Did South Carolina’s 1995–96 budget override the annual per-diem limit for county social-services board members?

Plain-English summary

In a 1997 informal opinion, an assistant attorney general declined to reverse earlier AG views that a broad appropriations provision governed per-diem payments to county social-services board members. The question concerned a 1995–96 budget provision setting a daily rate for “all boards, commissions and committees” and an older DSS statute limiting total annual per diem. The author said there was strong support for reading the later comprehensive budget language as superseding the conflicting statutory language.

The letter did not treat the issue as wholly clear. It described the two provisions as “seemingly conflicting,” found the earlier opinions not clearly erroneous, and recommended that the agency work with the General Assembly to clarify the per-diem question. Its analysis was tied to the 1995–96 appropriations act, not an ongoing rate for future years.

Currency note

This opinion was issued in 1997. 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: Which 1995–96 per-diem provision did the letter favor for county DSS advisory boards?
A: It found strong support for the appropriations act's provision covering all boards over the older DSS statute's annual ceiling.

Q: Did the AG office withdraw its older opinions on DSS board payments?
A: No. The author said the prior opinions were not clearly erroneous and kept their approach.

Q: Why did the author favor the budget act?
A: The letter relied on the later, broad language applying to “all boards” and on the principle that subsequent comprehensive legislation could control over earlier laws on the same subject.

Q: Did the letter settle per-diem rates for all later fiscal years?
A: No. It addressed the 1995–96 appropriations language then before the office and urged legislative clarification of the apparent conflict.

Background and statutory framework

The DSS director asked the office to reconsider opinions from 1973 and 1990. Those opinions favored annual appropriations language over an older DSS-specific payment provision. The 1997 request compared § 72.36 of the 1995–96 appropriations act with § 43-3-20. The author treated the budget act as later comprehensive legislation, noted the DSS statute had not been amended following the earlier opinions, and retained those opinions while recognizing the need for clarification.

This was an informal opinion signed by an assistant attorney general, not a formal opinion personally reviewed by the Attorney General.

Citations and references

• Provisions discussed: § 72.36 of the 1995–96 appropriations act; § 43-3-20 (county board per diem).

Official title

Reconsidering the legal conclusions reached in two previously issued opinions.

Requester

James T. Clark, State Director, South Carolina Department of Social Services

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-16-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97jan16clarke.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

January 16, 1997

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James T. Clark, State Director
South Carolina Department
of Social Services
Post Office Box 1520
Columbia, South Carolina 29202
Re:

Informal Opinion

Dear Mr. Clark:
You have requested that this Office reconsider the legal conclusions reached in two previously issued opinions.

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In an opinion dated November 29, 1973, this Office concluded that mileage and per diem allowances for members of county DSS boards should be controlled by the provisions of the 1973-74 Appropriations Act rather than the provisions of S.C. Code Ann.§ 71-32 (1962). The reason behind this conclusion was that the provisions of the 1973-74 Appropriations Act were controlling since the Act represented the last expression of legislative wiII. In 1989, then commissioner of the DSS James L. Solomon, Jr., asked this Office to reconsider the November 29, 1973 opinion. In an opinion dated January 10, 1990, this Office found that the 1973 opinion was not clearly erroneous. Instrumental in this decision was the conclusion that the broad language of the Appropriations Act which included" all boards, commissions and committees" could arguably supersede other statutes which make different provisions for compensation of various board members. In light of these opinions, you ask whether § 72.36 of the 1995-96 Appropriations Act governs the payment of the per diem to DSS county advisory board members or whether S.C. Code Ann. § 43-3-20 (Supp. 1995) governs the payment of the per diem.

There are two seemingly conflicting legislative statements governing the payment of a per diem to the DSS county advisory board members. First, S.C. Code Ann. § 43-3A.R~E~.

f'nsr OFHCE Box 11549

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COLUMBIA.

s.c. 29211-1549

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TELEPHONE: 803-714-1()70

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Mr. Clark
Page 2
January 16, 1997

20 (Supp. 1995) provides that "[m]embers of the county boards shall receive the same mileage as is provided by law for state boards, committees and commissions for travel in attending meetings and a per diem, the total per diem not to exceed seventy-five dollars per year." Second, § 72.36 of the 1995-96 Appropriations Act provides in pertinent part that "[t]he per diem allowance of all boards, commissions and committees shall be at the rate of Thirty-five ($35) Dollars per day."

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This Office has consistently found that subsequent comprehensive legislation controls over former laws on the subject. See, Ops.Atty.Gen. dated September 26, 1986 and August 7, 1985. In the facts presented by your opinion request, it appears that the Appropriations Act provision which includes the language "all boards" is comprehensive legislation on this subject. Therefore, there is strong support for a conclusion that the language of the Appropriations Act was intended to supersede that language of§ 43-3-20. Furthermore, since the issuance of the 1973 and 1990 opinions, the General Assembly has not amended the per diem provisions of§ 43-3-20. It is well recognized that the absence of any amendments following the issuance of an opinion of the Attorney General strongly suggests that the views expressed therein were consistent with legislative intent. Scheff v. Township of Maple Shade, 149 N.J. Super. 448, 374 A.2d 43 (1977); Op.Atty.Gen. No 84-69. This Office is keenly aware of the budgetary considerations that each State Agency must face on a daily basis. However, when a question is presented for legal analysis, we must determine the question asked based on our interpretation of the law. As the law presently stands, the previous opinions of this Office are not clearly erroneous. I would recommend that it may be prudent to work with the General Assembly in order to clarify the per diem question. 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 questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain Very truly yours,

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Paul M. Koch
Assistant Attorney General