Could Greenville County Council return control of the county jail to the sheriff by ordinance?

Plain-English summary

Greenville County’s sheriff asked whether county council could, by ordinance, return management and control of the county jail to him. The Assistant Deputy AG pointed to an enclosed 1997 informal opinion and explained that a 1980 AG opinion opposing transfer remained the office’s position. A later ruling in Graham v. Creel created considerable doubt about the ultimate answer because it recognized broad county Home Rule authority in a different county police-commission context.

The author said it could at least be argued that council had power to return the jail to the sheriff. He did not decide that council definitely had such authority. Instead, he said a declaratory judgment was the only way to resolve the issue with finality. The letter was an informal opinion and did not report a court ruling on the Greenville jail transfer.

Currency note

This opinion was issued in 1998. 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: Did the 1998 letter approve the proposed jail transfer? A: No. It said council authority was arguable but the issue remained unsettled.

Q: Why was the earlier AG opinion in doubt?
A: The letter said the later Graham v. Creel decision cast considerable doubt on the 1980 analysis.

Q: What did the author say would resolve the question finally? A: He identified a declaratory judgment as the way to settle it with finality.

Background and statutory framework

The sheriff described a history of jail control under local legislation and county action. The opinion compared the 1980 AG view with the later Home Rule discussion in Graham v. Creel, while stressing that the cited court decision arose in the Horry County police-commission setting.

Citations and references

Case discussed: Graham v. Creel. Statutory reference quoted from that case: Sec. 4-9-30(6).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-21-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98jan21brown.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

January 21, 1998

The Honorable Johnny Mack Brown
Sheriff, Greenville County
4 McGee Street
Greenville, South Carolina 29601
Re: Informal Opinion
Dear Sheriff Brown:
You have sought an Informal Opinion as to whether "Greenville County Council
[can] ... by ordinance, return the operation, management, and control of the Greenville County jail back to me [as Sheriff]?" You provide the following information by way of background:
[i]n 1915, the Sheriff of Greenville County relinquished control and custody of the Greenville County jail. The General Assembly legislated Act 179 in 1935, abolishing the Charities and Corrections Commission, which operated the county jail at that time. When the Legislature abolished the Charities and Corrections Commission, it gave full and complete management of the county jail to the Board of Commissioners of Greenville County. In 1980 (copy enclosed), I sent a letter to the Chairman of County Council, Melvin Pace, requesting that County Council accept powers and duties of the jail. By resolution, County Council accepted full and complete control of the county jail. There is a possibility that the county jail could be transferred back to the supervision of this Office. I ran across an opinion RE'>1BERT

c. DENi'IS Bt:IUllNG

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POST OFFICE Box 11549

1iJ{4uLdE(~/

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COLIJ~101A, S.C. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Johnny Mack Brown
Page 2
January 21, 1998
by the Attorney General's Office, dated May 13, 1980, advising the Richland County Sheriff that the County Council of Richland could not transfer the operation of the jail back to the Sheriff of Richland County because of wording in the Home Rule Act, which reorganized or restructured the Office of Sheriff.

Law I Analysis
I am enclosing a copy of an Informal Opinion rendered by this Office on February 4, 1997 which thoroughly addresses the issue you have raised. As you can see, even though the May 13, 1980 opinion remains the opinion of this Office, there is now considerable doubt as the ultimate resolution of this issue. The principal reason for the uncertainty is due to the Supreme Court's decision of Graham v. Creel, 289 S.C. 165, 345 S.E.2d 717 (1986) which, of course, was decided well after the 1980 opinion was rendered. Creel involved the authority of the county council in Horry County vis a vis the County Police Commission. Commenting thereupon, our Supreme Court stated that
[t]he General Assembly never repealed Secs. 53-551
through 53-566 S.C. Code Ann. (1962) [including the
authority for the commission to employ a jailer]. It was not until January 1, 1980, therefore, that the Horry County Council was no longer prohibited from enacting ordinances in conflict with those sections. The Horry County Council then had three options under the Home Rule Act with respect to the operation of the Horry County Police Commission: (1) let it continue as it was being operated when Home Rule became effective in Horry County in 1976; (2) abolish the Horry County Police Department and devolve its powers and functions upon the Horry County Sheriff, subject to approval by a county-wide referendum pursuant to Sec. 4-9-30(6) S.C. Code Ann. ( 1976) [referendum requirement now repealed]; or (3) otherwise provide by ordinance pursuant to its Home Rule powers. The Horry County Council chose to let the Commission continue from January 1, 1980 until April 16, 1981, when Ordinance 5-81 was passed pursuant to the Home Rule Act. We find that appellants have correctly interpreted Subsection 3 of Act 283 [Home Rule Act]. 289 S.C. at 168.

The Honorable Johnny Mack Brown
Page 3
January 21, 1998
Thus, as stated in the 1997 Informal Opinion, the Creel case casts considerable doubt upon the 1980 opinion. Certainly, it can now be argued at least that county council does possess authority to return the jail to the Sheriff in light of its broad authority under Home Rule. The only way this issue can be resolved with finality is by way of declaratory judgment.

f,

This letter is an informal opinion only. It has been written by a designated Assistant Deputy 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.

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With kind regards, I am
Very truly yours,

Robert D. Cook
Assistant Deputy Attorney General

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Enclosure