Senator sues over his own raise, arguing it violates SC constitution

COLUMBIA — A state senator is asking the state’s highest court to halt a $2,500-monthly raise that legislators voted for themselves.

Sen. Wes Climer, a Rock Hill Republican, filed the request Monday. He and his attorney, former Sen. Dick Harpootlian, a Columbia Democrat, contend the $18,000 annual raise approved as part of the state budget violates the state constitution.

Climer and fellow plaintiff Carol Herring, a Rock Hill resident and a friend of Climer’s, are asking the state’s highest court to throw out the raises before they take effect with the July 1 start of the fiscal year.

The state Supreme Court agreed Monday with their request to take the case directly, allowing a quick resolution.

“For a General Assembly to vote to give its own members public money is akin to a judge presiding over his own trial, or to a police officer investigating his own alleged conduct,” the legal filing reads.

The central question could become whether the state constitution’s ban on legislators increasing their own per diems actually applies to the raises.

SC legislators pass $14.7B spending plan despite concerns over legislators’ pay raise

Generally, a per diem is considered a daily allowance. Legislators do receive subsistence for each day they’re in session. Currently $240 a day, the payment is meant to cover the cost of food and lodging while they’re in Columbia, though they don’t have to spend it on that. Each legislator gets the same amount, no matter how far they live from the Statehouse, whether they get a hotel room or not.

(The daily amount can change yearly. It’s based on the prior year’s average daily rate for hotels in downtown Columbia.)

That’s in addition to legislators’ annual salary of $10,400, which hasn’t changed since 1990.

The state’s chief accountant says the in-district compensation, which is set to increase from $1,000 to $2,500 per month, is not a per diem.

Rather, it’s considered personal income and taxed accordingly, unlike the designated per diem, said Kim McLeod, spokeswoman for the Comptroller General’s Office.

In their lawsuit, Climer and Harpootlian argue the combined $22,400 legislators receive currently for their annual salary and in-district compensation counts as a per diem. The money pays legislators for their services on a daily basis while in session, making it a daily funding allotment, the lawsuit argues.

The 1868 version of the state constitution was the first to use the term “per diem” in referencing legislators’ pay. According to the lawsuit, the term was meant to differentiate between legislators’ salary, then $6 a day, and mileage reimbursements. Similar language carried over to the 1890 constitution that still governs the state.

“In the 1800s, there was no salary. There was no in-district expense. It was all per diem,” Harpootlian told reporters.

Along with prohibiting legislators from increasing their own per diems, the state constitution also requires they receive an allowance for mileage in order to travel to the Statehouse and that they get the same amount of pay for meeting outside of normal session as they do during it.

Columbia attorney and government transparency advocate John Crangle had initially offered to join the lawsuit but changed his mind after learning the comptroller general didn’t consider the money to be a per diem, he said.

Crangle still disagrees with the hike conceptually, he said.

Last month, he wrote a letter to Gov. Henry McMaster, asking him to veto the pay raises, which the Republican governor did not do. Still, Crangle said, his understanding is that, if the raise is personal income, it’s not covered by the state constitution, he told the SC Daily Gazette.

“I don’t think you can use that as the basis,” he said of the argument that the money counts as a per diem.

The in-district compensation is meant to pay for legislative expenses outside the Statehouse, though they can spend it however they want.

If the raise were a reimbursement, that might change things, the lawsuit argued. As is, the money is clearly meant to compensate legislators for their day-to-day work at the Statehouse, the lawsuit argues.

Legislators receive the in-direct compensation in monthly allotments, which are directly deposited into their bank account. They can spend the money as they please, without providing receipts or any other proof it went toward legislative expenses, Climer said.

“This is income, and the in-district expense as appropriated in the budget, is a thinly veiled increase in legislators’ income,” Climer said. “It is a pay increase that takes effect in real time.”

The last time legislators increased the in-district compensation was 1994, when they voted to increase it from $300 to $1,000 a month. But the raise didn’t start until 1995 — technically, a new Legislature following the 1994 election.

The increase was meant to offset inflation since 1995, Sen. Shane Martin, a Pauline Republican, said on the Senate floor when he introduced the proposal during the budget debate in that chamber.

But Herring said the cost of legislating should be a secondary concern to serving the people. That was why the retired teacher and Federation of Republican Women member decided to join Climer as a plaintiff, she said.

“I find that counterproductive in terms of being a good servant for our state,” Herring said.

Climer and Herring also criticized legislators for putting a pay raise in place without going through the normal legislative process, which includes public hearings.

“For shame,” the lawsuit reads. “The people of South Carolina cannot look over the shoulder of every member of the General Assembly every minute of every day.”

Legislators don’t have to take the raise.

Climer told reporters he declined the increase.

Monday was the deadline for legislators in the House to refuse the raise; 36 of the chamber’s 124 members put their name on the refusal list, according to the House clerk’s office.

Senators don’t have a deadline to turn down their raise. So far, three of the state’s 46 senators have said they won’t take the money, according to the Senate clerk’s office.

That means 39 of 170 legislators, or about 23%, are declining. All are Republicans. (See information box below.)

Other legislators have publicly said they plan to donate the additional money to charities. They include GOP Reps. Brandon Guffey of Rock Hill and James Teeple of Johns Island, who talked about those plans during the final budget debate.

Asking the state Supreme Court to let the lawsuit skip the lower courts, Climer and Harpootlian noted the normal appeals process could take years — longer than the budget is in effect. And the case would eventually reach the justices anyway.

Technically, the raise is only for the 2025-26 budget, which is a one-year law. But it would stay in effect indefinitely. That’s because spending directives in the budget, called provisos, generally roll over from one budget year to the next, unless legislators take action to remove them.

The justices need to rule before the raises take effect, the lawsuit reads, because it could be impossible to force legislators to pay the money back if the payments are later found unconstitutional.

“It is unclear whether those payments could be clawed back months or years after legislators spent the money on their personal affairs,” it reads.

Editor’s note: This article was updated Tuesday, June 10, to reflect that two additional Republicans in the House refused their raise, bringing the total to 39 legislators. They were allowed to add their name to the refusal list after the House’s official deadline.