Could Allendale County refuse to create a consolidation charter commission after a certified voter petition?

Plain-English summary

Allendale County's attorney described a certified petition requesting a consolidated-government charter commission. County officials and the county's municipalities opposed consolidation, and the county council had not created the commission. The Attorney General read the petition provision as mandatory: after certification of a qualifying petition, the county governing body had to create a charter commission within thirty days.

The opinion separated that duty from whether local governments favored consolidation. It pointed to an enclosed 1992 opinion for what happened when municipalities failed to appoint commission members. If the county itself failed to create the commission, the AG identified a declaratory judgment as a way for the county or a municipality to ask a court how to proceed, and said a citizen could seek a court order compelling county compliance. The AG characterized its reading as a prediction of how a court would decide.

Currency note

This opinion was issued in 2016. 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 opposition to consolidation let the county ignore the certified petition?
A: The AG said no. It read the statute's direction to create a charter commission after certification as mandatory.

Q: What deadline did the opinion identify?
A: It quoted the statute as requiring the county governing body to create a commission within thirty days after certification of the qualifying petition.

Q: What if a municipality refused to appoint its commission members?
A: The statute quoted in the opinion said the county governing body would appoint the additional members allotted to a municipality or special purpose district that failed or refused to appoint within the thirty-day period.

Q: What recourse did the opinion mention if the county did not create a commission?
A: It said a county or municipality could seek a declaratory judgment, and a citizen could ask a court to compel compliance. The AG left interpretation and enforcement to a court.

Background and statutory framework

The opinion applied § 4-8-20(B) to Allendale County's reported facts. It read “shall create a charter commission within thirty days after certification” as a mandatory instruction. The official PDF also enclosed a separate 1992 AG opinion about municipal appointments to a commission; the 2016 answer addressed the county's own duty after the petition.

Citations and references

• The AG concluded a county was “obligated to create a charter commission within thirty days of receiving a certified petition.”
• The opinion said a court had jurisdiction “to both interpret the law and to compel compliance.”

Official title

Regarding Section 4-8-20 of the 1976 South Carolina Code of Laws.

Requester

Walter H. Sanders, Jr., Esquire, Attorney for Allendale County.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-26-2016-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/02/Sanders-W.-OS-9974-FINAL-Opinion-1-26-2016-00852099xD2C78.pdf

Original opinion text

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Alan Wilson
Attorney General

January 26. 2016

Walter 1 1. Sanders. Jr., Esquire
Attorney for Allendale County
Post Office Box 840
Fairfax. SC 29827

Dear Mr. Sanders:

Attorney General Alan Wilson has referred your letter dated September 22. 2015 to the Opinions section for a response. The following is this Office's understanding of your question and our opinion based on that understanding.

Issue (as quoted from your letter): Section -1-8-20 of the 1976 South Carolina Code of Laws as amended authorizes the governing body of any county to create a consolidated government charter commission. The commission must he created in accordance with the procedures specified in the code and only upon

the request of the governing body of the county or upon petition of not less than ten (10) percent of the registered electors within the county. A certified petition has been filed with Allendale County Council. Allendale County Council and all the municipalities in Allendale County are against consolidation. Allendale County Council has not created a charier commission. Title -If] (Counties) Chapter 8 (Consolidation of Political Subdivisions) of the 1976 South Carolina Code of Laws as amended does not give guidance as to how proceed if the county and municipalities do not create a charter commission after receipt ofa certified petition. Law/A nalysis:

By way of background, it is this Office's understanding that at the time of this opinion the Allendale County Council has not created a consolidated government charter commission despite a certified petition being liled with the county according to South Carolina Code § 4-8-20. In part. S.C. Code Ann. § 4-8-20 reads as follows: (B) If the governing body of any county creates a commission, it must be created

in accordance with the procedures specified in subsection (A) and only upon the request of the governing body of the county or upon petition of not less than ten percent of the registered electors within the county. The petition must contain the

signatures of not less than ten percent of persons registered to vote in the county. Petitions must be certified as valid or rejected by the county board of registration within thirty days and if certified, must be filed with the governing body which shall create a charter commission within thirty days after certification. If within the thirty-day period one or more of the municipalities or special purpose districts fails or refuses to appoint their proportionate number of members to the commission, the county governing body shall appoint an additional number of members equal to the number that any such municipality or special purpose district is entitled to appoint.

RembertC. Dennis Building

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Post Office Box 1 1549

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. Telephone 803-734-3970

. Facsimile 803-253-6283

Walter H. Sanders. Jr.. Esquire
Page 2
January 26. 2016

This Office has issued an opinion regarding South Carolina Code § 4-8-20. In that opinion, we discussed how to interpret Section 4-8-20 when a municipality did not make the appointments as prescribed by the

statute. See On. S.C. Atfv Gen.. 1992 WL 682859 (S.C.A.C. November 23. 1992).

