Could Beaufort County change or abandon a proposed capital projects sales tax after its commission drafted a ballot question?

Official title

Concerning the legality of the actions that may be taken by the Capital Project Sales Tax Commission subsequent to the actions that may be taken by the Capital Project Sales Tax Ordinance as presented. Specifically, would it be legally permissible for the Commission to reconvene of its own volition and accord to discuss the actions taken by Beaufort County Council.

Requester

Joshua A. Gruber, Esquire, Staff Attorney, Beaufort County

Plain-English summary

Beaufort County's capital projects sales tax commission proposed a ballot question for a tax and project list, but the county council denied the proposed ordinance's first reading. County counsel asked what could happen next. The Attorney General predicted that council could abandon the tax. If it chose to proceed, the ballot question had to be formulated by the commission.

The opinion also said council could remove members it had appointed to the commission and could abolish the commission. It did not decide the factual question of how council and the commission would proceed after the rejected reading.

Currency note

This opinion was issued in 2014. 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: Was the county council required to put the proposed tax to a vote? A: The AG said no. Council could choose not to continue the tax process.

Q: Could council write its own referendum question if it proceeded? A: The opinion said it had to use a question formulated by the capital projects sales tax commission.

Q: Could council change the commission's membership?
A: The AG said council had authority to remove commission members whom it had appointed, and could abolish the commission.

Background and statutory framework

The commission forwarded a proposed sales tax ordinance and ballot question to council. After council declined first reading, the opinion examined the statute governing commission formulation of the question and council's choice whether to impose the tax. It also drew on appointment and county-commission powers to explain council's options, while leaving the parties' next steps unresolved.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-28-2014-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/08/Gruber-Joshua-OS-9802-07-28-2014-00392920xD2C78.pdf

Original opinion text

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JiiK 28. 201-1

Joshua A. Cimhcr. Iisi|iiirc
Slalf Allnmcy. Hcauruil C. ounly

100 Rihaut Road
P.O. Ho,\ 1228

Beau Ion. SC 20901
Dear Mr. Gruber:
Aiiomey General Alan Wilson has referred your letter dated June 27. 201-1 to the Opinions seelion for a

response.

The folkuvinp is this Office's understanding of your (|uestion and our opinion based on that

understanding.

Issue (as qunled Fnun your letter): "On June 4. 2014. the //Iciiiilnri C 'niuiiy/ ( 'apiinl Scihs I'm/ eel lux ( 'nnunission voletI inuiniinously to forward to lletiiiforl Counly ( 'ouneil </ /iraposetl Ordinance calliny/or a < 'apilal I'm/eel Sales Tax Referendiini In he placed on die Nnveinher 4. 2014. yenenil eledion hallol.

The hallol tpieslion conltiined in die Ordinance called for the iinposilion of an eiyhl year one-cein sales lax lo pay for Iwenly-one di/ferenl capilal iniproveiiieiil projecls. The loial ainouni of findiny anlhorized for these projecls was $221 million dollars.

. Uldilioimlly. there was lanyimye included in die hallol

tpieslion dial anlhorized Hetnifirl Connlv lo issue hands of up to $240 million dollars lo pay lor these various projecls. This hallol tpieslion was /orwanletl lo die Oovernmenial ( oinmillee of Bcan/orl ( 'onnly

( ouneil. who. hy a vole of 5-1. approved the hallol tpieslion as presenied am! forwarded die proposal to the full hotly oflleau/ori ( 'onnly Council. On June 25. 2014. iSeaiifon ( 'ounly Council voied ~-4 in deny lirsi readiny of die ( hdinance as presenied.

The tpieslion dun is presenied lo your o/jice concern die leytihlv of die aclions dial may he hiken hy die ( 'apilal I'rojeci Sales Tax Commission siihsetpienl lo the aclions dial may he laken hy die ( 'apilal

Trojecl Sales Tax Ordinance as presenied.

Specifically, would il he legally permissihle for die

Coiiimission lo reconvene of its own voliiion and accord to discuss die aclions laken hy Hetnifirl I 'ounly And. if this is legally permissihle. could they then suhsei/uenlly vole lo forward an Council.

ameiuled/allernalive Ordinance lo lleaufori Conniy Council for iis consit/eralion. Or. allernaiively. would die eniire process as ouilined in Soiilh Carolina Code of Taws f 4-IIT50I) el set/ , neetl lo he repealed in order for die hallol tpieslion to he legally presenied lo die voiers

"

Short Answer: l itis Ofliec believes a court will llnd that Ikaufotl Counly Council must use a ballot question formulated by its Capital Project Sales lax Commission if the Council proceeds with a referendum but that Counly Council has the authority lo remove tiny members of the Commission il has the authority to appoint and may even abolish the Commission itself and may also choose not to proceed in the process of implementing a Capital Project Sales fax.

