Who could request county office space and funding for a South Carolina legislative delegation?

Plain-English summary

In 2015, a legislator asked whether one member or the entire county legislative delegation could request office space from a county council, and what the county had to provide. The South Carolina Attorney General predicted that a majority of the delegation could submit a reasonably proposed office budget. It believed the county council should then provide the necessary space, staff resources, and funds as reasonably available, considering the county’s size and ability to pay.

The office reaffirmed earlier opinions that a county should provide actual office space rather than cash payments to individual delegation members in its place. It also declined to state a required square footage or minimum appropriation. The underlying Home Rule Act provision had not been codified, and the office treated its conclusion as a prediction of how a court would resolve the question. It recommended declaratory judgment for a binding answer.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a single legislator require the county to fund a separate office?
A: The opinion predicted a majority of the delegation would approve and submit the proposed budget; it also cited its earlier view that the Act required one office for the whole delegation.

Q: Could the county pay delegation members cash instead of providing office space?
A: The Attorney General reiterated earlier opinions rejecting cash payments in lieu of actual office space.

Q: Did the opinion set a minimum office size or budget?
A: No. It left the amount of space and resources to reasonable availability and the needs of the delegation.

Background and legal framework

The office reviewed Section 3 of the 1975 Home Rule Act and its prior opinions on delegation offices. That provision described county council’s obligation to provide office space and operational appropriations, while giving the delegation a role in determining the appropriation amount. The opinion reconciled that language with county budget discretion and the practical need for a reasonable request.

Citations and references

The opinion quoted Section 3 of 1975 S.C. Acts 283 and cited S.C. Code § 15-53-20 when recommending a declaratory judgment for a binding interpretation.

Official title

Regarding office space for a county's legislative delegation.

Requester

The Honorable John Richard C. King, House of Representatives, District No. 49.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-27-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/04/King-J.-OS-9905-FINAL-Opinion-4-27-2015-00625323xD2C78.pdf

Original opinion text

0^OUTtlc?v
Alan Wilson
ATTORNEY GENERAL

April 27, 2015

The Honorable John Richard C. King
House of Representatives, District No. 49
309-A Blalt Building

Columbia, SC 2921 1
Dear Representative King:

Attorney General Alan Wilson has referred your letter dated March 17, 2015 to the Opinions section for a response.

The following is this Office's understanding of your question and our opinion based on that

understanding.
Issue (as quoted from your letter):

It is apparent, in reading former opinions, that a count}' council is required to

provide office space to the county legislative delegation pursuant to Section 3 of the Home Rule Ad of 1975, but it is not clear whether this obligation must be

satisfied upon the request of an individual member of the delegation, or if the delegation, as a whole, has to make this request. ... In addition, what specifically

are they required to provide to the delegation by way of office space and/or compensation for an office? Law/Analysis:

As you mention in your letter, this Office has previously opined on similar questions regarding the provision of office space for a county's legislative delegation.

We have previously slated that a county

council could not make cash payments to members of the delegation in lieu of actual office space. See. e.g.. Ops. S.C. Att'v Gen.. 2013 WL 3762704 (July 8, 2013); 1979 WL 43593 (September 18, 1979).

This Office also previously opined that a county must provide not only office space for the county's legislative delegation but also appropriations to run the office. Op. S.C. Att'v Gen.. 1996 WL 265502 (April 18. 1996). This Office explained: The provision of the Home Rule Act to which you are referring is found in section 3 ofAct No. 283 of 1975. which section provides in relevant part:

Under all forms of county government except the board of
commissioners form, county councils shall provide office space
and appropriations for the operation of the county legislative
delegation office including compensation for staff personnel
and necessary office supplies and equipment. The amount of
such appropriations shall be determined by the legislative
delegation and included in the annual county budget by the
council.

Rembert C. Dennis Building

The

delegation

. postOffice Box 11549

shall

be

responsible

. Columbia, sc 292 1 1-1549

for

the

• Telephone 803-734-3970

. facsimile S03-253-6283

The Honorable John Richard C. King
Page 2
April 27, 2015

employment,

supervision and discharge of all personnel

employed in the delegation office. [Emphasis added.]

