Could a Columbia resident serve on the Richland County Recreation Commission or recommend its appointees?

Plain-English summary

In 2017, a South Carolina senator asked two related questions about Richland County's Recreation Commission. The Attorney General said a commissioner had to be a resident elector of the recreation district, whose boundaries excluded the city of Columbia. A Columbia resident therefore could not be appointed to the commission.

The rule was different for the legislators recommending commissioners to the governor. The AG found no parallel residency restriction for members of the Richland County Legislative Delegation. It predicted that delegation members living within Columbia could participate in selecting recommendations. The opinion relied on the district's local acts and the court decision that had invalidated a later attempt to move the recommendation power to county council.

Currency note

This opinion was issued in 2017. 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 someone living in Columbia be a recreation commissioner?
A: The AG said no. The local act required commissioners to live in the district, which excluded Columbia.

Q: Could a Columbia-based legislator help recommend a commissioner?
A: Yes, under the AG's 2017 reading. The act did not apply the commissioner's residence rule to recommending legislators.

Q: Had the recommendation power shifted to county council?
A: The opinion explained that a 2005 act attempting that shift had been held unconstitutional by the South Carolina Supreme Court.

Background and statutory framework

The AG traced 1960 Act No. 873 and later amendments, including 1976 Act No. 581. It treated the 1976 act as controlling the seven-member commission and legislative recommendations after the court invalidated a 2005 act. Its two answers came from the difference between the commission seat's residence wording and the absence of such wording for legislators.

Citations and references

• The district definition excluded territory within Columbia's city limits.
• The opinion said Columbia-based delegation members were authorized to participate in recommending an appointee.

Official title

On residency requirements for commissioners of the Richland County Recreation Commission.

Requester

The Honorable John Scott, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-1-2017/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/02/Scott-J.-OS-10120-FINAL-Opinion-2-1-2017-01248443xD2C78-01255677xD2C78.pdf

Original opinion text

February 1,2017
The Honorable John L. Scott, Jr.
Member

South Carolina Senate, District No. 19
P.O. Box 142

Columbia, SC 29202
Dear Senator Scott:

Attorney General Alan Wilson has referred your letter to the Opinions section regarding residency requirements for commissioners of the Richland County Recreation Commission ("Commission") and whether there are residency restrictions on the Richland County Legislative Delegation members who may recommend individuals to the Governor for appointment to the Commission. Your letter provides the following: By way of background, the Richland County Creation Commission ("Commission") was established pursuant to Act 873 of 1960, which the General Assembly has amended on several occasions. Section 2 of Act 873 of 1960 provides, "the [recreation] district shall include and be comprised of the entire territory of Richland County not embraced within the city limits of Columbia." Section 4 of Act 873 of 1960 states, "the district shall be governed by a commission... which shall be composed of five resident electors of the district to be appointed by the Governor upon the recommendation of the Richland County Legislative Delegation, including the Senator." This language was amended in 1967(Act 306) and again by Act 581 of 1976 to read,"the district shall be governed by a commission... which shall be composed of seven resident electors of the district to be appointed by the Governor upon the recommendation ofa majority of the members ofthe Richland County Legislative Delegation."

Your letter requests this Office's opinion regarding the following questions: (1) May the Richland County Legislative Delegation recommend to the Governor for appointment a person who resides within the city limits of Columbia; and (2) May those members of the Richland County Legislative Delegation who reside within the city limits of Columbia participate in the decision making process to recommend an individual to the Governor for appointment to the Commission? Law/Analvsis

It is this Office's opinion that a person who resides within the city limits of Columbia is not eligible to be a member of the Richland County Recreation Commission, and that members of the Richland County Legislative Delegation who reside within the city limits of Columbia are authorized to

ro-MBERTC. Dennis Building • Post Office Box i 1549 • Columbia,50 29211-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

The Honorable John L. Scott, Jr.
Page 2
February 1 , 20 1 7

participate in the decision making process to recommend an individual to the Governor for appointment to the Commission. We turn to the rules of statutory construction to guide our analysis of the legislation relevant to

the Commission membership and recommendations for appointment thereto.

The primary rule of

statutory construction requires a determination of the General Assembly's intent. Mitchell v. Citv of

Greenville. 41 1 S.C. 632, 634, 770 S.E.2d 391, 392 (2015) ("The cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent whenever possible."). Where the statutes' language is plain and unambiguous, "the text of a statute is considered the best evidence of the legislative intent or will." Hodges v. Rainev. 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). "A statute as a whole must receive

a practical, reasonable and fair interpretation consonant with the purpose, design, and policy of

lawmakers." State v. Henkel. 413 S.C. 9, 14, 774 S.E.2d 458, 461 (2015), reh'g denied (Aug. 5, 2015). With these principles in mind, we turn to the General Assembly's enactments establishing the Commission.

As your letter states, the Commission was created by 1960 Act No. 873. The act established the Rural Recreation District of Richland County ("District"). 1960 Act No. 873, § 1.

The District was

defined to encompass "the entire territory of Richland County not embraced within the city limits of Columbia." Id. at § 2. The act further established the Rural Recreation Commission of Richland County, as the Commission was originally named, to govern the District. Id. at § 4.

