Could a South Carolina county council cut an elected official’s budget enough to eliminate staff?

Plain-English summary

In 2007, Barnwell County Council asked how far it could reduce the budgets of elected county officials when cuts might require staffing reductions. The Attorney General said the council had broad authority to appropriate county funds, but it could not reduce an elected official’s allocation so much that the office could no longer function properly. The council also lacked authority to discharge employees who worked under an elected official.

The AG warned that withdrawing funding for a particular position could amount to indirectly terminating an employee. Whether the proposed cuts would disable an office or amount to a termination depended on facts that only a court could resolve. The opinion identified no specific method for enforcing the new budget, though it noted the constitutional rule that money could be disbursed only under lawful appropriations.

Currency note

This opinion was issued in 2007. 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 council reduce an elected official’s budget at all? A: Yes. The AG recognized broad appropriation authority but said cuts could not prevent the office from functioning properly.

Q: Could council decide which employees in an elected official’s office were fired? A: No. The opinion said the council’s employment and discharge power did not extend to personnel directed by an elected official.

Q: Could council remove funding for a particular deputy or other position? A: The AG warned a court could treat a targeted reduction as an indirect termination that council had no power to make. He left the effect of a particular cut to a court.

Q: Did the AG give council a way to enforce its spending limit? A: No specific method was identified. The opinion noted that the state constitution allowed disbursements only under appropriations made by law.

Background and statutory framework

The council anticipated cuts that might affect staff in elected officials’ offices. Section 4-9-30(7) gave counties personnel authority but withheld it over employees under an elected official’s direction. Section 4-9-140 addressed annual budgets. The AG applied earlier opinions distinguishing a lawful appropriation reduction from a cut that defeats an office’s operation or indirectly abolishes a position. He left the effect of the contemplated cuts to a court as a factual issue.

Citations and references

Statutes: S.C. Code Ann. § 4-9-30(7) (Supp. 2005); S.C. Code Ann. §4-9-140(1986).

Constitutional provision: Article X, section 8 of the South Carolina Constitution (quoted in the original opinion).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-8-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/11/sloan-k-1-8-07-os-8205-budget-reductions-elected-officials-01515085xD2C78.pdf

Original opinion text

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Henry McMaster
Attorney General

Januarv- 8, 2007

The Honorable Keith Sloan
Vice Chairman, Barnwell County Council
County Agricultural Building , Office No. 105

Barnwell, South Carolina 29812
Dear Mr. Sloan:

We received your letter requesting an opinion on behalf of the Barnwell County Council

("County Council") concerning its "authority to make budget reductions affecting offices of elected officials and how such reductions should be enforced." According to your letter, County Council is contemplating significant budget reductions over the next serval years. You stated: "These cuts will most likely require reductions in staff. These reductions in staff will be from county operations

and offices of elected officials." Furthermore, you add:
As I understand, state law specifically prohibits county councils from terminating employees of elected officials.

Given this fact, if

reductions in budget allocations to offices ofelected officials can only be met by reductions in staff of the office(s), and the elected

official(s) is (are) unwilling to make such reductions, exactly what are the methodologies available to county councils to enforce budget restrictions? Would it be acceptable to advise the affected official(s) that they must reduce staff to stay within the approved budget for their office, and lacking specific instructions from the elected official as to the personnel to be terminated, council make appropriate across-

the-board reductions to salary of all personnel in their office, excluding the elected official, to meet budget allocations? If this is

not acceptable, and given the fact that state law requires councils to fund necessary utilities, supplies, equipment, etc. for offices of elected officials, exactly what other methods are available to county councils to enforce budget limitations on elected officials? Law/Analysis In your letter, you mentioned a state law provision prohibiting a county from terminating

employees of elected officials. This provision, which is part of the Home Rule legislation, is found

Rembert C.Dennis Building

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Post Office Box 11549

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Columbia, SC 2921 1-1549

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Telephone 803-734-3970

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Facsimile 803-253-6283

The Honorable Keith Sloan
Page 2
January 8, 2007

in section 4-9-30 of the South Carolina Code (1986 & Supp. 2005) and gives counties certain

powers.

Section 4-9-30(7) gives county governing bodies the responsibility for employing and

discharging county personnel. However, it also states: "This employment and discharge authority

does not extend to any personnel employed in departments or agencies under the direction of an elected official or an official appointed by an authority outside county government." S.C. Code Ann.
§ 4-9-30(7) (Supp. 2005). Thus, you are correct in your assessment that County Council may not

terminate employees of an elected official. However, in your letter, you state you are not seeking to terminate the employees of an elected official. Rather, you wish to reduce budget allocations to elected officials and thus, wish to advise such elected officials to decrease their staff in order to remain within the guidelines of the revised budget. As previously mentioned, the Legislature afforded numerous powers to county governments through section 4-9-30. Included in these powers is the power to "make appropriations for functions and operations of the county . . . ."

Furthennore, section 4-9-140 instructs county councils to

annually adopt operating and capital budgets for each year. S.C. Code Ann. §4-9-140(1986). Thus, under these provisions, the Legislature gives broad authority and discretion to county governments

to appropriate funds for county purposes. See Ops. S.C. Atty. Gen., May 8, 2006; August 3, 1987; August 14, 1985.

