Who chose Beech Island water district directors when its bylaws called for elections?

Plain-English summary

A senator asked how Beech Island Rural Community Water District could fill board vacancies when its bylaws called for customer elections but the creating statute provided for appointment by the Governor on the county legislative delegation's recommendation. No candidate had filed for the district's planned 2015 election. The Attorney General concluded that state law controlled over any conflicting bylaws. It viewed the customer elections as advisory and unnecessary; the delegation chose whom to recommend, and the Governor's appointment role was ministerial.

The opinion said the district could seek customers' input without giving them the final statutory selection power. It also left the specific method for choosing nominees to the legislative delegation, rather than devising a replacement election procedure in the opinion. The 2015 conclusion applied to the district's described enabling act and bylaws.

Currency note

This opinion was issued in 2015. 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 district have to hold a customer election before filling vacancies?
A: The 2015 AG said no. The elections were advisory rather than a statutory prerequisite.

Q: Who made the substantive choice of directors?
A: The county legislative delegation selected people to recommend to the Governor.

Q: Could the district's bylaws override the statute?
A: No. The AG said the statute prevailed if there was a conflict.

Background and statutory framework

The opinion read the district's creation law against its longstanding bylaw election practice. It relied on earlier AG opinions explaining that a district may gather public input, but cannot delegate the delegation's appointment discretion to its customers. The absence of election candidates did not change the legal chain of recommendation and appointment.

Citations and references

• The AG said the customer elections “are advisory and are not necessary.”
• It concluded “it is the delegation who chooses the method of selecting the directors.”

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-17-2015-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/06/Young-T.-OS-9926-FINAL-Opinion-6-17-2015-00676411xD2C781.pdf

Original opinion text

'" so,
Alan Wilson
ATTORNEY GENERAL

June 17,2015

The Honorable Tom Young, Jr.
P.O. Box 65 1
Aiken. SC 29802

Dear Senator Young:
Our Office received your request for an opinion regarding how the Beech Island Rural Community Water

District ("Beech Island") can llll upcoming vacancies on its board of directors if its bylaws and the statute creating water districts are not uniform. You explain that Beech Island was established in 1965, pursuant to Act 1022 from 1964. Section 3 of this Act provides that a Board would be comprised of five resident

electors, appointed by the Governor upon recommendation of a majority of the legislative delegation.1 However. Beech Island chose to hold elections among its customers for the board members, wherein the

winner of the election would be referred to the legislative delegation. Beech Island's by-laws2 require an election and

it

is your understanding that this has been

the practice since the water district's

establishment. The websites of the South Carolina Secretary of State and of Beech Island stale that board members are elected by Beech Island's customers. Beech Island has traditionally held an election on the third Tuesday in September in odd numbered years. Per this tradition, an election would be held on September 15 of this year in order to fill two upcoming vacancies. Candidates are placed on the ballot after submitting a written document indicating their desire to be on the ballot.

The deadline for submission of this document was May 26, 2015 but no one

expressed an interest in being on the ballot.

You are asking how Beech Island should proceed in

providing the legislative delegation the names of candidates to the board of directors. LAW/ANALYSIS:

In a prior opinion, we addressed a similar situation - whether the act creating the Dalzell Water District of Sumter County superseded its by-laws or whether the by-laws controlled because the board was given

Beech Island was formed pursuant to 1964 Act Number 1022, which is now codified as section 6-13-10 et sec/, of

the South Carolina Code of Laws. S.C. Code Ann. § 6-13-10 (1976 Code, as amended) provides for the creation of rural community water districts and grants them the functions of acquiring, constructing, and operating a waterworks system; utilizing water from available sources: and providing a flow of water through pipes for domestic, commercial, or industrial users.

S.C. Code Ann. § 6-13-30 (1976 Code, as amended) states that the "district (the

rural community water district] shall be operated and managed by a board of directors" and "[t]he board shall

consist of five resident electors oflhe area who shall be appointed by the Governor, upon the recommendation of a majority of the county legislative delegation." Pursuant to S.C. Code Ann. § 6-13-50 (1976 Code, as amended), the board is granted certain powers, such as making "bylaws for the management and regulation of its affairs." Beech Island's bylaws have not been provided to this Office. Rembert C. Dennis Building

. Post Office Box 11549 . Coll mbia.SC 2921 1-1 549

. Telephone 803-734-3970

. Facsimile 803-253-6283

The Honorable Tom Young, Jr.
Page 2
June 17,2015

authority to create its by-laws. We determined that an enabling statute controls over the by-laws when the

two conflict. We explained:
with respect to the by-laws of a water district, this Office has recognized that "[i]n the event of a conflict between state law and a provision of the District's by-laws, state law would prevail." Op. Attv. Gen.. February 5, 1987. In that same opinion, quoting the Supreme Court in Law v. Citv of

Spte.. supra3, the following authority in support of the proposition that any conflict between a water authority's by-laws and a state statute would require the by-laws to yield:
[a]n

ordinance

which

is

repugnant

either

to

the

Constitution or general laws is ipso facto void.... "All

ordinances or by-laws adopted by" a municipality
"contrary to the laws of the land are void." "An
ordinance is the product of legislative power conferred

upon the municipality. One essential to its validity is that
it shall not conflict with the laws of the State."... A
statute

will

override

a

conflicting

city

ordinance,

whether it precedes or follows the ordinance in point of
time...." A State law is paramount to a conflicting city

ordinance, where they both relate to a subject with
reference to which the right to legislate is concurrent."...

