Could Barnwell’s city council contract for sewer service outside city limits without a public works commission?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that Barnwell City Council could directly enter the kind of sewer service agreement described in the statute for persons or political subdivisions outside city limits. The sewer provision allowed municipalities to act through “proper officials” or public works and sewer bodies. A separate statute specifically said Barnwell had no board of commissioners of public works and vested such a board's powers in city council. Reading the two together, the AG found council a proper contracting body.

The question followed an earlier opinion about extending Barnwell's sewer system, but not its water system, beyond city boundaries. This follow-up addressed who could act for the city where no separate commission existed. It did not approve a particular contract's terms.

Currency note

This opinion was issued in 2011. 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

Did Barnwell need a public works commission to make an outside-city sewer agreement? A: No. The AG said the city-specific statute put commission powers in Barnwell City Council.

Could council act directly for the city?
A: Yes. Taken together, the two statutes made council a proper body to enter the described agreement.

Did the statute permit contracts with noncontiguous areas? A: The provision quoted in the opinion covered persons or political subdivisions outside municipal limits “whether contiguous thereto or not.”

Did the opinion approve a contract lasting any number of years? A: No. The quoted statute included a thirty-year maximum from a contract's effective date, and the AG did not examine a particular agreement.

Background and statutory framework

Barnwell's counsel asked whether the city could act without a sewer or public works commission. The AG quoted the general sewer contracting provision and the city-specific provision transferring commission duties to council. Its short answer rested on their combined text.

Citations and references

The opinion quotes Section 5-31-890 on sewer agreements and Section 5-31-230 on Barnwell's council powers.

Official title

Concerning the application of  section 5-31-890 of the South Carolina Code (2004) to a municipality that does not have a board of commissioners of public works, a sewerage commission, or other like body.

Requester

Thomas M. Boulware, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-12-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/12/boulware-t-m-os-9347-12-12-11-ability-of-city-of-Barnwell-to-extend-its-sewer-system.pdf

Original opinion text

ALAN WILSON

ATIORNEY GENERAL

December 12, 2011

Thomas M. Boulware, Esquire
Brown, Jeffries & Boulware
19 Jefferson Street
Barnwell, South Carolina 29812
Dear Mr. Boulware:
You have requested an opinion of this Office in follow-up to our opinion dated September 27, 2011, concerning the ability of the City of Barnwell to extend its sewer system-but not its water system-to a location beyond its municipal boundaries. Your follow-up question concerns the application of section 531-890 of the South Carolina Code (2004) to a municipality that does not have a board of commissioners of public works, a sewerage commission, or other like body. You indicate that the City of Barnwell has no such entity, and therefore, you inquire whether the City may "act directly" to enter a contract of the kind contemplated by section 5-31-890. · Section 5-31-890 provides: All municipalities in this State owning, controlling, leasing or planning to construct a system of sewage disposal with or without outfalls, rights of way, easements and appurtenances thereto, may, through proper officials, commissioners of public works, sewer commissions or any of them or like bodies, enter into contracts and agreements with persons or political subdivisions outside the corporate limits of such municipalities, whether contiguous thereto or not, for the construction, maintenance, operation, improvement, leasing, controlling or furnishing the use, benefits and facilities thereof upon such terms and at such rates and charges as may be fixed by the contract or agreement between the parties when, in the judgment of the proper officials, commissioners of public works, sewer commissions, or any of them or like bodies, as the case may be, it is for the best interest of the city, town or municipality so to do. But no such contract or agreement shall be for a period exceeding thirty years from the effective date thereof. Nothing herein contained shall be construed as abrogating, limiting or qualifying any contracts or agreements of the nature set forth herein which may have heretofore been entered into and under which the parties thereto are operating. (Emphasis added).

REMBERT

c. DENNIS BUILDlNG • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Thomas M. Boulware, Esquire
Page2
December 12, 2011

Section 5-31-230 of the South Carolina Code (2004 & Supp. 2010) provides that in the City of Barnwell-as well as in a number of other cities and towns- "there shall be no board of commissioners of public works but in these cities and towns the duties, powers and responsibilities vested in such boards in other cities and towns shall be vested in the respective city or town councils ...." 1 Taken together, these provisions indicate that city council would be a proper body to enter a contract of the kind described in section 5-31-890. Very truly yours,

Dana E. Hofferber
Assistant Attorney General
REVIEWED AND APPROVED BY:

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ilObertD:COOk

Deputy Attorney General

CC:

Karen Blair Manning, Esquire
South Carolina Department of Commerce
1201 Main Street, Suite 1600
Columbia, South Carolina 29201

The statute goes on to list certain exceptions not applicable to the City of Barnwell.