Could a county supervisor spend more on a vehicle than the county council appropriated?

Plain-English summary

A legislator described a county council authorizing a vehicle purchase up to one amount and a supervisor allegedly spending more by using savings elsewhere in the budget. The 2016 AG said an official who spent public funds beyond an appropriation acted outside legal authority. It predicted that an official who was at least negligent in doing so could be personally liable for the excess, even if the money served another public purpose.

The office did not find that this supervisor had actually violated the law. That depended on facts outside an AG opinion. It also declined to answer the request for possible criminal charges and penalties. The opinion therefore supplied a general rule and potential civil consequence, not a finding about a named official.

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 savings in other budget areas automatically increase the approved vehicle amount?
A: The AG said spending contrary to the county's appropriation would exceed the supervisor's authority; it did not decide whether the described facts met that rule.

Q: Could the official be personally responsible for excess spending?
A: The opinion predicted possible personal liability if a court found the official at least negligent in exceeding the budgeted authority.

Q: Did the opinion identify criminal charges?
A: No. The office expressly declined to opine on potential criminal charges or penalties.

Background and statutory framework

The opinion treated a properly enacted county budget as a legislative action with legal force. It read the supervisor's power to supervise spending as bounded by council appropriations and the state constitutional requirement that public money be drawn only under lawful appropriations. Whether this particular vehicle purchase exceeded authority required a factual finding the office did not make.

Citations and references

• The AG stated that “expending public money in excess of the budgeted amount is an unlawful act.”
• It said personal liability “would turn in part on a factual determination that the official acted at least negligently.”
• Source: South Carolina Attorney General, July 5, 2016.

Official title

Regarding the legality and implications of certain actions by a county supervisor.

Requester

The Honorable John Richard C. King, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-5-2016/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/07/King-J.-OS-10046-FINAL-Opinion-7-5-2016-01049699xD2C78.pdf

Original opinion text

Alan Wilson
Attorney General

July 5, 2016

The Hon. John Richard C. King
South Carolina House of Representatives
PO Box 11555

Rock Hill, SC 29731

Dear Representative King:

Attorney General Alan Wilson referred your request dated May 27, 2016 to the Opinions section for a response. We understand that you request an opinion regarding the legality and implications of certain actions by a county supervisor. By way of background, you state: A County Council voted and authorized a county supervisor to purchase and spend $36,000 on a vehicle as part ofits annual budget. Throughout the budget, there was money saved from various areas. The county supervisor then proceeded to take the money saved from the other areas of the budget and purchased a vehicle in excess of $60,000. As I previously stated, the county council did not authorize the county supervisor to spend more than $36,000 on the vehicle.

The issues I would like addressed are asfollows:

1. Are the actions ofthe County Supervisor lawful?
2. What are the potential criminal charges and penaltiesfor such actions ifthey
   are not lawful?
3. Are there any civil remedies?
   Law / Analysis

Based on the following analysis, in our opinion, a court of competent jurisdiction would find that the actions of a public official who spends public money in excess of the appropriated amount exceeds his or her legal authority, and therefore acts unlawfully. S.C. Const, art. X,
§ 8. We also believe that a public official who is at least negligent in exceeding his or her budgetary authority would be personally liable for the public money spent in excess of the
.appropriated amount.
Op. S.C. Att'v Gen.. 2003 WL 21040136 (February 21, 2003). This is our conclusion based on the analysis below.

rOEMBERT C.Dennis Building • Post Office Box 11549 • Columbia,SC 29211-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

The Hon. John Richard C. King
Page 2

July 5, 2016

As you may be aware, this Office does not determine facts in a legal opinion. Op. S.C. Atf v Gen.. 2012 WL 440540 (February 6, 2012). For that reason, this Office will not determine

in this opinion whether specific, illegal actions actually were taken or whether a public official is actually liable. We merely opine here on the law as relevant to your questions. 1,

Are the actions of the County Supervisor lawful?

Generally speaking, a properly-passed county budget has the force of law because it is a

legislative action passed by ordinance. 1 S.C. Code Ann. § 4-9-120 (1986) ("The council shall take legislative action by ordinance

").

In a council-supervisor form of government, the

county supervisor has the power and duty "to execute the policies and legislative actions of the council" generally.

S.C. Code Ann. § 4-9-420(2) (1986).

The law also gives the county

supervisor in a council-supervisor form of government the power and duty "to supervise the

expenditure of funds appropriated by council." S.C. Code Ann. § 4-9-420(4) (1986). Our Office has opined that "[w]hen the Council properly enunciates policies, the supervisor's only function is to carry out such policies." Op. S.C. Atf v Gen.. 1970 WL 16805 (April 22, 1970). Moreover, our State's constitution mandates that "[m]oney 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."

S.C. Const, art. X, § 8.

Therefore, if a county supervisor spends public money in a

manner that is contrary to an ordinance of the county, then he or she has acted unlawfully by

exceeding his or her legal authority.
For these reasons, it is the opinion of this Office that expending public money in excess

of the budgeted amount is an unlawful act.

Having said that, determining whether the county

supervisor you refer to in your letter actually acted unlawfully would require a factual determination, which is outside the scope of this opinion.

See Op. S.C. Att'v Gen.. 2012 WL

440540 (February 6, 2012).
2.

What are the potential criminal charges and penalties for such actions if they are

not lawful?