This provision of the Home Rule Act has been the subject ofnumerous opinions of the Office of the Attorney General, among them opinions dated December 29,

1976; September 9, 1977; May 18, 1978; September 18, 1979; July 16, 1980; July 7, 1981; August 17, 1981; April 15, 1983; October 18, 1983; and December 22,

1988. [...] These opinions have consistently interpreted section 3 ofthe Home Rule Act to mean that a county council would be required to furnish office space and

appropriations for the operation of an office for the county legislative delegation. The delegation itself would be responsible for determining the amount of appropriated funds which would be necessary to fund the office, and county council would then be required to provide that amount. That the above-quoted portion of the Home Rule Act was not codified in the 1976 Code ofLaws [FN1] was discussed in the opinion ofDecember 22, 1988. Therein, it was stated:

In spite of the fact that the relevant portion ofsection 3 ofAct No. 283 of 1975 was omittedfrom the 1976 Code of Laws, this Office has continued to suggest that the enactment be followed, as indicated by thefive referenced opinions, the oldest ofwhich

was issued several years after the adoption of the Home Rule
Act. It is also worthy of mention that another uncodified
portion of section 3 of Act No. 283 has been discussed and
applied as late as 1986 in Graham v. Creel. 289 S.C. 165, 345
S.E.2d 717 (1986), ... .

Thus, it appears appropriate that section 3 of Act No. 283 of
1975 continue to be followed, in spite of its failure to be
codified in the 1976 Code ofLaws.

It is observed that since the 1988 opinion was rendered by the Office of the Attorney General, no legislative changes have been forthcoming. It is well recognized that the absence ofany legislative amendmentfollowing the issuance of an opinion of the Attorney General strongly suggests that the views expressed therein were consistent with legislative intent. Scheff v. Township ofMaple Shade. 149 N.J. Super. 448, 374 A. 2d 43 (1977); Op. Att'v Gen. No. 84-69. Indeed, the General Assembly has on occasion acted swiftly in amending statutesfollowing the issuance of an opinion by this Office; but such amendment has not been forthcoming in this instance. It is further observed that in the volume of the Code of Laws titled "Statutory Tables, " no reference is made to the repeal, by implication or otherwise, ofsection 3 of Act No. 283 which, as noted earlier, was once codified as § 14-3717 of the 1962 Code of Laws. Arguably,

the

Code Commissioner has therefore not

considered this section to have been repealed. [FN2] I have been unable to locate

a

legislative act expressly repealing the section. Furthermore, repeal by implication is not favored. State v. Thrift. 312 S.C. 282, 440 S.E.2d 341 (1994). It

The Honorable John Richard C. King
Page 3
April 27, 2015

is my understanding that county councils have continued to follow this uncodified provision, in various ways, since the inception of the Home Rule Act. Thus, the

provision has not been treated as repealed, due to its lack of codification, by the

State or its political subdivisions.
CONCLUSION

Based on the foregoing, it is too late in the day to argue that the county does not have an obligation to provide office space and appropriations for the operation of

the county legislative delegation office. With Home Rule came that obligation. Absent an express repeal of Section 3 of the Home Rule Act, and Ifind none, it

cannot be said that a repeal may be implied through a failure to insert this provision in the Code. Accordingly, this Home Rule requirement remains on the books. Moreover, earlier opinions of this Office conclude that the Home Rule Act

"contemplates

the establishment and maintenance

by each county of one

legislative delegation office and does not ... authorize the payment of expenses for conducting delegation business to individual delegation members who maintain private business offices of whatever nature. " Op. Att'v Gen. September 18, 1979 (Karen LeCraft Henderson). Those earlier opinions are hereby reaffirmed today. It is, therefore, my opinion that the county is obligated to provide the delegation with an office and with the appropriation deemed necessary by the delegation to operate the office, and not its members with a personal subsidy.

1996 WL 265502 (April 18, 1996). As referenced in the 1996 opinion, this Office stated in a 1976 opinion:

In response to your requestfor an opinion from this Office as to the present duties of the legislative delegation now that the provisions of Act No. 283 of 1975, the 'home rule' legislation, are operative, the following areas of concern remain within the province ofthe legislative delegation:

2. The legislative delegation is to be provided with office space, personnel,
   supplies and equipment by each county council pursuant to the provisions of Section 14-3717, CODE OF LAWS OF SOUTH CAROLINA, 1962, (Cum. Supp.).

The delegation is to determine the amount of appropriations necessary for the operation ofits office and the county council is to include that amount in its annual budget. The delegation is also responsible for the employment, supervision and discharge ofthe personnel in the delegation office. Op. S.C. Att'v Gen.. 1976 WL 30913 (December 29, 1976). This Office recognizes a long-standing rule that it will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law. Ops. S.C. Att'v Gen.. 2009 WL 959641 (March 4, 2009); 2006 WL 2849807 (September 29, 2006);

2005 WL 2250210 (September 8, 2005); 1986 WL 289899 (October 3, 1986); 1984 WL 249796 (April 9, 1984); et al. Therefore, we will not overrule previous opinions opining a county is obligated to pay for

office space and staff for the county's legislative delegation without sufficient cause.

