H 4514 General Bill, By M. McLeod, Harvin and Moody-Lawrence
 A BILL TO AMEND TITLE 8, CODE OF LAWS OF SOUTH CAROLINA, 1976, AS AMENDED,
 RELATING TO PUBLIC OFFICERS AND EMPLOYEES, BY ADDING SECTION 8-1-115, SO AS TO
 CREATE A GENERAL LIEN UPON THE REAL AND PERSONAL PROPERTY, INCLUDING WAGES,
 ANNUITIES, PENSIONS, AND CHOSES IN ACTION, OF ANY PUBLIC OFFICER, EMPLOYEE, OR
 ANY OTHER PERSON WHO IS FOUND GUILTY OF AN OFFENSE INVOLVING EMBEZZLEMENT OR
 APPROPRIATION OF PUBLIC FUNDS OR PROPERTY TO PRIVATE USE, TO THE EXTENT OF THE
 TOTAL LOSS, DAMAGE OR EXPENSE TO THE STATE, OR TO A COUNTY, MUNICIPALITY, OR
 OTHER POLITICAL SUBDIVISION OF THE STATE, TO PROVIDE FOR FILING A NOTICE OF
 LIEN, TO PROVIDE THAT AN ACTION TO ENFORCE THE LIEN CREATED BY THIS SECTION
 MAY BE BROUGHT AT ANY TIME UP TO THREE YEARS AFTER THE DEATH OF A PERSON WHOSE
 REAL AND PERSONAL PROPERTY IS SUBJECT TO THE LIEN, TO PROVIDE FOR SATISFACTION
 AND DISCHARGE OF THE LIEN CREATED BY THIS SECTION BY THE ATTORNEY GENERAL OR
 HIS DESIGNEE; TO AMEND SECTION 9-1-1680, RELATING TO EXEMPTION OF ANNUITY AND
 RETIREMENT ALLOWANCES AND CONTRIBUTIONS FROM TAXATION AND LEGAL PROCESS, SO AS
 PROVIDE THAT ANNUITY AND RETIREMENT ALLOWANCES AND CONTRIBUTIONS OF PUBLIC
 OFFICERS AND EMPLOYEES CONVICTED OF AN OFFENSE INVOLVING EMBEZZLEMENT OR
 APPROPRIATION OF PUBLIC FUNDS OR PROPERTY TO PRIVATE USE ARE SUBJECT TO THE
 GENERAL LIEN CREATED BY SECTION 8-1-115 AND THE DOCTRINE OF CONSTRUCTIVE TRUST
 EX MALEFICIO; AND TO PROVIDE FOR THE RETROACTIVE AND PROSPECTIVE APPLICATION
 OF THE REMEDIAL ASPECTS OF THIS ACT.

   02/01/00  House  Introduced and read first time HJ-5
   02/01/00  House  Referred to Committee on Judiciary HJ-6

TO AMEND TITLE 8, CODE OF LAWS OF SOUTH CAROLINA, 1976, AS AMENDED, RELATING TO PUBLIC OFFICERS AND EMPLOYEES, BY ADDING SECTION 8-1-115, SO AS TO CREATE A GENERAL LIEN UPON THE REAL AND PERSONAL PROPERTY, INCLUDING WAGES, ANNUITIES, PENSIONS, AND CHOSES IN ACTION, OF ANY PUBLIC OFFICER, EMPLOYEE, OR ANY OTHER PERSON WHO IS FOUND GUILTY OF AN OFFENSE INVOLVING EMBEZZLEMENT OR APPROPRIATION OF PUBLIC FUNDS OR PROPERTY TO PRIVATE USE, TO THE EXTENT OF THE TOTAL LOSS, DAMAGE OR EXPENSE TO THE STATE, OR TO A COUNTY, MUNICIPALITY, OR OTHER POLITICAL SUBDIVISION OF THE STATE, TO PROVIDE FOR FILING A NOTICE OF LIEN, TO PROVIDE THAT AN ACTION TO ENFORCE THE LIEN CREATED BY THIS SECTION MAY BE BROUGHT AT ANY TIME UP TO THREE YEARS AFTER THE DEATH OF A PERSON WHOSE REAL AND PERSONAL PROPERTY IS SUBJECT TO THE LIEN, TO PROVIDE FOR SATISFACTION AND DISCHARGE OF THE LIEN CREATED BY THIS SECTION BY THE ATTORNEY GENERAL OR HIS DESIGNEE; TO AMEND SECTION 9-1-1680, RELATING TO EXEMPTION OF ANNUITY AND RETIREMENT ALLOWANCES AND CONTRIBUTIONS FROM TAXATION AND LEGAL PROCESS, SO AS PROVIDE THAT ANNUITY AND RETIREMENT ALLOWANCES AND CONTRIBUTIONS OF PUBLIC OFFICERS AND EMPLOYEES CONVICTED OF AN OFFENSE INVOLVING EMBEZZLEMENT OR APPROPRIATION OF PUBLIC FUNDS OR PROPERTY TO PRIVATE USE ARE SUBJECT TO THE GENERAL LIEN CREATED BY SECTION 8-1-115 AND THE DOCTRINE OF CONSTRUCTIVE TRUST EX MALEFICIO; AND TO PROVIDE FOR THE RETROACTIVE AND PROSPECTIVE APPLICATION OF THE REMEDIAL ASPECTS OF THIS ACT.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 1, Title 8 of the 1976 Code is amended by adding:

