Fairfield County voters sue 3 county council members

L to R: Mikel Trapp, Mary Lynn Kinley and David Ferguson
L to R: Mikel Trapp, Mary Lynn Kinley and David Ferguson

FAIRFIELD COUNTY, SC (WIS) - Three Fairfield County council members are facing a legal challenge from 16 taxpayers after receiving tax dollars the South Carolina Attorney General's Office said are unconstitutional. The 16 county taxpayers filed the lawsuit last month against council members David Ferguson, Mary Lynn Kinley and Mikel Trapp.

The suit comes after voters found out earlier this year that the three were receiving monthly payments from the county. Those payments were for county health insurance Ferguson, Kinley and Trapp didn't choose to accept. Instead of not accepting the insurance benefit, the three decided to accept cash payments from the county in lieu of the benefit.

"No resolution, no response, no respect, no accountability—nothing," Fairfield County voter Jeff Shaffer told WIS. Shaffer is one of the taxpayers suing the council members. Shaffer's group gave the three council members 30 days to agree to repay the county the money they accepted. None of the three responded to Shaffer after he said he gave them all an additional 30 days to do so.

"To put yourself in litigation over a matter the Attorney General tells you--you have to pay this back--it's illegal. That's what has dumbfounded everyone in Fairfield County. We're all walking around; what is that? Why are they doing that?" Shaffer said. Had the council members responded, Shaffer added, his group would have never filed suit.

County records show the following payment totals to the three council members between 2008 and 2013:

David Ferguson: $24,255

Mary Lynn Kinley: $23,505

Mikel Trapp: $24,630

Councilman Trapp received even more tax dollars on top of the health insurance benefit. County finance records show between April 2011 and January 2013, the county's paid Trapp's tuition to Columbia College, a private women's college in North Columbia. The county approved $26,806 to fund Trapp's tuition. Records show those tax dollars even went to pay off student loans Trapp secured.

In July, the Attorney General's office issued an opinion, calling the $26,806 in college tuition paid to Councilman Mikel Trapp "suspect" and something Fairfield County had no legal right to do. The opinion went on to state, the cash in lieu of insurance "violates" the South Carolina Constitution and a "departure from the law for the county to pay these members in such a manner."

We went to Fairfield County council meetings to ask Ferguson, Kinley and Trapp about the lawsuits. "Have you made arrangements to pay that money back," Barr asked Kinley. "Mr. Barr, I've already answered that question for you. I've told you at the appropriate time, once that investigation is finished, I would make a decision then." "You realize there are some tax payers suing you all to get that money back," Barr asked. "I understand that, but I have no further comment, thank you," Kinley said.

"Do you intend though to pay any of that money back," Barr asked Ferguson. "I have an attorney and if you have any more questions, I would request you talk to him, okay?" Ferguson said. "As the elected official here and chair of this council," Barr said before Ferguson interrupted, "I'm already through, thank you."

We tried to find Trapp after he failed to show for multiple council meetings during the course of our investigation. On Nov. 21, we emailed Trapp seeking an interview. On Nov. 22, we went to Trapp's home and left a note on the door. Later that day we went to Spring Valley High School where Trapp works as a construction teacher. We left a message with the school's front desk for Trapp to call us.

Later that day, Trapp returned our Nov. 21 email. Trapp wrote, "Mr. Barr, I have no comment."

In August, Trapp issued WIS a statement, saying he made arrangements to repay the tuition assistance and he is waiting to hear from his attorney regarding the cash payouts for insurance. "After reviewing the premiums for supplemental insurance, the Administrator came to council with a request that they be given funds to buy their own supplemental insurance policies because it was so expensive for the county to purchase," Trapp said in a statement released to WIS. "The arrangement offered to us at half of what it would cost the county to insure us. The insurance funding was approved without another option."

"As a benefit that already had been awarded to council members (Since 1999), we could not have supplemental insurance taken away," continued Trapp's statement. "We voluntarily joined in the phasing out of the policy and received cash payments to purchase an outside insurance. It was recently brought to the county's attention from an Attorney General's opinion that elected officials cannot receive cash payouts instead of insurance."

"Up until July 9, 2013, I was receiving Tuition Assistance through the Fairfield County's Tuition Assistance Policy offered upon approval to ALL county employees," said Trapp's statement. "It was recently brought to the county's attention from an Attorney General's opinion that elected officials cannot participate in the county's Tuition Assistance Program. Therefore, as of July 9, 2013, I will no longer receive tuition assistance from the county, and arrangements have been made to repay all funds received."

On July 9, Fairfield County discontinued the cash in lieu of insurance and Trapp's tuition payments until the county's attorney determined whether the Attorney General's opinion of the legality of the payments was correct.

The opinion continued, if a court finds these payments are "prohibited by law," there may be "personal liability for the wrongful receipt or payment of such funds."

As of this report, the only council member to respond to the lawsuit is Mary Lynn Kinley, according to the Fairfield County Clerk of Court office. On Nov. 20, Kinley filed a motion to dismiss. Her hearing is set for January 9.

The clerk's office told WIS, they do not have responses from Ferguson or Trapp as of this report.


Within days of receiving the South Carolina Attorney General's July 8, 2013 opinion, Fairfield County hired John Moylan, III of the Wyche Law Firm in Columbia, according to county council chairman David Ferguson. The county wanted Moylan to research whether the Attorney General's opinion was accurate when it found the payments to council members violated the state's Constitution.

Fairfield County businessman, Jimmy Ray Douglas, filed a Freedom of Information Act request to find out how much the county's spent on Moylan's research so far. In a Nov. 4, 2013 letter from Fairfield County Comptroller, Laura Johnson, the county has spent $7,805.58 on attorneys fees "for advice about certain council expense payments," according to the letter.

We tried to question Ferguson about the legal fees following a Nov. 18 council meeting. Ferguson was walking into his office inside the county administration building and shut the door on us while we asked him about the spending. We found Ferguson in the parking lot outside and asked him who his attorney is, "The man I pay," Ferguson said. When asked whether the county was paying Moylan, Ferguson responded, "I don't know yet."

Councilwoman Mary Lynn Kinley wouldn't answer our questions about the nearly $8,000 the county has spent on attorney fees, "Almost $8,000 the county's spent on attorneys to tell you all whether you should pay it back, anything you want to tell taxpayers about that amount of money," Barr asked. "No comment, Mr. Barr. I've told you that before," Kinley responded.

"They put that expense of hiring the attorneys, getting a lawsuit on the citizens that are paying their taxes that elected them. I think that's an insult," Shaffer told WIS.

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