Could Aiken County reorder sales tax projects after voters approved the ballot’s priority list?

Plain-English summary

Aiken County put road and municipal projects on a capital project sales tax ballot in a stated order, then sought to reorder them after voters approved the tax. The 2001 informal opinion said the county was obligated to spend the proceeds consistently with the priority presented to voters. The ballot said proceeds “must be expended” in the listed priority. Its allowance for acquisition, engineering, cost, revenue, and other unforeseen difficulties did not, in the AG's view, authorize a new ranking based on criteria the county could have considered before the vote.

The AG distinguished an earlier municipal bond opinion because the capital project sales tax statute required the county to state the priority for multiple purposes. The letter said a county could specify a funding formula or simultaneous system in advance, but Aiken's ballot had specified a priority.

Currency note

This opinion was issued in 2001. 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 the county change priorities simply because the original list was ordered mechanically?
A: The AG said a later reprioritization based on criteria available before the referendum would violate at least the spirit of what voters approved.

Q: Did the ballot allow any change in spending order?
A: It listed project acquisition, design, bids, costs, revenue shortfalls, and other unforeseen conditions. The AG read those terms as addressing unexpected implementation problems.

Q: Could a county fund projects simultaneously under the statute?
A: Yes, the opinion quoted the statute allowing the enacting ordinance to state a formula or system for simultaneous funding. Aiken's own ballot instead promised a listed priority.

Background and statutory framework

The capital project sales tax statute required a county enacting ordinance to set spending priorities when the tax served more than one purpose. The AG compared that legal requirement with the language Aiken County placed before its voters.

Citations and references

• § 4-10-330(B)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-2-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01feb-2-sharpe.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

February 2, 2001
The Honorable Charles R. Sharpe
Member, House of Representatives
Box 652
Wagener, South Carolina 29164

RE: Informal Opinion
Dear Representative Sharpe:

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By your letter of January 23, 2001 , you have requested an opinion of this Office concerning the Capital Project Sales Tax Act. By way of background, you have provided us with the following information: The committee reviewing projects to be funded under the Capital Project Sales Tax Act believed that the actual priority of the projects could be determined after the referendum. So that the committee and the County Council would not have to weigh the comparative necessity of the projects before the referendum, they placed the roads to be improved on the ballot in road number order and allocations to the cities in decreasing monetary value. Now that the referendum has passed, the County has reprioritized the roads to be improved and the allocations to the cities. You ask if the County is obligated to distribute the monies in the priority delineated in the referendum. The Capital Project Sales Tax Act, codified at S.C. Code Ann. § 4-10-300 et seq .• authorizes county governing bodies to impose a one percent sales and use tax to fund county projects, such as road and facility improvements, if the ta"'< is approved by a referendum of the people. A commission created to study the project proposals formulates the ballot question to be presented to the people. The ballot question is then submitted by the commission to the County Council, which enacts an ordinance containing the ballot question. Section 4-10-3 30 sets forth the required contents of ordinance, including: (B) When the tax authorized by this article is imposed for more than one purpose, the enacting ordinance must set forth the priority in which the net proceeds are to be

Representative Sharpe
February 2, 2001
Page 2of3
expended for the purposes stated. The enacting ordinance may set forth a formula or system by which multiple projects are funded simultaneously.

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(Emphasis added).
In accordance with Section 4-10-330, the Aiken County Council enacted Ordinance No. 00-08-23, authorizing the referendum and including the ballot question to be presented to the voters. At the end of the list of proposed road improvements and municipal projects, the ballot question (both in the ordinance and presented to the voters) reads, in part:
... Net proceeds of the capital project sales and use tax, if approved, must be expended for the purposes stated, in the priority listed above. The expenditure of revenues from the capital projects sales and use tax, if approved, shall be subject to acquisition ofproperty, right-of-way, design and engineering considerations, funding of projects from other sources, bids in excess of project estimates, qualifications of bidders, cost overruns, financing costs, exhaustion of insufficiency of net sales and use tax revenues to complete the projects in the order and priority stated above and other unfors~en circumstance and conditions. (Emphasis added). The ballot question approved by County Council and presented to the voters clearly states that the proceeds of the tax will be distributed to projects in the priority listed in the question. Later in the same paragraph the question does state that the priority is subject to change, but that disclaimer appears to justify only changes based on typical unexpected complications of acquisition and construction or "other unforseen circumstances." In our opinion, a re-prioritization of the projects based on different criteria, which could have been accomplished before submitting the question to the voters, would violate the spirit of the ballot question, if not the exact letter. In an opinion of this Office dated June 28, 1994, we advised that a city could use its discretion in the precise allocation of funds from municipal bonds. In that case, at the time of the referendum the city planned to apply the proceeds to construct two fire stations. After the referendum passed, the city wanted to use the funds for a purpose other than that which was specified in the referendum. See id. Those circumstances, however, are distinguishable. The Municipal Bond Act, S.C. Code Ann. § 5-21-210 et seq., does not contain a provision requiring the governing body to delineate the priority for projects to be funded, as does the Capital Project Sales Tax Act in § 4-10-330(B). By requiring the county to specify the priority of the projects, the General Assembly has somewhat limited the discretion of the local governing body. The county may choose how to distribute the

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Representative Sharpe
February 2, 2001
Page 3 of3
proceeds exactly or may only specify a formula for determining how the various projects will be funded, but in our opinion the county is obligated to expend the proceeds in a manner consistent with that presented to the voters in the referendum. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I remain Very truly yours,

Susannah Cole
Assistant Attorney General

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