Could Denmark-Olar school trustees collect a per diem in addition to their annual compensation?

Plain-English summary

The Denmark-Olar School District Two board asked whether its trustees could receive a meeting per diem in addition to annual compensation under a local act, and whether it could increase that per diem during current terms. The South Carolina Attorney General's office concluded in 2008 that the later, district-specific act controlled over the earlier general per-diem statute. Trustees therefore received the act's annual compensation and were not also entitled to a per diem under the general provision.

Because the office found no authority for the additional per diem, it did not answer the remaining questions about how much a per diem could be, whether an increase could start during current terms, or whether a proposed earlier effective date was proper.

Currency note

This opinion was issued in 2008. 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

Could the trustees collect both annual compensation and a meeting per diem?

The AG said no. It read the later local act as controlling for this board's pay.

Why did the local act prevail?

The opinion found the later special act inconsistent with, and more specific than, the earlier general per-diem provision concerning trustee compensation.

Did the AG approve the proposed per-diem increase?

No. Having found no per diem authorized, the office said the questions about its amount and effective date needed no answer.

Background and statutory framework

S.C. Code Ann.§ 59-1-350 allowed board trustees a per diem for actual meeting attendance. Act No. 157 provided annual compensation for the specified school boards. The opinion applied principles that a later conflicting statute and a special act may govern over an earlier general statute. It concluded the local act was a substitute for the general per-diem arrangement as applied to Denmark-Olar trustees.

Citations and references

• S.C. Code Ann.§ 59-1-350: general board per-diem provision.
• Act No. 157: district-specific annual trustee compensation.

Official title

Regarding recent action by the Denmark-Olar School District Two Board of Trustees (“ the Board”) regarding their per diem pay.

Requester

Alvin Maynor, Chairman, Board of Trustees, Bamberg School District Two

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-10-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/04/maynor-a-os-8565-os-3-10-08-per-diem-pay-board-of-trustees.pdf

Original opinion text

March 10, 2008

Alvin Maynor, Chairman
Board of Trustees
Bamberg School District Two
62 Holly Avenue
Denmark, South Carolina 29042
Dear Mr. Maynor:
You have requested an opinion of this office regarding recent action by the Denmark-Olar School District Two Board of Trustees (“the Board”) regarding their per diem pay. You referenced the provisions of Act No. 157 of 1995 which states that the members of the Board “...shall receive annual compensation of one thousand two hundred dollars for their service on...(the Board)...during a particular calendar year.” You also referenced the provisions of S.C. Code Ann.§ 59-1-350 which states that
[m]embers of the county board of education or board of trustees may serve without pay. Each member of the board may receive a per diem for attendance at board meetings and may be paid mileage to and from such meetings. No member may receive per diem and mileage unless in actual attendance upon a meeting of the Board.... You indicated that a motion was passed in December, 2007 that would increase the per diem of members of the Board prospectively beginning January, 2008 during the terms of the current board members. However, prior to distribution of the per diem in accordance with the motion, the Board has requested an opinion of this office on the following questions:

1. May the Board members receive compensation under Act No. 157 and per diem
   under Section 59-1-350? If not, which provision is controlling?
2. If the Board members may receive per diem in addition to compensation, is there
   a limit on the amount of per diem that the Board may receive?
3. May an increase take effect during the terms of the current Board members?

Mr. Maynor
Page 2
March 10, 2008

4. May the increase take effect beginning January, 2008, although the Board has
   withheld further action (i.e. distribution of checks) pending the outcome of this opinion request? Section 59-1-350 which provides a per diem for members of a board of trustees was enacted in 1974. Act No. 157 providing annual compensation of $1200.00 was enacted in 1995. As to the issue of whether there is a conflict between the two provisions, rules of statutory construction must be considered. The primary goal is to ascertain the intent of the General Assembly. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). As stated in an opinion of this office dated October 5, 2000, generally,
   ...even though the Legislature may not expressly provide for repeal of certain statutes, such can be accomplished by implication. Repeal by implication is not favored under the law. In the Interest of Shaw, 274 S.C. 534, 265 S.E.2d 522 (1980). However, “where two legislative acts are repugnant to, or in conflict with each other, the last one passed, being the latest expression of the legislative will, will, although it contains no repealing clause, govern, control, or prevail, so as to supersede and impliedly repeal the earlier act to the extent of the repugnancy.” City of Newberry v. Public Service Commission of South Carolina, 287 S.C. 404, 407, 339 S.E.2d 124, 126 (1986). The Court in City of Newberry v. PSC also stated that “[t]he case law of this State is clear that when there is a conflict between statutory provisions, the later enacted legislation prevails.” Id. Moreover, “[w]here the later of two acts covers the whole subject matter of the earlier one, not purporting to amend it, and plainly shows that it was intended to be a substitute for the earlier act, such later act will operate as a repeal of the earlier one, though the two are not repugnant.” Independence Ins. Co. v. Independent Life and Acc. Ins. Co., 218 S.C. 22, 61 S.E.2d 399, 404 (1950). An opinion of this office dated September 6, 1989 stated that
   [o]rdinarily a statute which deals with the common subject matter in a minute and particular way will prevail over one of a more general nature; and a legislative intent clearly expressed in a special act will prevail over any implication which can be gathered from a general statute... As stated in another opinion of this office dated August 15, 1997, “[t]he last act of the Legislature is the law.” In the situation addressed by you, there is an inconsistency between Section 59-1-350, a general law provision which provides a per diem for members of a board of trustees and Act No. 157, a special act for the Board of Trustees of Bamberg-Ehrhardt School District One and Denmark-

Mr. Maynor
Page 3
March 10, 2008
Olar School District Two, which provides annual compensation to members of those boards of trustees. Section 59-1-350 was enacted in 1974 while Act No. 157 was enacted in 1995. Consistent with the above, in the opinion of this office, since both provisions deal with payment to members of a board of trustees, the provisions of Act No. 157 would appear to control as it is last in time and acts as a substitute for Section 59-1-350. Act No. 157 may also be construed as a special act prevailing over a more general act. Therefore, in the opinion of this office, members of the Denmark-Olar School District Two Board of Trustees should receive compensation under Act No. 157 but not receive any per diem under Section 59-1-350. Inasmuch as no per diem is authorized, a response to your remaining questions appears unnecessary. If there are any questions, please advise. Sincerely, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General