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

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Sen. Wes Climer, R-Rock Hill, in Senate chambers on opening day of the 2024 session, Tuesday, Jan. 9, 2024, at the Statehouse in Columbia. Climer is a plaintiff in a lawsuit claiming a pay raise for legislators is unconstitutional. (Mary Ann Chastain/Special to the SC Daily Gazette)
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, who is identified in the lawsuit as a taxpayer, are asking the state's highest court to stop the payments before 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 a specifically designated $230 subsistence payment for each day of session.
That's 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 where they live.
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 addressing 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.
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 disagreed with the raise conceptually, he said. But in his understanding, considering the raise to be personal income would mean the state constitution doesn't cover it, he said.
'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. The money comes in a lump sum, not a reimbursement, so legislators don't have to report how they spend it.
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.
'Most importantly, there are no restrictions on how members may use this money — they may use it entirely for any personal purposes,' the lawsuit reads. 'Periodic payments of money, reported and taxed as personal income, with no restrictions on use for personal purposes, to which the recipient is entitled because of services provided to the entity paying the money, are compensation.'
Climer and Herring also criticized legislators for putting a pay raise in place without going through the public hearing process typical of a piece of legislation.
'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.
Some, including GOP Reps. Kathy Landing of Mount Pleasant and Sarita Edgerton of Spartanburg, have publicly said they plan to refuse the raise. Others, such as GOP Reps. Brandon Guffey of Rock Hill and James Teeple of Johns Island, said they planned to donate the money to charities.
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.
This is a developing story. Check back for details.