OF CERTIORARI TO THE COURT OF APPEALS
from Horry County Deadra L. Jefferson, Trial Court Judge
Charles Franklin Thompson Jr., of Malone, Thompson, Summers
& Ott, LLC, of Columbia, for Petitioner.
Henrietta U. Golding and James K. Gilliam, both of McNair Law
Firm, of Myrtle Beach, for Respondent.
court of appeals affirmed a jury verdict for Jacklyn Donevant
in her wrongful termination action against the Town of
Surfside Beach, finding her cause of action fit within the
public policy exception to the at-will employment doctrine.
Donevant v. Town of Surfside Beach, 414 S.C. 396,
778 S.E.2d 320 (Ct. App. 2015). The Town contends the court
of appeals' decision "greatly expanded the public
policy exception." We find the Town has misinterpreted
the court of appeals' opinion. We affirm.
court of appeals set forth the facts of the case in detail.
414 S.C. at 399-404, 778 S.E.2d at 322-25. We summarize below
those facts necessary to explain our interpretation of the
court of appeals' opinion.
South Carolina Building Codes Council is responsible for adopting
the building code that applies throughout the state.
See S.C. Code Ann. §§ 6-9-40(A), 6-9-50(A)
(Supp. 2017); 1 S.C. Code Ann. Regs. 8-236 (2011). The
Council has adopted the International Building Code.
See 1 S.C. Code Ann. Regs. 8-800 (Supp. 2017). Each
municipality is responsible for enforcing this building code
in its jurisdiction. See S.C. Code Ann. §
6-9-10(A) (Supp. 2017) (requiring all municipalities enforce
the building code adopted by the South Carolina Building Code
Council). Before she was fired, Donevant served as the
Town's "building official, " a position each
municipality is required to fill. S.C. Code Ann. §
6-9-30(A) (Supp. 2017). The building official's
responsibilities are defined in the State regulations.
See 1 S.C. Code Ann. Regs. 8-105 (2011) (defining
"building official" as "the officer designated
by a local jurisdiction, who is charged with the
administration and enforcement of Building Codes").
Chapter 1 of the building code provides, "The building
official shall . . . enforce compliance with the provisions
of this code" and "shall issue all necessary
notices or orders to ensure compliance." Int'l Bldg.
Code §§ 104.2, 104.3 (2006).
building code requires anyone "who intends to construct,
enlarge, alter, [or] repair . . . a building . . . shall
first . . . obtain the required permit." Int'l Bldg.
Code § 105.1. The building code further provides,
"It shall be unlawful for any person . . . to erect,
construct, alter, . . . [or] repair . . . any building . . .
in conflict with or in violation of any of the provisions of
this code." Int'l Bldg. Code § 113.1. Donevant
discovered unpermitted construction work she determined to be
in violation of the building code, and she issued a stop work
order. She was fired a few days later.
Legislature established the general public policy of
enforcing the building code in subsection 6-9-5(A) of the
South Carolina Code (Supp. 2017), which provides, "The
public policy of South Carolina is to maintain reasonable
standards of construction in buildings and other structures
in the State consistent with the public health, safety, and
welfare of its citizens." The Legislature set forth the
specific requirements of that policy by requiring every
municipality to enforce the building code. § 6-9-10(A).
As the Town's building official, Donevant was charged by
State and local law to carry out this policy. See
supra, discussion of S.C. Code Ann. § 6-9-30(A), 1
S.C. Code Ann. Regs. 8-105, and Int'l Bldg. Code
§§ 104.2, 104.3. When she discovered construction
work being done without a permit, which she correctly
determined to be in violation of the building code, it became
her mandatory responsibility to "ensure
read this record and the court of appeals' opinion,
Donevant was fired because she carried out her mandatory
responsibility under the law to enforce the provisions of the
building code. The jury charge and the closing arguments are
not in the record, which prevents us from determining the
precise factual question the trial court put before the jury.
However, during oral argument at the court of appeals,
"the Town conceded that the reason Donevant was fired is
not an issue on appeal." Donevant, 414 S.C. at
408, 778 S.E.2d at 327. Therefore, based on the record as it
appears to us, the question on appeal is whether it is a
violation of a clear mandate of public policy to fire a
building official for enforcing the building code.
Ludwick v. This Minute of Carolina, Inc., 287 S.C.
219, 225, 337 S.E.2d 213, 216 (1985). As the court of appeals
held, the answer is "yes." This case fits squarely
within the long-established limits of the public policy
exception to the at-will employment doctrine because firing
Donevant for enforcing the building code violates a clear
mandate of public policy. See Barron v. Labor Finders of
S.C., 393 S.C. 609, 614, 713 S.E.2d 634, 636-37 (2011)
("Under the 'public policy exception' to the
at-will employment doctrine . . . an at-will employee has a
cause of action in tort for wrongful termination where there
is a retaliatory termination of the at-will employee in
violation of a clear mandate of public policy." (citing
Ludwick, 287 S.C. 219, 337 S.E.2d 213)).
Town makes several arguments to support its contention the
court of appeals' decision expands the public policy
exception, each of which we find the court of appeals
effectively refuted. We address in particular only one of
those arguments- the argument Donevant's claim does not
fit within the public policy exception because her decision
to issue a stop work order was discretionary under Antley
v. Shepard, 340 S.C 541, 532 S.E.2d 294 (Ct. App. 2000),
aff'd as modified, 349 S.C. 600, 564 S.E.2d 116
(2002). In Antley, the court of appeals held the
public policy exception does not apply when an employee is
fired for taking action she is "permitted, but not
required" by law, to take. 340 S.C. at 549, 532 S.E.2d
at 298. The Town argues the court of appeals' decision is
in conflict with Antley because she was fired for
taking the discretionary action of issuing a stop work order.
not read the court of appeals' opinion to be in conflict
with Antley. Distinguishing Antley from
this case, the court of appeals explained that "unlike
Antley, where the statutes 'permitted but did
not require' the tax assessor to take action, the
statutory and building code provisions at issue here
required Donevant's actions of enforcing
compliance with the building code." 414 S.C. at 413, 778
S.E.2d at 329 (quoting Antley, 340 S.C. at 549, 532
S.E.2d at 298) (emphasis in original). Thus, according to the
court of appeals, Antley does not control this case
because Donevant was not fired for taking the discretionary
action of issuing the stop work order. Rather, she was fired
for carrying out the building official's mandatory legal
duty to "enforce compliance" with the building
code. We agree with the court of appeals. While some
statements in the court of appeals' opinion may suggest
Donevant was fired for taking the discretionary action of
issuing the stop work order,  the basis of the court's
decision-with which we agree-is ...