In an opinion of this Office issued in 1978, we discussed a county's ability to decrease

appropriations to specific county offices. Op. S.C. Atty. Gen., February 7, 1978. With reference to budgetary matters, while it is true that the Council exercises totally the budgetary authority of Aiken County and, consequently, can decrease, increase or otherwise alter appropriations for specific county offices and functions [§ 4-9-140, CODE OF LAWS OF SOUTH CAROLINA, 1976], nevertheless, it cannot so

decrease the appropriations of an elected official's office as to prevent the proper functioning thereof and, thus, indirectly, to abolish that

official's office. See generally, 20 C.J. S. Counties §§ 100(a), (b)and (c) (1940); 56 AM.JUR.2d Municipal Corporations §§ 237 through 239 (1971); 3 MCQUILLIN MUNICIPAL CORPORATIONS §

12.118 (3rd ed. 1 973); cf, Haves v. Brockton. (Mass.) 48 N.E.2d 683. Whether or not the Council has, in any particular- instance, exercised its budgetary authority so as to interfere with or prevent the proper functioning of an elected official's office is a factual matter which

cannot be determined by this office. Cf, Bubier v. State. (Fla.) 299 So.2d 830; McCov v. Mavor. 342 N.Y.S.2d 83; South Tiverton

Volunteer Fire Dept. v. Cook. (R.I.) 125 A.2d 190 (disbursements could be made from fund appropriated by town council to fire department expenditure).

without

council's

preliminary

approval

of

each

The Honorable Keith Sloan
Page 3

January 8. 2007

According to this opinion, a county government's ability to decrease appropriations to the office

of an elected official is limited in that the appropriations cannot be decreased to the extent that they prevent the office from functioning properly or abolish the office. We again addressed an issue similar to that in our 1 978 opinion in an opinion dated August 14, 1985. Op. S.C. Atty. Gen., August 14, 1985. In that opinion, we considered whether a county

council may "withdraw the appropriation for a particular deputy sheriffs position so as to result in the termination of the particular deputy . . . ." Ifr In response, we stated:

[I]t is the opinion of this Office that it is extremely doubtful as to whether such action could be taken.

While obviously a county

council is vested with discretion in dealing with any appropriations from the standpoint of general economic and efficiency concerns, such discretion could not be utilized in a manner which would

interfere with the decisions of a sheriff as to hiring and discharge of a deputy sheriff. Generally, courts have closely examined situations where attempts were made to withhold appropriations for sheriffs once they were appointed. Flaherty v. Milliken. 86N.E. 558 (1908). Id. In addition, we cited to our 1978 opinion and another opinion issued in 1985 finding a county council did not have the authority to refuse to provide compensation for a particular magisterial position. In considering the 1985 opinion, we noted the general principle that "a governing body cannot indirectly by a reduction of compensation of an office abolish it where it was not empowered to abolish the office directly." Id (citing 67 C.J.S. Officers § 229). Ultimately we concluded it is extremely doubtful whether action could be taken by a county

council to withdraw the appropriation of the position of a particular

deputy sheriff. Such could be construed as indirectly terminating a particular deputy sheriffs position which is a position the county council is not empowered to abolish directly.

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In 1 992, we were asked to address whether a county council may reduce the salary budget for the county and thereby reduce the staff of the county's treasurer's office. Op. S.C. Atty. Gen.,

October 29, 1 992. In response we, stated: "Whether such reduction will cause the Treasurer's Office to function improperly is a question for the electorate to decide and resolve." Id.

With regard to the question at hand, we certainly recognize the Legislature's intent to vest budgetary authority in the county's governing body. However, based on the opinions cited above,

such authority is limited with regard to the reduction in appropriations to the office of an elected official. Clearly, such reductions may not be to the extent that prevents the official's office from functioning properly.

Furthermore, because counties are prohibited by section 4-9-30(7) from

The Honorable Keith Sloan
Page 4

Januarys 8. 2007

terminating the employees of public officials, we are doubtful as to whether a court would allow counties to indirectly terminate an employee by abolishing their position through a reduction in appropriations for that position. In this instance, the determination of whether the reductions you mention in your letter will

result in the affected offices' inability to function properly is clearly a question of fact. Moreover, whether or not the reduction in funding to such offices is in fact a termination is also a question of fact. As we stated on numerous occasions, only a court, as the finder of fact, may ultimately resolve factual issues. See, e.g.. Op. S.C. Atty. Gen., September 29, 2006.

Thus, this Office is precluded

from making such determinations.
You also inquire as to other method's available to county council's to enforce budget

limitations on elected officials. While we are not aware of specific method's available, we note the requirement set forth in article X, section 8 of the South Carolina Constitution (Supp. 2005). This provision states: "Money shall be drawn from the treasury of the State or the treasury of any of its political subdivisions only in pursuance of appropriations made by law." Thus, if a public official were to expend funds that were not appropriated, such action would be in violation of the South

Carolina Constitution.
Conclusion

Based on our findings above, we caution that should County Council chose to reduce budget allocations for the salaries of employees of public officials, such reductions may not be to the extent that they cause the office of the public official to not function properly. Furthermore, we also warn a court could find certain reductions to be in violation of section 4-9-30(7), if the court concludes that the reduction is an indirect termination of the employee. Finally, while we cannot offer any

specific suggestions of ways in which county council may enforce budget reductions with regard to public officials, we note the requirement of article X, section 8 of the South Carolina Constitution mandating only appropriated funds may be disbursed. Very truly yours.

Cydney M. Milling
Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General