Emails, waiver provide insight into Underwood’s back pay

Stuart Defends $39K Payout

CHESTER – The process of Chester County paying Magistrate Angel Underwood $39,000 in back pay for time she was suspended from the bench began with a request from Underwood herself and ended with an agreement that upon receiving payment, she would not sue the county.

The payment made to Underwood in early 2017 is among the items Chester County Council is requesting be investigated by the State Attorney General’s Office and the South Carolina Ethics Commission. Members of the council allege that Chester County Supervisor Shane Stuart improperly authorized that expenditure (along with others) outside his powers as supervisor and without bringing the matters before them.

The impetus for the lump sum payment appears to have come from a memorandum sent from Underwood to Stuart on Nov. 15, 2016 that was recently obtained by the News & Reporter following a Freedom of Information Act request.

“On May 8, 2015, the South Carolina Supreme Court placed me on interim suspension. On September 14, 2016, the S.C. Supreme Court lifted this suspension and I was reinstated. I resumed my responsibilities on September 21, 2016. My pay continued until September 18, 2015. My last payroll check was issued on September 28, 2015. I did receive $6,000.00 in unemployment compensation during my interim suspension period. I am respectfully requesting back wages from September 18, 2015 to September 14, 2016. If you have any questions or concerns, please contact me,” she wrote in an email to Stuart.

Coincidentally, that letter was written exactly one week after the 2016 General Election during which Underwood’s husband Alex was reelected as Chester County Sheriff. It came five days after Alex Underwood (who is currently suspended from office pending a trial on multiple federal indictments) sent a letter to Cindy Goettsch, (the since-retired county director of human resources) requesting raises for four of his deputies–and one of those deputies sent Goettsch a letter requesting a raise for the sheriff. Stuart has admitted to signing off on those raises without the approval of the council, though he has argued it fell within the sheriff’s budget and did not require a vote of council.

The suspension from the bench for Magistrate Underwood came because of the alleged conflict of interest involved in her hearing cases out of the office of her husband. The suspension was enforced after the Office of Disciplinary Council filed a petition with the State Supreme Court. The court issued the order of suspension. The court’s order said the county was under no obligation to pay Underwood during her suspension and that “respondent is directed to immediately deliver all books, records, bank account records, funds, property and documents relating to her judicial office to the Chief Magistrate of Chester County. Respondent is enjoined from access to any monies, bank accounts and records related to her judicial office.”

Underwood’s “judge code” was entered as having handled 101 traffic citations, arrest warrants and bond hearings in Chester County Sheriff’s Office cases. The court administration went to the Chester County Magistrate’s Office and obtained a sampling of cases which corroborated Underwood’s involvement in cases involving the Chester County Sheriff’s Office. The final opinion on the matter stated that “in mitigation, (Underwood) states she attempted to follow the remittal of disqualification process on many of the matters, but now recognizes she did so incorrectly after having reviewed Section 3F of Canon 3 of the Code of Judicial Conduct…(Underwood) asserts she thought that she was complying with remittal requirements by announcing her conflict before the court and proceeding when no objections were voiced. She now recognizes that remittal requires that the disclosure be made on the record to each defendant, that each defendant be given time to consider the matter with counsel and that the defendant’s decision on the matter be placed on the record.”
The finding said a public reprimand was warranted “for her misconduct.” Some time after her reinstatement, she was appointed chief magistrate of Chester County, a distinction she still holds.

Her back pay was discussed via emails exchanged between Stuart and Chester County Treasurer Tommy Darby (also obtained through open records requests). For his part, Darby appears to question whether payment should have been made at all and whether it should be signed off on by the council.

“Which account did you prefer me to us(e) with regards to back paying Angel Underwood?” Stuart wrote to Darby.

“Shane, Cindy had spoken to me about this and I thought we weren’t obligated? In my opinion this would have to be a council action because it is not budgeted and an appropriation would need to be made from fund balance due to its significance. Previous budgeted funds were used to bring in Palmer (an interim magistrate) to fill in, therefore no budgeted funds were left unexpended,” Darby replied.

Stuart answered by saying “it’s true, we weren’t obligated based on the Supreme Court order. However, I’ve taken the position that we are obligated since this issue was not her fault. Will be glad to bring this to council if you think it’s needed.” Darby said that would be his suggestion since it would impact the county’s fund balance. That exchange took place in early December of 2016. On January 4, Stuart sent the following email to Darby.

“I’ve met with Joanie to discuss the back pay of Angel Underwood. She didn’t see anything that would hinder us from back paying Angel at this point and I’ve cc(‘d) her with this correspondence. In regards to over budgeting, since I already have to sign off on other over budgeted items, I certainly would be willing to do so with this as well. The amount is a bit more, however I believe if we pushed this to county council we could end up in a legal battle. I have reached out to the Senator Mike Fanning and explain(ed) all the circumstances. He is seeking any type of state reimbursements that could be available. I’m doubtful the state has anything, but we are checking out of abundance of caution. So I’d like to back pay Angel and submit a check request. In addition, we would have (County Attorney) Joanie Winters draft a release of liability memo to protect the county, as a result of (then) Senator Coleman’s miss-steps,” Stuart wrote.

