0 points the scope of duty 7. Anyone as provided in paragraphs 2 thru 6 (above) without prior disclosure to another state official or supervisor 3 points 3 points 5 Does the state law 8. Require an investigation by state auditor or other investigative entity of whistleblower disclosures 9. Have a statute of limitations of one year or longer for filing complaints 3 points (2 points if 6 months or longer and 1 point if 60 days or longer) 3 points 6 3 Reports of wrongdoing may be filed with an appropriate authority, meaning the public body that employs the person making the report; or a federal, state, or local governmental body, agency, or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or wrongdoing...the term includes, but it is not limited to, the South Carolina Law Enforcement Division, the Solicitor's Office, the State Ethics Commission, the State Auditor, the Legislative Audit Council, and the Office of Attorney General. S.C. Code Ann. 8-27-10(3). 4 Testimony on violations of occupational health and safety statutes is protected. S.C. Code 41-15-510. 5 The only requirement is that if a report is made to an entity other than the public body employing the person making the report, the employing body must be notified as soon as practicable by the entity that received the report. S.C. Code Ann. 8-27-10(3). 6 An action under this chapter must be commenced within one year after the accrual of the cause of action. S.C. Code Ann. 8-27-30.
10. Allow qui tam or false claim actions for recovery of bounty in cases of fraud against the state 5 points (2 points if a qui tam statute of limited scope) Maximum Score 33 points 5 points 7 Awarded Score 18 points C. Strength: Remedies against retaliation (33 points possible from 11 factors) Does the statute provide for Factor Maximum Points Awarded Points 1. Prohibition on retaliatory actions 4 points 4 points 8 affecting a state employee s terms and conditions of employment 2. Opportunity for administrative 4 points 4 points 9 challenge 3. Opportunities for court challenge 4 points 4 points 4. Trial by jury 3 points 0 points 5. Burden shifting upon prima facie showing. 6. Make whole remedies (court 3 points 3 points 10 costs, attorney fees, back pay; restoration of benefits, etc.) 7. Actual/compensatory damages 3 points 2 points 11 8. Interim relief, injunction or stay 3 points 0 points of personnel actions 9. Transfer preference for prevailing 2 points 0 points whistleblower or ban on blackballing 10. Punitive damages or other fines 3 points 1 point 12 and penalties 11. Personnel actions against 3 points 3 points 13 managers found to have retaliated Maximum Score Awarded Score 7 If the employee's report results in a saving of any public money from the abuses, twenty-five percent of the estimated net savings resulting from the first year of implementation of the employee's report, but not more than two thousand dollars, must be rewarded to the employee. S.C. Code Ann. 8-27-20 8 May not dismiss, suspend from employment, demote, or decrease the compensation of an employee of a public body because such person makes a protected disclosure. S.C. Code Ann. 8-27-20. 9 Before a civil action is brought, a whistleblower employee must exhaust all available grievance or other administrative and judicial remedies. S.C. Code Ann. 8-27-30. 10 The employee may bring a civil action for reinstatement to his former position, lost wages, actual damages not in excess of $15,000, and reasonable attorney fees. S.C. Code Ann. 8-27-30(A). 11 Actual damages cannot exceed $15,000. S.C. Code Ann. 8-27-30(A). 12 The employing public body must pay the reward to the whistleblower if the disclosure results in saved public funds. S.C. Code Ann. 8-27-20(B). 13 Any public body may also impose disciplinary sanctions against any direct supervisory employees who retaliated against another employee for having filed a good faith report. S.C. Code Ann. 8-27-20(A).
33 points 21 points Bonus Point (1 point): Posting or employee notice of whistleblower rights required. Factor Maximum Score Awarded Score Posting Totals 100 points 55 points
State Legislation Protecting State Employee Whistleblowers (updated June 2018) State- South Carolina Statute- Public Officers and Employees-Employment for Reports of Violations of State or Federal Law or Regulation (Whistleblower Act) - S.C. Code Ann. 8-27-10 to -60 (2011); and Occupational Health and Safety- S.C. Code Ann. 41-15-510, 520 (2011) Provisions- Under the first statute, no South Carolina public body may dismiss, suspend from employment, demote, or decrease the compensation of an employee of a public body because such person files a report of wrongdoing with an appropriate authority. Wrongdoing refers to an action by a public body which results in substantial abuse, misuse, destruction or loss of substantial public funds and resources. It also includes an employee s allegation that another public employee has intentionally violated federal or state statutory law or regulation, or a code of ethics which violation is not merely technical or of a minimum nature. Appropriate authority means the public body that employees the person making the report, or a federal or state governmental body having jurisdiction over criminal law enforcement, regulatory violations, or wrongdoing, including the South Carolina Law Enforcement Division, the State Auditor, the Legislative Audit Council, and the Office of Attorney General. A report must be made with 180 days of the date the reporting employee first learns of the alleged wrongdoing. If a report is made to an entity other than the public body employing the person making the report, the employing body must be notified as soon as practicable by the entity that received the report. If the appropriate authority decides the employee s report is unfounded, or amounts to a mere technical violation and is not made in good faith, the public body may take disciplinary action, including termination. If the authority finds that the report has merit, a public body may also impose disciplinary sanctions, in accordance with its internal disciplinary procedures, against any direct supervisory employee who retaliated against another employee for having filed a good faith report under this statute. The statute provides for a civil action to be brought challenging the retaliatory action taken by the employing public body. After timely reporting an alleged wrongdoing, the employee may bring a nonjury civil action within one year for reinstatement to his former position, lost wages, actual damages, not in excess of $15,000, and reasonable attorney fees, as determined by the court. However, the award for attorney fees for any trial may not exceed $10,000 and $5,000 for any appeal. No action may be brought unless the employee has exhausted all available grievance or other administrative remedies and any previous proceedings have resulted in a finding that the employee would not have been disciplined but for the reporting of alleged wrongdoing. If the employee s report results in a saving of any public money, 25% of the estimated net savings resulting from the first year of implementation of the employee s report, but
not more than $2,000, must be awarded to the employee by the public body. This last award program does not supersede the State Employee Suggestion Program. An employee is only entitled to one reward under either program. Notwithstanding the filing of a report with an appropriate authority, a public body may dismiss, suspend, demote, or decrease the compensation for an employee for causes independent of the filing of a protected report. The Occupational Health and Safety Act covers state and local government employees, as well as private employees. No person shall discharge or discriminate against any employee because that employee has filed a complaint, instituted an action, or testified about any right afforded by health and safety violations. Moreover, the statute gives any employee who believes he or she has been retaliated against the right to file a complaint with the Commission of Labor within 30 days of such violation. The commissioner shall then cause an investigation to be made as he deems appropriate. Available remedies are all appropriate relief including rehiring or reinstatement of employee to his former position with back pay.