"Section 8-1-115. (A) There is hereby created a general lien upon the real and personal property, including present and future wages, annuities, pensions, pension benefits, and choses in action, of any public officer, public employee, or any other person who is convicted of an offense involving embezzlement or appropriation of public funds or public property to the private use of himself or any other person, to the extent of the total loss, damage, and expense to the State, or to a county or municipality, or to any agency or political subdivision of the State, or to any state, county or municipal agency, any college or university, or to any school, special or public service district within the State, that is authorized by law to perform a governmental function or provide a governmental service. Except as otherwise provided by law, the lien created by this section attaches when the act constituting the offense giving rise to the lien is committed.

(B) The presiding judge before whom any public officer, employee, or any other person is convicted of an offense described in subparagraph (A) must send to the Attorney General and to the clerk of court and the register of deeds in those counties having such officer and the judge of probate of the county of the convicted person's known or last known residence a notice of the lien showing the name of the person convicted whose real and personal property is subject to the lien created by subsection (A) and the date of the conviction which is the date upon which the lien attaches. The presiding judge's notice of lien may state the amount of the lien if known, but need not state the amount of the lien if the true amount of the lien is unknown or cannot be determined at the time notice of the lien is required to be filed. The notice of lien must be filed in the offices of the clerk of court or the register of deeds in those counties having such officer and the judge of probate in each county in which the person convicted then owns or thereafter acquires real or personal property. No charge shall be made for this filing. From the time of filing in either office, the presiding judge's notice of lien is notice of the lien against all property then owned or thereafter acquired by the person convicted.

(C) In addition to any other sentence imposed upon a person convicted of an offense described in subparagraph (A), the presiding judge may require full restitution of all public funds embezzled and full payment for the conversion, use, and value of public property appropriated to private use, and may provide for an indeterminate sentence of incarceration or probation, or both, until restitution in full has been made.

(D) The Attorney General is charged with an affirmative duty to recover public funds and property embezzled or converted to private use, or the value thereof, and he or his designee may bring an action to enforce the lien created by this section at any time up to three years after the death of a person whose real and personal property is subject to the lien created by subsection (A).

(E) A person who receives real or personal property subject to the lien created by this section who has actual or constructive knowledge of the lien, or of facts giving rise to the attachment of the lien against the property of another, is not a bona fide purchaser for value or a holder in due course.

(F) The Attorney General or his designee may file a satisfaction and discharge the lien created by this section after restitution has been made by payment of the amount of the lien in full.

(G) The lien created by this section and the action to enforce the lien are cumulative and in addition to all other remedies provided by law."

SECTION 2. Section 9-1-1680 of the 1976 Code, as last amended by Act 189 of 1989, is further amended to read:

"Section 9-1-1680. Except as provided in Section 8-1-115, and subject to the doctrine of constructive trust ex maleficio, The the right of a person to an annuity or a retirement allowance or to the return of contributions, an annuity, or retirement allowance itself, any optional benefit, or any other right accrued or accruing to any person under the provisions of this chapter, and the monies of the system created under the provisions of this chapter or any private retirement system operated by a municipality, are exempted from any state or municipal tax, except the taxes imposed pursuant to Chapters 7 15, 6 and 16 of Title 12, and exempted from levy and sale, garnishment, attachment, or any other process and are unassignable except as specifically otherwise provided in this chapter."

SECTION 3. This act is intended to create remedies to more efficiently recover restitution due to state and local governmental entities in cases involving embezzlement or appropriation of public funds or public property to the private use of a public officer or employee, or any other person. As such, it is remedial legislation intended to be retroactive as well as prospective in its application, so as to attach the general lien created by Section 8-1-115(A) to the real and personal property, including present and future wages, annuities, pensions, pension benefits, and choses in action, of any living person who has been convicted of an offense described in Section 8-1-115(A). In cases where a living person was convicted of an offense described in Section 8-1-115(A) before the effective date of this act, the lien attaches to their real and personal property, including present and future wages, annuities, pensions, pension benefits, and choses in action, immediately upon approval of this act by the Governor. In cases concluded before the effective date of this act the Attorney General or his designee may file the notice of lien required by Section 8-1-115(B) instead of the presiding judge.

SECTION 4. This act takes effect upon approval by the Governor.