Ki;Mm-Kr (." Di sras Uciuhm;

I'ovi Ui ncE Box II549

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Con miiia, SC 2921 1 1549

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Thi ! i iiom; li()3.734-3970
I-AI SIMM I- SOtASUOK!

Joshua A. Gruber, Esquire
Page 2

July 28, 2014

Law/Analysis:
By way of background, the South Carolina Department of Revenue has authority to "administer and

collccf the Capital Project Sales Tax "in the same manner that other sales and use taxes are collected.'' S.C. Code § 4-10-350. It is this Office's understanding you have already checked with the Department of Revenue on this issue and that they have confirmed with you that this issue is not one they would answer pursuant to the authority given to them concerning the Capital Project Sales Tax. Therefore, this Oflice will proceed in attempting to answer your question with the understanding that the administrative agency

charged with the administration and collection of the tax did not opine regarding your question. Op. S.C. Attv. Gen.. 2013 WL 1803941 (April 23, 2013).

South Carolina Code § 4-10-320 authorizes the governing body of a county to create a commission to

consider proposals for using the Capital Project Sales Tax. That section states:
<A1 The governing body of anv county is authorized to create a commission subject to the provisions of this section. The commission consists of six members, all of whom

must be residents of the county, appointed as follows:
(1) The governing body of the county must appoint three members of the commission. (2) The municipalities in the county must appoint three members, who must be residents of incorporated municipalities within the county, and who are selected according to the following mechanism:

(a) The total population of all incorporated municipalities within the

county, as determined by the most recent United States census, must be divided by three, the result being an apportionate average.

'

(b) The respective population of each municipality in the county must be divided by the apportionate average to determine an appointive index. (c) Each municipality in the county appoints a number of members to the commission equal to the whole number indicated by their appointive

index. However, no single municipality may appoint more than two members to the commission; unless there is only one municipality in the county, and in such case the municipality is entitled to three appointments to the commission.

(d) When less than three 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 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 that before this time have not provided a representative for the commission.

(e) In the event no municipality is entitled to appoint a member to the commission pursuant to the formula in subitem (c) of this subsection, the municipality with the highest appointive index must be deemed to have an appointive index of one. (B) When the governing body of any county creates a commission, it must be created

in accordance with lire procedure spgsifieri in subsection (A) and only nppn the request of the governing body of the county. If within the thirty-day period following

Joshua A. Gruber, Esquire
Page 3

July 28, 2014

the adontion of a resolution to create the commission, one or more of the

municipalities fails or refuses to appoint their proportionate number of members to the commission, the county governing body must appoint an additional number of members equal to the number that any such municipality is entitled to appoint. A vacancy on the commission must be filled in the manner of the original appointment. (C) The commission created pursuant to this section must consider proposals for funding capital projects within the county area. The commission then formulates the

referendum Question that is to appear on the ballot pursuant to Section 4-l0-330rm.

S.C. Code § 4-10-320 (1976 Code, as amended) (emphasis added). The statute continues: D) The referendum question to be on the ballot must read substantially as follows: "Must a special one percent sales and use tax be imposed in (county) for not more than (time) to raise the amounts specified for the following purposes? (I) S for

(2)
S
for
(3) etc.

Yes U

Noir

If the referendum includes the issuance of bonds, the question must be revised to include the principal amount of bonds proposed to be authorized by the referendum and the sources of payment of the bonds if the sales tax approved in the referendum is inadequate for the payment of the bonds.

S.C. Code § 4-1 0-330(D) (1976 Code, as amended).

This Office has previously opined that a Capital Project Sales Tax Commission is a "creature of statute." Op. S.C. Attv. Gen.. 2002 WL 1340434 (May 28, 2002). As you may be well aware, such a creature of

statute only has those powers expressly conferred or necessarily implied to effectively and successfully accomplish the duties with which it is charged. S.C. Coastal Conservation Leaeue v. S.C. DHEC. 363 S.C. 67, 610 S.E.2d 482 (2005); On. S.C. Attv. Gen.. 2014 WL 2619140 (May 30, 2014) fcitinc Captain's Quarters Motor Inn v. S.C. Coastal Council. 306 S.C. 488, 4 13 S.E.2d 13 (1991)). South Carolina Code § 4-10-320(8) specifically references "the adoption of a resolution to create the commission." Thus, the statute denotes a resolution to form the commissioa It goes without saying the Commission must conform to whatever limitations or requirements are given to it by the statutes governing it and the resolution creating it.