The issue was not brought before the council for a vote of approval but a “waiver and release” was signed by Stuart and Underwood the next day. That agreement documents that Underwood was off the payroll for 52 weeks and two days, a time during which she “was ready, willing and able to perform her duties as Chester County Magistrate.” It states that the county would pay Underwood the full amount she would have earned during her suspension minus the unemployment benefits she received during that time period. On her end, Underwood acknowledged she was fully compensated for the relevant period and agreed not to bring related legal action against the county.

“Ms. Underwood intends to and does hereby release and covenant not to sue Chester County, Chester County’s past and present council members, past and present employees and agents, and any other persons, agencies, firms, or corporations affiliated with Chester County, of and from any and all causes of action and claims, from the beginning of time to the date this agreement is executed, which she may have on account of or in any way arising out of or in connection with her suspension or the payment of wages during the relevant period,” the document reads.

Stuart addressed the reasoning behind and need for the waiver and release with the News & Reporter last week.

“Basically, it was to protect the county, because her position was suspended by then-Senator Creighton Coleman (Underwood was suspended by Chief Justice of S.C. Supreme Court) due to an investigation that was launched and pushed by the former Senator. They suspended her, went through that process,” said Stuart.

Stuart characterized the waiver and release as a “blanket thing that is because you want to make sure that you protect the county. She was suspended for so long, and at the time I wasn’t privy to all the details of the findings (of the investigation by the S.C. Judicial Department) I just knew that we had to try to correct the wrong. I did that based on the precedent that county council set when they paid the former Clerk to Council,” said Stuart.

Stuart said at the time he wrote that email and started the process to get Underwood her back pay, he was not aware of the details of Underwood’s public reprimand. He said he was under the impression at the time that the suspension was not due to anything that she did or failed to do.

“With the reinstatement, I only acted on the fact that the Supreme Court said ‘you can come back to work,’” Stuart said.

Stuart said he felt there were a lot of political reasons why Underwood was suspended in the first place. He declined to comment on the record as to what mis-steps he believed Coleman made in connection with this issue.

Stuart said as supervisor he determined the county would pay Judge Underwood the salary she was owed while suspended based on the precedent set by Chester County Council where they did the same with former Clerk to Council Carolyn Clayton. Clayton actually held two positions before her dismissal in 2015, that being Clerk to Council and an administrative position. Stuart said he terminated Clayton from the administrative position and that she was suspended as Clerk to Council by the council (that position serves at the pleasure of Chester County Council) and still paid her back salary. Stuart said Clayton was escorted off the property when she was terminated after allegedly tampering with a public document.

“Based on that precedent, I said to protect the county (from a possible lawsuit) we had to make sure we did the same thing with the magistrate,” Stuart said.

A review of stories from Clayton’s firing reveal that the county itself did not actually compensate her for back pay. The council did, in fact, vote to suspend her with pay following the allegation she tampered with an official county meeting tape. That was in April of 2015. Stuart said a few months later that Clayton “retired at her own request” in June. She then brought a lawsuit against the county seeking back pay and the return of her old job, which was settled out of court just days before a trial was set to begin. Winters said the county itself did not choose to settle, but its insurance company did, as is its right and that the county was set to move forward on the case with confidence, if it had made it to court.

“Shane was not in favor of settling, but when you sign on with an insurance company, they have the right to settle when they so choose,” Winters said at the time.

The particulars on the financial settlement were not disclosed.

Stuart said he ran his request to pay Underwood through the county’s human resources department to determine what her pay would be, minus any unemployment benefits she received while on suspension. Stuart maintained that county council members were not informed when he determined that Judge Underwood needed to be given her back pay because they had set the precedent when they agreed to pay the Clerk to Council, and deciding to treat Judge Underwood’s situation the same fell under the day-to-day operations of a county supervisor as set down in S.C. Code Section 4-9-420. He said his position as supervisor gives him the ability to withdraw funds from the individual department and while he cannot transfer funds from one department to another, he can utilize the funds in the department how he sees fit and do it without notifying council.

“It happens all the time, because we have to use our contingency fund to cover stuff,” he said.

Stuart did say he told council he was authorizing the back pay for Underwood during the hearings on the budget that year. After his initial interview with the News & Reporter, Stuart said he checked with the county’s accounting firm and the budget information (including the back pay for Underwood) was presented to council during their budget deliberations and “discussed at the time of the meeting” Chester County Councilman Alex Oliphant said Stuart has already admitted he made the payment without the approval of council and that any assertion that the council was informed that same year “is simply not true.”

Regarding the issue of Judge Underwood’s back pay surfacing now, especially when the actions of the supervisor are under intense scrutiny and some are calling for a change in the form of county government, Stuart concluded, “I hate that it has come to this,” and maintains “this is coming up now because of Judge Underwood’s last name,” and maintains that members of the council bringing up the issue now is an ad hominem attack on him, “attacking my character but not attacking the actual facts,” Stuart said.

Next week: Fanning supports back pay for Underwood