I regret to inform you that our Office must respectfully decline to answer this question,

because we do not opine in a legal opinion on questions regarding potential criminal charges and penalties for an action already taken. Our longstanding policy is to recommend that you direct those questions to local law enforcement and the local solicitor to make a prosecutorial decision. See Op. S.C Att'v Gen.. 1989 WL 406160 (July 11, 1989) ("this Office can only set forth the general law to you in the abstract. [WJhether a specific prosecution is warranted, or is on sound legal ground in an individual case, remains a matter within [the solicitor's] exclusive discretion

1 Based on your question, it appears that the county you describe is governed by the countysupervisor form of government described in S.C. Code Ann. § 4-9-410 (1986) et. seq. We also assume for the sake of this opinion that the county council in your question properly adopted the budget after public notice and public hearings required by S.C. Code Ann. § 4-9-130 (1986).

2 However, we must not exclude that in making a factual determination, one must consider extenuating circumstances and other intervening actions.

The Hon. John Richard C. King
Page 3

July 5, 2016

and jurisdiction.").

However, in the past, prosecutors have charged public officials with, e.g.,

misconduct in office for such action.
3.

Are there any civil remedies?

South Carolina public officials who misspend public funds may be personally liable for the those funds under the "due care" standard set out by the South Carolina Supreme Court in Chandler v. Britton. 197 S.C. 303, 15 S.E.2d 344 (1941). The Court in Chandler held that: in the absence of any statutory law to the contrary a public official is not liable for

the loss of funds deposited with him if he has exercised that degree of care and prudence in the management of the funds which a person of ordinary care and prudence would exercise in his own business. Id.: see also Spartanburg Cntv. v. Mitchell. 214 S.C. 283 at 288, 52 S.E.2d 266 at 269 (1949) (citing ChandlerT The prior opinions of our Office consistently support holding public officials accountable for their stewardship of the public fisc. For example, our Office has opined that a public official

who spends public money without authorization generally does so at his or her own risk of legal liability for those funds.

Op. S.C. Att'v Gen.. 2003 WL 21040136 (February 21, 2003).

Our

Office also has recognized that "[t]he law in South Carolina is supportive of liability for public

officers who perform ultra vires3 acts." Op. S.C. Atfv Gen.. 1997 WL 323769 (May 13, 1997). Personal liability for misspent public funds arises from the role of public officers as trustees of the taxpayer's funds. See Sumter Cntv. v. Hurst. 189 S.C. 316, 1 S.E.2d 242 (1939) ([Wjhen a public officer receives money for the public use, he is a trustee to receive such monies

and to pay them to the public official or function for whom or which they were intended."). Our Office thoroughly discussed this responsibility in a 1997 opinion which addressed the duties of public university officials to charge proper tuition rates.

Op. S.C. Att'v Gen.. 1997 WL 208002

(March 3, 1997). That opinion cited to numerous cases and secondary sources in support of our position that public university officials may be personally liable for failing to properly collect

higher tuition rates from out-of-state students as required by law. Id. The opinion, for example,

quoted 67 C.J.S. Officers § 212 for the statement that "[a]ny public officer who wrongfully

withholds or misappropriates public funds, or who pays or authorizes the illegal payment of public funds is personally liable for such misappropriation or illegal payment." Id. Our Office also has opined that a public official may be liable for misspent public funds even when the funds are spent for a public purpose and not for private benefit.

In 2003, we

issued an opinion that addressed a question where a county council appropriated certain funds for a specific account, but the funds were deposited into another account instead and "not spent in

3 When a public officer acts outside the scope of his or her legal authority, that act is "ultra vires," meaning that it is unauthorized and beyond the power of the actor. Dictionary 1755 (10th ed. 2014).

See Black's Law

The Hon. John Richard C. King
Page 4
July 5, 201 6

accordance with County Council's appropriation."

(February 21, 2003).

Op. S.C. Att'v Gen.. 2003 WL 21040136

That opinion reiterated the discussion in our 1997 opinion regarding the

responsibility of public officers for public money, and concluded that: a public official, such as an officer of county government, has a responsibility to use public funds subject to his or her control as the funds were intended by the

governing body (i.e. county council).

It is further apparent that, should a public

officer fail to use public funds within his control as authorized, personal liability may result. Id.

The 2003 opinion noted that "personal liability for officers spending public funds for one

public purpose when the governing body has expressed an intention that the funds be used for another public purpose is not as clear cut" as the case of money misappropriated for private use, but predicted that the due care standard of Chandler v. Britton would apply. Id. For these reasons, it is the opinion of this Office that a court could find a public official personally liable for spending public funds in excess of the budgeted amount, even if the excess

funds are spent for a public purpose. This liability would turn in part on a factual determination that the official acted at least negligently in exceeding the budgetary authority. reiterate that any such factual determination is outside the scope of this opinion.

We must

See Op. S.C.

Att'v Gen.. 2012 WL 440540 (February 6, 2012).
Conclusion

In summary, for the reasons discussed above, this Office believes that a court of competent jurisdiction would find that the actions of a public official who spends public money

in excess of the appropriated amount acts unlawfully.

We also believe that a court would find

that a public official who is at least negligent in such an ultra vires act would be personally liable for the public money spent in excess of the appropriated amount.

However, this Office is only

issuing a legal opinion based on the current law and the information as provided to us. Until a court or the General Assembly 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, 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 (2005).

If it is

later determined otherwise, or if you have any additional questions or issues, please let us know.

Sincerely,

David Jones

Assistant Attorney General

The Hon. John Richard C. King
Page 5
July 5,2016

REVIEWED AND APPROVED BY:

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Robert D. Cook
Solicitor General

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