Could Allendale include mayor and council pay raises in its budget ordinance instead of passing a separate salary ordinance?

Plain-English summary

Allendale asked whether an annual budget ordinance that included salary increases for its mayor and council satisfied the 1996 requirement to set those salaries by ordinance. The AG said the statute required an ordinance but did not specify a separate salary-only enactment. He considered the form of the ordinance a matter the council could determine under its procedural authority.

The opinion did not remove the statutory timing rule for raises: an establishing or increasing ordinance could not take effect until the specified terms began for members elected at the next general election. The AG also suggested clarity about effective dates and which parts of a budget ordinance would continue beyond the fiscal year. He did not prescribe a particular ordinance form as mandatory.

Currency note

This opinion was issued in 1996. 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: Did a salary increase need its own separate ordinance? A: The AG found no statutory requirement for a separate salary-only ordinance and said the council appeared able to choose an appropriate ordinance form.

Q: Could a budget ordinance make the raise effective immediately? A: The opinion quoted a statutory delay tied to the start of terms for members elected at the next general election; using a budget ordinance did not eliminate that condition.

Q: Why did the opinion discuss temporary and permanent provisions? A: An annual budget could contain provisions meant to lapse and others meant to continue. The AG suggested specifying effective dates and the continuing nature of provisions that would not lapse.

Background and statutory framework

Section 5-7-170 required mayor and council salary levels to be set by ordinance and delayed the effect of an increase. The AG found neither that provision nor Section 5-7-260 prescribed a salary-only ordinance. He pointed to Section 5-7-250(b) on the council’s ability to determine its own procedural rules.

Citations and references

Statutes discussed: Section 5-7-170; Section 5-7-260; Section 5-7-250(b).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-8-1996-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96apr8harvey.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

April 8, 1996

J. Martin Harvey, Esquire
Allendale Town Attorney
Post Office Box I 005
Barnwell, South Carolina 29812
RE: Informal Opinion
Dear Mr. Harvey:
By your letter of March 4, 1996, to Attorney General Condon, you have sought an opinion as to whether S.C. Code Ann. §5-7-170 (1995 Cum. Supp.) would be satisfied by the adoption of a budget ordinance which includes salary increases for the mayor and members of the Town Council of the Town of Allendale. Put another way, you have asked whether a separate ordinance must be adopted specifically to address mayor and council salaries prior to a salary increase being implemented. Section 5-7-170 provides as follows: The council may determine the annual salary of its members by ordinance; provided, that an ordinance establishing or increasing such salaries shall not become effective until the commencement date of the terms of two or more members elected at the next general election following the adoption of the ordinance, at which time it will become effective for all members whether or not they were elected at such election. The mayor and council members may also receive payment for actual expenses incurred in the performance of their official duties within limitations prescribed by ordinance. You have advised that on June 27, 1995, the Town Council of the Town of Allendale adopted by ordinance its Fiscal Year 1996 Budget which incorporated a slight RE~IBERT C. DE:-;SJS BULDl1'G

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POST OFFICE Box 11549

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CoLl'~IBIA.

s.c. 29211 - 1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

J. Martin Harvey, Esquire
Page 2
April 8, 1996

increase in salaries to be paid to the Mayor ($3,000.00 a year) and Council members ($2,400.00 a year each). In keeping with §5-7- 170, the salaries are to become effective only after the municipal elections scheduled for April 2, 1996. Thus the question arises: was the salary increase as adopted in the budget ordinance sufficient, or must a separate ordinance be adopted? Section 5-7-170 requires that the salary of mayors and members of a council be set by ordinance; the statute is silent as to whether such must be accomplished by a separate ordinance, or whether such may be incorporated with some other ordinance (such as a budget ordinance). Section 5-7-260 lists those acts of a municipal council which are required to be done by ordinance, the list being in addition to those acts which are required by other laws to be accomplished by ordinance; §5-7-260 does not give any additional guidance as to the ordinance relative to salary increases, however. Section 5-7250(b) of the Code states in part that "[t]he council shall determine its own rules ... ." The procedure or form for adoption of an ordinance increasing salaries may well be left to the determination of council, since no procedure is prescribed outside the requirement that such be accomplished by ordinance. By way of analogy, I would advise that the General Assembly adopts an annual appropriations act detailing the expected revenues and expenditures of the State of South Carolina for the next succeeding fiscal year. The act is generally divided into two parts, one for the upcoming fiscal year, the provisions of which will ordinarily lapse on Jun~ 30 of that fiscal year, and a second part detailing permanent provisions of law which will not lapse at the end of that fiscal year. Using the annual state appropriations act for guidance, it is possible to combine temporary and permane:it provisions in a single legislative act. Care should probably be taken to specify the effective dates of each type of provision and the continuing nature of the provisions which will not lapse at the end of the ·fiscal year. In conclusion, I would advise that the statutes relative to adoption of ordinances by a municipal governing body do not contain specific guidance as to how an ordinance increasing salaries of the mayor and council members should be adopted. It thus appears that the municipal council may determine, in accordance with §5-7-250, an appropriate manner in which to adopt such an ordinance. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

J. Martin Harvey, Esquire
Page 3
April 8, 1996
With kindest regards, I am
Sincerely,

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Patricia D. Petway
Senior Assistant Attorney General

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