Could the Abbeville legislative delegation choose members of the Donalds-Due West Water Authority board in 2004?

Plain-English summary

In January 2004, South Carolina’s Attorney General considered whether the Abbeville County legislative delegation could recommend or appoint members of the Donalds-Due West Water Authority board. The office said good arguments existed that the authority served more than one county, but only a court could settle that classification with finality.

The opinion did not find an existing appointment power in the delegation. It said the General Assembly could amend the authority’s enabling legislation to grant the delegation a recommendation or appointment role if the authority was multi-county. Under the act then in force, successors were appointed by the Governor following the recommendations specified in that act.

Currency note

This opinion was issued in 2004. 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.

Historical summary

Water authority board members

The AG treated the authority’s single-county or multi-county status as unresolved. It pointed to the inclusion of part of Greenwood County in the authority’s enabling legislation as support for the multi-county view, while reserving the final determination for a court.

Legislators and county officials

The office said an amendment to the enabling law could assign recommendations to the relevant legislative delegation or other local bodies. It described such legislation as presumed valid unless a court ruled otherwise.

Common questions

Did the delegation already have power to appoint board members?
The opinion did not find that power in the existing act. It described Governor appointments under the act and proposed legislation as the route to a different arrangement.

Was the water authority definitely a multi-county entity?
No. The AG said good arguments supported that classification, but only a court could decide it conclusively.

Could legislators change who recommends board members?
The office said the General Assembly could amend the enabling act to choose recommendation or appointment arrangements for a multi-county authority, subject to judicial review.

Background and statutory framework

A representative followed up on a 2003 AG opinion that had left the authority’s classification uncertain. The 2004 letter addressed the possible effect of a legislative amendment on board appointments and the presumption that enacted legislation is constitutional.

Citations and references

The opinion discussed Act No. 776 of 1976 and the earlier July 31, 2003 AG opinion about the Donalds-Due West Water Authority.

Official title

Questioning whether the Abbeville County Legislative Delegation has the authority under a multi-county water district to recommend or appoint members of the Authority Board.

Requester

The Honorable Harry C. Stille, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-20-2004-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04jan20stille.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATl'ORNEY GENERAL

January 20, 2004

The Honorable Harry C. Stille
Member, House of Representatives
436-B Blatt Building
Columbia, South Carolina 29211

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Dear Representative Stille:
In a letter to this office you referenced a prior opinion of this office dated July 31 , 2003 which dealt with numerous questions regarding the Donalds-Due West Water Authority. That opinion was unable to conclude with certainty whether the Authority was a single county or multicounty entity. You have asserted that inasmuch as the legislation establishing the Authority included portions of Greenwood County, the Authority is a multi-county Authority. You have questioned whether the Abbeville County Legislative Delegation has the authority under a multi-county water district to recommend or appoint members of the Authority Board. Presently, pursuant to Act No. 776 of 1976 successors to a member of the Authority Board shall be appointed by the Governor based on recommendations as set forth in the Act. As indicated in the prior opinion noted above, good arguments may be made that the Authority is a multi-county entity. While only a court could resolve the issue with finality, the General Assembly could arguably enable the legislative delegation to recommend or appoint members of the Board. As noted in the prior July 31, 2003 opinion, if the defined service area of the Authority includes multiple counties and the changes are made through legislative action or amendment to the Authority's enabling legislation, then the General Assembly would have plenary power to detennine who should make the recommendations for appointment to the Governor. The General Assembly could determine that the relevant legislative delegations, county councils, city/town councils or any combination thereof is/are the appropriate group(s) to make the recommendation. The General Assembly could express this determination through a specific provision in any law passed in this matter. Such legislation would be presumed valid and would remain in force until a court would rule otherwise. As noted by the State Supreme Court in State ex rel. Thompson v. Seigler, 230 S.C. 115, 94 S.E.2d 23 1, 233 (1956), the powers of the General Assembly are plenary and it may enact such legislation as is not expressly or by clear implication prohibited by the State Constitution. As a

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R1¥Bm~. QENms BUllDJNO • POST OFFICE Box 11549 •

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COUJMBIA,

s.c. 29211-1549 • TEJ..EPHONE: 803-734-3970 • f ACSIMD..f: 803-253-6283

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The Honorable Harry C. Stille
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January 20, 2004

result, any act of the General Assembly would be presumed valid and constitutional and would not be considered void unless its unconstitutionality is clear beyond any reasonable doubt. Thomas v. Madden, 186 S.C. 290, 195 S.E. 539 (1937); Townsend v. Richland Co., 190 S.C. 270, 2 S.E.2d 779 (1939).

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Therefore, good arguments exist that the Authority is a multi-county entity. Legislation could be sought which would enable the legislative delegation to make recommendations or appointments to the Authority. Such authority would remain in force and be effective until a court would rule otherwise. Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General

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