We also discussed

whether "shall appoint" in § 4-8-20(A)(2)(c) was permissive or mandatory and concluded there it was likely mandatory ("[e]ach municipality in the county shall appoint a number of members to the

commission equal to the whole number indicated by their appointive index."). Moreover, we have also stated in a previous opinion that "[ujnder the rules of statutory interpretation, use of words such as 'shall' or 'must' indicates the legislature's intent to enact a mandatory requirement." Op. S.C. Att'v Gen.. 2012 WL, 2867807 (S.C.A.G. June 29. 2012) (quoting Collins v. Doe. 352 S.C. 462. 470. 574 S.E.2d 739, 743 (2002)).

Thus, we believe a court will reach the conclusion that pursuant to § 4-8-20(B). the governing

body of the county "shall create a charter commission within thirty days after certification" is mandatory not permissive. We understand from your letter you are asking how to proceed if neither the county nor the municipalities create a charter commission after receipt of a certified petition.

First and foremost, the requirements of

the statute must be complied with, and assuming they are. the county is charged with creating a charter

commission within thirty days of receipt of a certified petition.

As noted above, our previous 1992

opinion discusses how to proceed where one or more of the municipalities is not in compliance with statute. See Op. S.C. Atfv Gen.. 1992 WL 682859 (S.C.A.G. November 23. 1992). We have included a

copy of the 1992 opinion with this opinion for your review. As to how to proceed where the county is not in compliance with what we believe a court will determine to be a mandatory provision to create a charter commission within the thirty dates of receiving a certified petition, there are a few possibilities.

The

county or one of its municipalities could bring a declaratory judgment asking a court how to proceed. See S.C. Code § 15-53-20. Conversely, a citizen may bring a suit against the county asking a court to compel the county to comply with the statute. Op. S.C. Att'v Gen.. 2014 WL 6705714 (S.C.A.G. Nov. 18. 2014)

(citing S.C. Code § 4-1-10 a county may sue and be sued).
Conclusion:

This Office advocates compliance with the law, and we believe a court will determine that pursuant to

S.C. Code i? 4-8-20(B) a county is obligated to create a charter commission within thirty days of receiving a certified petition.

Nevertheless, if the law appears unclear or if there is disagreement as to how to

proceed, a court of law would have jurisdiction to both interpret the law and to compel compliance with the law. However, this Office is only issuing a legal opinion based on the current law at this lime and the information as provided to us. Until a court or the Legislature 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, as we mentioned above, you may also petition the court for a declaratory judgment, as only a court of law can interpret statutes and make such determinations. See S.C. Code § 15-53-20. If it is later determined otherwise, or if you have any additional questions or issues, please let us know.

Sincerely,

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Anita S. Fair
Assistant Attorney General

Walter H. Sanders, Jr., Esquire

Page 3
January 26. 2016

REVIEWED AND APPROVED BY:
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Robert D. Cook
Solicitor General

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TELEPHONE: 803-734-3970
FACSIMILE: 803-253-6283

November 23, 1992

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The Honorable Warren K. Giese
Senator, District No. 22
4627 Perry Court
Columbia, South Carolina 29206
Dear Senator Giese:

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Referencing Act No. 319 of 1992, pertaining to the consolidation of political subdivisions, you have asked several questions about the mechanics of that act, as to appointment of members of the charter commission and as to exclusion of municipalities from the proposed charter of the consolidated political subdivision. Each of your questions will be addressed separately, as follows. Question 1

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When a charter commission is initiated and created
pursuant to a resolution of the county governing
body, who has the authority to appoint the municipal
ities' members if one or more of the municipalities
either fails to respond or responds that they have
chosen not to make appointments?

You have referenced two new statutes which seem, at first reading, to conflict; in our view, it is possible to reconcile the statutes. By Act No. 3 19 of 1992, the General Assembly has provided a mechanism

whereby counties, municipalities, special purpose districts, and such other political subdivisions may consolidate the governmental and corporate functions vested in those subdivisions. At the receipt of a petition calling for creation of a charter commission or at the initiative of county council, a charter commission is authorized to be created to study the matters and draft a proposed consolidated

The Honorable Warren K. Giese
Page 2

November 23, 1992

governmental charter. The commission is to be comprised of eighteen members, as outlined in S.C. Code Ann. § 4-8-20.

Six members of the commission are to be residents of incorporated municipalities within the county. § 4-8-20(A)(2)(a). An appointive index formula is found in § 4-8-20(A)(2)(b)and (c). Subsection (d) further provides:

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When less than six members are selected to
the commission in accordance with the prescribed
appointive index method, the remaining member or
members must be selected in a joint meeting of the
charter commission appointees of the municipalities
in the county. The member or members must be
chosen from among the residents of the municipalities
in the county which before this time have not provid

ed a representative for the commission.