City ordinances conflicting with State Constitution or
statute are void. 148 S.C. at 234.

Applying this authority to the Daniel Morgan Rural Water District, even though the District Board possessed the express authority to "make

bylaws for the management and regulation of its affairs," we advised in the 1987 opinion that state law controlled where a by-law conflicted therewith. See also. Society of Professional Journalists v. Sexton. 283

S.C. 563, 324 S.E.2d 313 (1984) [DHEC regulations which makes death certificates and medical examiners' records nondisclosable to the public conflicts with FOIA is invalid]; Citv of North Chas. v. Harper. 306 S.C. 153, 410 S.E.2d 569 (1991) [ordinance conflicted with state statutes]; Riverwoods v. Co. of Charleston. 349 S.C. 378, 563 S.E.2d 65 1 (2002)

[ordinance which granted ad valorem property tax exemption solely to owner-occupied residences conflicted with enabling legislation]. Op. S.C. Attv. Gen.. September 9, 2002 (2002 WL 3134825) (quoting Op. S.C. Attv. Gen.. Februaiy 5, 1987(1987 WL 342791)).

Based upon our prior opinion, section 6-13-30, providing for the appointment of board members by the governor upon recommendation of a majority of the county legislative delegation, prevails over Beech

' Law v. Citv of Spte.. 148 S.C. 229, 146 S.E. 12 (1928).

The Honorable Tom Young, Jr.
PageS
June 17,2015

Island's bylaws if a conflict exists. However, we do not believe there to be a conflict. In our September 9, 2002 opinion, we opined that:

[0]ur Supreme Court has recognized that a conflict occurs between a

statute and an ordinance (or by-law) where both contain either express or

implied conditions which are inconsistent or irreconcilable with each other; mere differences in detail do not render them conflicting and if either is silent where the other speaks, there is no conflict. Town of Hilton Headv. Fine Liquors. 302 S.C. 550, 397 S.E.2d 662 (1990). Id. This Office in a September 12, 1973 opinion, referring to former section 59-626 etseq., 1962 Code of

Laws, which is now codified as section 6-13-10 et seq., 1976 Code of Laws, commented that the election for Directors held by Beech Island was "advisory only, as the Directors serve under appointment by the Governor upon recommendation of the County Legislative Delegation, and the records in the Office of

the Secretary of State reflect that appointments as Directors have been made by the Governor." Op. S.C. Attv. Gen.. September 12, 1973 (1973 WL 26877) (emphasis added).

While the elections held by Beech Island are not contradictory to State law, they are not necessary. State law provides that it is the county legislative delegation, and not Beech Island's customers, who is responsible for choosing directors for appointment. As we explained in our February 5, 1987 opinion,

[1]t should be noted that. . .the actual exercise of discretion in choosing persons for appointment rests with the Delegation. The Governor's role

in the appointment procedure is ministerial and involves no exercise of discretion. Blalock v. Johnston. 180 S.C. 40, 185 S.E. 51 (1936). In the exercise of its discretion, the Delegation may seek input from whomever

the members deem appropriate, as long as the actual decisions as to recommendations to be made to the Governor are made by the Delegation. 67 C.J.S. Officers § 40; 63A Am.Jur.2d Public Officers and Employees § 95. The actual decision-making may not be delegated.

Unless the Delegation abuses its discretion, courts will not attempt to control the appointment process. Id. Op. S.C. Attv. Gen.. February 5, 1987 (1987 WL 342791)).

Since the county legislative delegation, and not Beech Island, provides recommendations to the governor, it is the delegation who chooses the method of selecting the directors. Our Office can not assist the county legislative delegation in determining a method of selecting the directors because this involves a determination of fact which is beyond the scope of an opinion; we can only assist with an opinion on a matter of law. See Op. S.C. Attv. Gen.. June 25, 2013 (2013 WL 3362068). CONCLUSION

In conclusion, this Office believes that the law is as follows:

The Honorable Tom Young, Jr.
Page 4
June 17. 2015

1.

Section 6-13-30, providing for the appointment of board members by the governor upon

recommendation of a majority of the county legislative delegation, prevails over Beech Island's bylaws if a conflict exists.

While we do not believe there to be a conflict, the

elections arc advisory and are not necessary.
2.

Since the county legislative delegation, and not Beech Island, provides recommendations for

directors to the governor, it is the delegation who chooses the method of selecting the

directors.
Please be aware that this is only an opinion as to how this Office believes a court would interpret the law in this matter.

Sincerely,

Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY;

D. Cook
Solicitor General