The act mandated that the

commission "shall be composed of five resident electors of the district to be appointed by the Governor upon the recommendation of the Richland County Legislative Delegation, including the Senator. In making such recommendations the Richland County Legislative Delegation shall endeavor to give

representation on the commission to all sections of the district." Id. Therefore, this Office interprets the plain and unambiguous language of Section 2 and Section 4 to mean that the commission member

residency requirement excludes all persons living outside of the boundaries of Richland County, as well

as those persons living within the limits of the City of Columbia.1 The

General Assembly enacted

subsequent

legislation which

commissioners and the legislative recommendation requirements.

amended the amount of

In 1967, the General Assembly

amended the Commission's composition to include two additional members, bringing the total number of commissioners to seven. 1967 Act No. 306, § 1.

The 1967 amendment still required the seven

commissioners to be "resident electors of the district," but the description of the legislative recommendation was changed to read as "a majority of the members of the House of Representatives and a majority of the members of the Senate representing Richland County." Id.

In 1969, the General

Assembly amended the "names of the Rural Recreation District and the Rural Recreation Commission of Richland County... to the Recreation District and the Recreation Commission of Richland County." 1969

The South Carolina Supreme Court has interpreted S.C. Constitution, Article XVII, § 1 to imply a residency requirement within the area an officer will represent even when one is not specified by the General Assembly. McLure v. McElrov. 211 S.C. 106, 120, 44 S.E.2d 101, 108 (1947), overruled on other grounds by Weaver v. Recreation Dist.. 328 S.C. 83, 492 S.E.2d 79 (1997); See also Op. S.C. Attv. Gen.. 2007 WL 1651338 (May 21,

2007) (discussing application of McLure to local planning commissioners residency requirement).

The Honorable John L. Scott, Jr.
Page 3
February 1, 2017

Act No. 3 1 7, § 1 . While 1 969 Act No. 3 1 7 changed the names of the District and the Commission, it did

not alter the area that the District encompasses or the residency requirement for commissioners. In 1976, the General Assembly again amended the legislative recommendation requirement to read as "a majority

of the members of the Richland County Legislative Delegation." 1976 Act No. 581, § I.2 This act, just as the prior acts cited above, did not alter the area that the District encompasses nor did it alter the residency

requirement for commissioners.
Unlike the acts discussed above, in 2005, the General Assembly enacted legislation which withdrew the recommendation authority from the legislative delegation. In pertinent part, the act is titled "AN ACT TO DEVOLVE THE AUTHORITY TO APPOINT THE MEMBERS OF THE RICHLAND COUNTY

RECREATION

COMMISSION

FROM

THE

RICHLAND

COUNTY

LEGISLATIVE

DELEGATION TO THE GOVERNING BODY OF RICHLAND COUNTY..." 2005 Act No. 207. However, in Davis v. Richland County Council. 372 S.C. 497, 642 S.E.2d 740 (2007), the South Carolina Supreme Court ruled that the 2005 act was unconstitutional special legislation in violation of S.C.

Constitution, Article VIII.3 It is, therefore, this Office's opinion that the residency requirement for a member of the Commission and the legislative recommendation are controlled by 1976 Act No. 581. See

Berestrom v. Palmetto Health All.. 358 S.C. 388, 399, 596 S.E.2d 42, 47 (2004) (the general rule that

statutes which are ruled to be unconstitutional are considered void from the date of enactment "except in special or unusual circumstances, such as when doing so would create widespread havoc involving a great number of people or transactions, spawn unnecessary litigation, or result in flagrant injustice.").

While

1976 Act No. 581 contains a residency requirement for commissioners, there is no parallel residency requirement for the Legislative Delegation members who are tasked with recommending persons for appointment to the Governor.

Accordingly, it is this Office's opinion that a court is likely to find the

members of the Richland County Legislative Delegation who reside within the city limits of Columbia are authorized to participate in the decision making process to recommend an individual to the Governor for appointment to the Commission.

Conclusion
We hope that the guidance provided above will assist you and the Richland County Legislative

Delegation in the decision making process to recommend appointees to the Governor for commissioners on the Richland County Recreation Commission. This Office is, however, only issuing a legal opinion based on the current law at this time and the information as provided to us. Until a court or the General Assembly specifically addresses the issues presented in your letter, this is only an opinion on how this

Office believes a court would interpret the law in the matter. Additionally, you may petition the court for

2 While the act is not codified in the Code of Laws of South Carolina 1976, it is this Office's opinion that the statute remains effective despite its omission. Op. S.C. Attv. Gen.. 1979 WL 43077, at *2 (June 22, 1979) ("The general rule in South Carolina is that omission of a general statute upon adoption of the Code repeals the statute. However, in City of Florence v, Turbeville. 239 S.C. 126, 121 S.E.2d 437 (1961), the Supreme Court noted that the State Code of Laws can contain only the general statute laws of the State. Purely local laws are not part of the Code and their omission from the Code does not, therefore, repeal them.").

3This Office declines to comment at this time on the constitutionality of the legislative enactments which have not been otherwise addressed by our State Courts.

The Honorable John L. Scott, Jr.
Page 4

February 1,2017

a declaratory judgment, as only a court of law can interpret statutes and make such determinations. See S.C. Code § 1 5-53-20 (1976 Code, as amended).

If it is later determined otherwise, or if you have any

further questions or issues, please let us know.

Sincerely,

feuu/^2-—Matthew Houck

Assistant Attorney General
REVIEWED AND APPROVED BY:

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A
'

Robert D. Cook

fp.

Solicitor General