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Then, § 4-8-20(B) provides in part as to the creation of the charter commission within the specified thirty days: If within the thirty-day period one or more of the

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municipalities ... fails or refuses to appoint their
proportionate number of members to the commission,
the county governing body shall appoint an additional
number of members equal to the number that any
such municipality ... is entitled to appoint.

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The two statutes seem to address different circumstances. Section 4-820(B) would be utilized in the instance in which a municipality, notified of the opportunity to make one or more appointments, fails or refuses to make the appointments. In that event, the county governing body would make the appointments which that municipality would have made. On the other hand, § 4-8-20(A)(2)(d) seems to apply to those instances in which fewer than six members have been selected to the commission in accordance with the prescribed appointive index method. If one municipality has been allowed four members and the remaining two have not been selected according to the index, then those two might be selected by-§ 4-8-20(A)(2)(d). An example of how § 4-820(A)(2)(d) might be followed, drawn up by the South Carolina Association of Counties, is enclosed. To determine which statute applies, it would be necessary

The Honorable Warren K. Giese
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November 23, 1992

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to determine whether the index has been followed or whether a given municipali ty has failed or refused to appoint its proportionate number. In any event, if an

irreconcilable conflict between the two statutes should occur, § 4-8-20(B) would be deemed the prevailing statute. Because it appears later in the act, it would be

the later expression of the legislative will and thus would prevail. S.C. Tax Commission. 203 S.C. 49, 26 S.E.2d 22 (1943).

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In response to your specific inquiry, § 4-8-20(B) would be the applicable statute in the event that a municipality fails to respond or responds that it has i w

chosen not to make its appointments. The county governing body would make those appointments, in that instance, by the plain language of § 4-8-20(B).' A

municipality's failure to appoint for whatever reason would not prevent the charter commission's work from proceeding according to the timetable in Act No.

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319.

Question 2

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If a municipality does not respond and does not make
an appointment, may that municipality be included in
the proposed charter for the consolidated political
subdivision?

LA review of Act No. 319 of 1992 shows that there is no penalty if a

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municipality should fail to appoint, or refrain from appointing, its allotted members on the charter commission, other than the municipality's loss of the opportunity to appoint and have its input into that part of the process. Failure to appoint, for whatever reason, would not, by itself, cause the municipality to be excluded from the proposed charter of the consolidated political subdivision. Throughout the act are found references to "participating" municipalities; how a municipality located in more than one county may respond to a proposed

consolidation; how a municipality may exclude itself by vote of its electorate or become a part of the consolidated political subdivision later; and the like. It is

'While your inquiry related to municipalities, we observe that the same issue could arise concerning commission members appointed to represent interests of

the county's special purpose districts. See §§ 4-8-20(A)(3)(c) and 4-8-20(B).

The Honorable Warren K. Giese
Page 4

November 23, 1992

observed that the charter commission has a great deal of latitude in specifying the i

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municipalities and/or special purpose districts to be included in the consolidation effort.

A municipality's failure to respond or refusal to make its appointments

might be among the factors which the charter commission might use to gauge that municipality's sentiments toward consolidation; however, the act does not specify that such municipality failing or refusing to make its allotted appoint ments will be excluded from the consolidation. Question 3

Is the language of section 4-8-20(A)(2)(c) which
provides that "each municipality in the county shall
appoint" permissive or mandatory? In other words,
once the county governing body creates a charter
commission, do the officials of the municipality have
the option of refusing to make an appointment in
accordance with their appointive index?

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As to whether the word "shall" should be viewed as mandatory or directory, the court in State v. Blair. 275 S.C. 529, 533, 273 S.E.2d 536 (1981), stated:

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The word "shall" may be construed as permis
sive to effect legislative intent ... . However, a
statutory provision is generally regarded as mandatory
where the power or duty to which it relates is for the
security or protection of private rights. ...
Because private (or individual, as opposed to public) rights are not involved in this instance, a court construing the term "shall" in § 4-8-20(A)(2)(c) would most probably view the term as directory. As has already been observed, no penalty attaches to a municipality which does not make its allotted appointments. Indeed, the General Assembly contemplated in § 4-8-20(B) that a municipality might fail or refuse to appoint its allotted members. In keeping with § 4-8-20(B), it would appear that a municipality might opt not to appoint its allotted members, the result being that county council would then appoint those members so that the charter commission's work will continue according to the statutory timetable.

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The Honorable Warren K. Giese

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Page 5

November 23, 1992

We trust that the foregoing has adequately responded to your inquiry. Please advise if clarification or additional assistance should be needed. With kind regards, I am Sincerely,

Patricia D. Petway
Assistant Attorney General
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REVIEWED AND APPROVED BY:

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Robert D. Cook

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