The Honorable John Richard C. King
Page 4

April 27, 2015

We think it may be helpful to review a question this Office addressed in a 1995 opinion concerning funding by a county for a Veteran's Affairs office, as it was a question similar to yours. See Op. S.C. Att'v Gen.. 1995 WL 803555 1 (May 8, 1995). In that opinion, we stated:

Without question, the appropriation of money is a legislative function. At the county level, that function rests with county council, as to county agencies. §4-9-

140, S.C. Code Ann. (1976, revised 1986). lam of the opinion that county council has discretion to determine the extent to which a county office will be funded, in

the absence ofa statute reposing that responsibility in some other entity. Since the Veterans' Affairs Officer is one whose appointment is made by an authority outside county government, perhaps consideration could be given by the General Assembly to adoption ofa general law specifying how appropriations for the office ofthe Veterans' Affairs Officer is to be accomplished. (By way ofcontrast, 1 would refer you to S.C. Code Ann. §22-8-30, requiring each county to "provide sufficient

facilities and personnelfor the necessary and proper operation of the magistrates' courts in that county" and §14-23-1130, requiring the governing body of each county to provide, inter alia, office space, additional support personnel, books,

and the seal of the court for the probate court of that county.) Unless and until

such a statute is adoptedfor the benefit of the counties' Veterans' Affairs Officers, appropriations will, in my opinion, remain within the discretion of each county council to handle as that body determines to be appropriate. Op. S.C. Att'v Gen.. 1995 WL 8035551 (May 8, 1995). As we concluded in the 1995 opinion, unless and

until the General Assembly passes specific legislation, county appropriations remain within the discretion of the county council. Id. We would affirm that each county council would have discretion to determine

to the extent and availability of office space and would include in that office space for a legislative delegation. Certainly where there is no codified law concerning office space and funding for a legislative delegation- only practice and lack of repeal- there cannot be a finding for a requisite amount of space. As far as the monetaiy amount, we will have to revert to the original language of the Act, which states (as quoted above):

... county councils shall provide office space and appropriations for the operation of the county legislative delegation office including compensation for staff personnel and necessary office supplies and equipment. The amount of such appropriations shall be determined by the legislative delegation and included in the annual county budget by the council. 1975 S.C. Acts 283 § 3. This Office previously opined that the Act authorized the legislative delegation to determine the size and compensation of its staff without input from county council. See, e.g.. Ops. S.C. Att'v Gen.. 1989 WL 508510 (March 13, 1989); 1983 WL 181847 (April 15, 1983). This Office is aware

that the 1975 Act, while not officially repealed, has not been codified either.

However, relying on

appropriations from county council has consistently been practiced. Therefore, while the Act assumes full appropriation to the legislative delegation based on legislative request, this Office would further opine that a court would likely find that appropriations, if at all required, must, at minimum, be reasonable, which we interpret to mean consistent with the size and ability of the county to pay. Thus, we can offer no specified amount of space, nor minimum budget, as we would leave such determinations within the discretion of the county and to the needs of the delegation.

The Honorable John Richard C. King
PageS

April 27, 2015

Conclusion:

In conclusion, unless and until a court or the Legislature says otherwise, we believe a court would find

that a majority of the legislative delegation1 may submit a reasonably-proposed budget to its county council.

We think a court would then find county council should then appropriate the necessary funds,

resources and space, as reasonably available. Nevertheless, there are many other sources and authorities you may want to refer to for a further analysis.

For a binding determination, this Office would

recommend seeking a declaratory judgment from a court on these matters, as the court is charged with the interpretation of statutes. S.C. Code § 15-53-20. Until a court or the Legislature specifically addresses the issues presented in your letter, this is only a legal opinion on how this Office believes a court would

interpret the law in the matter. If it is later determined otherwise or if you have any additional questions or issues, please let us know.

Sincerely,

(JMzfeu QE- /2&OG
Anita S. Fair
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General

1 Please note this Office has previously opined the Act would only require one office for the entire delegation. See Op. S.C. Att'v Gen.. 1983 WL 182030 (October 18, 1983). As to your question to whether one member may make such a request, this Office will presume the proposed budget would reflect the needs and personnel accordingly. However, this Office has previously opined that it is likely a court will determine a majority of the county's legislative delegation should determine the number and staff of its office, since the Act states "[t]he amount of such appropriations shall be determined by the legislative delegation." On. S.C. Att'v Gen.. 1980 WL 120772 (July 16, 1980). Thus, since we believe a majority of the delegation must approve the proposed budget to be submitted to county council, we believe a court will determine a majority of the delegation may vote to eliminate the office by not submitting a proposed budget.