Joshua A. Gruber, Esquire
Page 4

July 28, 2014

Moreover, the code states that "the county governing body may impose a one percent sales and use tax by ordinance, subject to a referendum." S.C. Code § 4-10-310 (1976 Code, as amended) (emphasis added). The statute is clear that county council is under no obligation to impose a one percent sales and use tax and that implicitly if council chooses not to go forward with the tax, they are not required to proceed with a referendum. Id. However, once county council chooses to go forward with the tax pursuant to ordinance, the election commission is required to conduct the referendum pursuant to statute. S.C. Code § Returning to the code. Section 4-l0-330(A) requires the tax be implemented after 4- 10-330(C). referendum approval by an ordinance by the county governing body with "the ballot question formulated by the commission pursuant to Section 4-10-320(C)." As a background regarding statutory interpretation, the cardinal rule of statutory construction is to

ascertain the intent of the legislature and to accomplish that intent Hawkins v. Bruno Yacht Sales. Inc.. 353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003). The true aim and intention of the legislature controls the literal meaning of a statute. Greenville Baseball v. Bearden. 200 S.C. 363, 20 S.E.2d 813 (1942). Hie historical background and circumstances at the time a statute was passed can be used to assist in interpreting a statute, id. An entire statute's interpretation must be "practical, reasonable, and fair" and consistent with the purpose, plan and reasoning behind its making. Id, at 816. Statutes arc to be interpreted with a "sensible construction," and a "literal application of language which leads to absurd consequences should be avoided whenever a reasonable application can be given consistent with the legislative purpose." U.S. v. Ripoetoe. 178 F.2d 735, 737 (4th Cir. 1950). Like a court, this Office looks at the plain meaning of the words, rather than analyzing statutes within the same subject matter when the

meaning of the statute appears to be clear and unambiguous. Sloan v. SC Board of Physical Therapy Exam.. 370 S.C. 452, 636 S.E.2d 598 (2006). The dominant factor concerning statutory construction is the intent of the legislature, not the language used. Spartanburg Sanitary Sewer Dist. v. Citv of Spartanburg. 283 S.C. 67, 321 S.E.2d 258 (1984) fciting Abel I v. Bell. 229 S.C. 1, 91 S.E.2d 548 (1956)). Therefore, we will look to a clear and unambiguous meaning of the statutes. Based on a reasonable

interpretation of the requirements, it would seem the county governing body (Beaufort County Council) is under no obligation to proceed with a tax if it chooses not to, but if council chooses to proceed with the

tax, the council must use "the ballot question formulated by the [Capital Project Sales Tax] commission." S.C. Code § 4-10-330(A).

This Office has previously opined on numerous occasions that the power to remove is incidental to the

power to appoint. See. c.g.. Op. S.C. Attv. Gen.. 2007 WL 655 1 9 (February 1 6, 2007); 2006 WL 1 207275 (April 27, 2006); 2006 WL 148721 (January 3, 2006). The power of appointment implies the power of removal at the pleasure of the appointing authority. 8 S.C. Jur. Public Officers & Public Employees § 12 (2014) (citing Lancford v. State Bd. Of Fisheries. 217 S.C. 118, 60 S.E.2d 59 (1950); State ex rel.

Williamson v. Wannamaker. 213 S.C. I, 48 S.E^d 601 (1948)). This Office has previously opined a position on a Capital Project Sales Tax Commission would likely be a public office for dual office holding purposes. Op. S.C. Attv. Gen.. 2002 WL 1340434 (May 28, 2002). Removal at the pleasure of

the appointing authority would apply to a commission such as the Capital Project Sales Tax Commission as the terms of this public office is not set by statute. 8 S.C. Jur. Public Officers & Public Employees § 12 (2014) (citing State ex rel. Williamson v. Wannamaker. 213 S.C. I, 48 S.E^d 601 (1948)). Therefore, County Council, as the appointing agency for the Capital Project Sales Tax Commission, would have the authority to remove members. Moreover, county government is authorized by statute to establish and abolish commissions. S.C. Code § 4-9-30(6). How Beaufort County Council and its Capital Project Sales Tax Commission decide to proceed beyond the scope of the law is a factual question, which this Office

Joshua A. Gruber. Lsquirc
Page 5

Jufv 2.S. 2014

does not answer.

This Office issues legal, not factual opinions. Op. S.C. Allv. (ien.. 19% \VL 599391

(September 6. 1996) (citing On. S.C. Ally, (ien.. 19*3 WL 182076 (Decern beHl 1983)). Conclusion:

This Office believes a court will find that lieatiforl County Council must use a ballot

question formulated by its Capital Project Sales fax Commission but that it has the authority to remove any members of the Commission it appointed and even abolish the Commission itself and may also

choose not to proceed in the process of implementing a Capital Project Sales Tax. However, for a binding

determination, this Office would recommeiul seeking a declaratory judgment from a court on these matters, as only a court of law can interpret statutes. S.C. Code § 15-53-20. et al.

Until a court or the

Legislature specifically addresses the issues presented in your letter, this is only a legal opinion on how

this Oflice believes a court would interpret the law in the matter. If it is later determined otherwise or if you have any additional questions or issues, please let us know.

Sincerely.

Anita S. Fair

Assistant Altomev General

REVIEWKD AND APPROVliD MY:
-/

I). Cook

Solicitor General

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