Did a county council budget meeting require public notice, and could a council member fill a citizen seat in 1995?

Official title

Inquiring as to the proper procedures for Pickens County Council to follow in regards to several situations involving the Freedom of Information Act and possible dual office holding violations.

Requester

G. Edward Welmaker, Esquire

Plain-English summary

Pickens County’s attorney asked about council meetings with other agencies to review budgets and about placing a second county council member on a regional council of governments as a “citizen member.” The 1995 informal opinion said the described information-gathering meetings appeared subject to public notice under the Freedom of Information Act despite no planned action or vote. On the appointment, it cited constitutional provisions exempting certain government officials serving on regional councils from dual-office restrictions, but expressed concern that appointing a council member to a designated citizen seat might be impermissible self-appointment. The letter did not give an unqualified approval of that arrangement.

Currency note

This opinion was issued in 1995. 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 a vote necessary for the described meeting to require notice? A: No. The letter said the budget-review sessions appeared subject to notice even though no action or vote was planned.

Q: Was regional council service itself automatically prohibited dual office holding? A: The letter cited constitutional exemptions for government officials serving on regional councils of governments.

Q: Did the AG approve a second county council member for the citizen seat? A: No. The author raised a distinct self-appointment concern and did not resolve it in favor of the proposed appointment.

Background and statutory framework

The letter relied on enclosed earlier AG opinions for the meeting-notice conclusion and the regional-council dual-office exemption. It separately discussed Bradley v. City Council of Greenville on an appointing body placing one of its own members in another office.

Citations and references

• Article VII, §15 and Article VIII, §13(C), the constitutional provisions discussed for regional councils.
• Bradley v. City Council of Greenville, cited on self-appointment.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-28-1995-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/95june28welmaker.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
I

CHARLES MOLONY CONDON
AITORNEY GENERAL

June 28, 1995

G. Edward Welmaker, Esquire
Pickens County Attorney
Post Office Box 899
Pickens, South Carolina 29671
RE: Informal Opinion
Dear Mr. Welmaker:
By your letter dated May 15, 1995 (which I received on June 20), you had inquired as to proper procedures for Pickens County Council to follow in two circumstances. We have searched our files of previously issued opinions and have found opinions which appear to be responsive to both of your inquiries. The first inquiry involves the Freedom of Information Act. You advised that frequently the County Council is called upon to meet with other governmental and quasigovernmental agencies, such as the local technical college. The purpose of such meetings would be to review budget requests. You asked whether such session would constitute a public meeting for which notice is required. You further advised that no action or votes would be taken, as the meeting would be merely to gather information from the other board as to its budgetary needs. In response I am enclosing copies of Ops. Att'y Gen. Nos. 83-100 and 83-55. Based on these opinions, it would appear that the meetings which you have described would be subject to the notice requirements of the Freedom of Information Act. The second inquiry relates to dual office holding. The local. Council of Governments provides for a County Council member to be representative on its governing board. In addition, County Council can appoint representatives from the citizens of the particular county. Provisions are made for minority representation. The question has been asked if a designated second County Council member, in addition to the one designated REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA.

s.c. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

G. Edward Welmaker, Esquire
Page 2
June 28, 1995
as the elected official, can serve as tpe appointed representative. Thus, the "citizen member" would have the dual capacity as a member of the County Council. You asked whether the elected member of County Council, who would serve as the "citizen member," would have the same exemption from dual office holding as the member of County Council would have. I am enclosing copies of Ops. Att'y Gen. dated May 6, 1992; November 4, 1991; February 7, 1984; and February 1, 1973, to the effect that Article VII,
§15 and Article VIII, §13(C) of the state Constitution exempt members of regional councils of governments, who are elected or appointed officials or employees of government, from the dual office holding prohibitions of the South Carolina Constitution. Of some concern to me in the situation you have described would be the decision in Bradley v. City Council of Greenville, 212 S.C. 389, 46 S.E.2d 291 (1948). Therein, the court stated that in the absence of a constitutional or statutory provision so authorizing, it would be "'contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members."' 212 S.C. at 397. While I believe the state constitution.anticipates that elected or appointed officials will serve on the boards of regional councils of governments (as would be the circumstance as to the County Council member already appointed and serving), I have some concerns as to whether appointing a County Council member forthe "citizen member" position would be the type of self-appointment cautioned against in the cBradley decision. I trust that the foregoing and the enclosures will satisfactorily respond to your inquiry. Please feel free to contact me if you should need additional assistance or clarification. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I am Sincerely,

VJ~iJ.~
Patricia D. Petway
Senior Assistant Attorney General
Enclosures