Could West Columbia put its mayor pro tempore in charge of council meetings while the mayor was present?

Official title

Asking may a city council form of municipal government vote the mayor pro tempore instead of mayor as the presiding officer at city council meetings?

Requester

The Honorable Joseph W. Owens, Mayor, City of West Columbia

Plain-English summary

West Columbia's mayor asked whether its council could vote to have the mayor pro tempore preside at council meetings even though the mayor was present and able to serve. The Attorney General predicted that a court would reject an ordinance doing so. The opinion read the state provision governing a mayor pro tempore as authorizing that officer to act during the mayor's absence or disability, or to serve during a vacancy until a successor was elected.

The office noted that the city's existing ordinance said either the mayor or mayor pro tempore could preside. It interpreted that local language in light of state law and concluded that council could not use a new ordinance to take a duty from a mayor who had not forfeited office and was neither absent nor disabled.

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: Could council vote to have the mayor pro tempore preside while the mayor was there? A: The opinion predicted no. It said an ordinance assigning that role to the mayor pro tempore without the mayor's absence or disability would conflict with state law.

Q: When could the mayor pro tempore act as mayor under the law discussed? A: The opinion identified the mayor's absence or disability and a vacancy pending election of a successor.

Q: Did council's power to set meeting rules let it override the state rule? A: No. The office distinguished council's authority to set meeting rules from an ordinance that would transfer a duty governed by state law.

Background and statutory framework

The opinion considered West Columbia's council form of government, its local ordinances, and the state provisions governing council meetings and mayor pro tempore service. It relied on prior Attorney General views that a municipal council could not take away duties granted by statute to the mayor.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-27-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/03/owens-j-w-os-9756-3-27-14-whether-council-members-can-usurp-authority-given-to-mayor-00284700xD2C78.pdf

Original opinion text

ALAN WILSON
ATTORNEY GENERAL

March 27, 2014

The Honorable Joseph W. Owens
Mayor, City of West Columbia
P. 0. Box 4044
West Columbia, South Carolina 29.171-4044
Dear Mayor Owens:
Attorney General Alan Wilson has referred your letter dated March 19, 2014 to the Opinions section for a response. The following is this Office's understanding of your question and our opinion based on that understanding.

Issue: May a cify council in a council form of municipal government vote the mayor pro tempore instead of the mayor as the presiding officer at city council meetings? Short Answer: No, a city ordinance may not violate statutory law. Law/Analysis: By way of background, it is this Office's understanding that the City of West Columbia currently has a proposed ordinance that, among other things, would authorize the mayor pro tempore to preside at city council meetings in the place of the mayor without the absence or disability of a city's mayor. It is also this Office's understanding from your letter and from the City of West Columbia's ordinances that the City of West Columbia is structured as a council fonn of municipal government, pursuant to South Carolina Code Section 5-11-10. City of West Columbia, S.C, Ordin. 1-1-1. In a council form of municipal government, the mayor is a member of the municipal council and has the same voting power The legislative and administrative (one vote) as each of the other councilman. S.C. Code § 5-11-30. powers of the municipality are vested in the municipal council. S.C. Code§ 5-11-30. Additionally, a city council may create municipal departments, offices or agencies and prescribe their functions, hire an administrator and hire an officer under a council fonn of government S.C. Code § 5-11-40. However, a city council should not delegate legislative or policy-making powers but may delegate administrative and ministerial powers. See Op. S.C.Atty. Gen., 1985 WL 259106 (January 7, 1985). Under South Carolina law in a council fonn of government all municipal powers not otherwise proscribed statutorily belong to the municipal council. S.C. Code§ 5-7-160. Additionally, a city council is required to meet monthly and is authorized to "determine its own rules and order of business and shall provide for keeping minutes of its proceedings which shall be a public record." S.C. Code§ 5-7-250. This Office was asked a similar question concerning a municipal council's attempt to pass an ordinance that removed powers from the mayor and gave them to the mayor pro tempore in a council form of municipal government In that opinion we stated:

REMBERT

c. DENNIS BUILDING • POST 0FACE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Joseph W. Owens
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March 27, 2014

This Office has consistently held a council cannot usurp duties that are specifically granted statutorily to a mayor. Op. S.C. Atty. Gen., 2012 WL 440544 (January 13, 2012) (citing Op. S.C. Atty. Gen., 1979 WL 43108 (October 12, 1979)). Additionally, "departmental powers conferred by statute cannot be overridden by local ordinance, taken away or limited by the municipal council or governing body, or overridden by an officer acting beyond his or her authority ... " Op. S.C. Atty. Gen., 2012 WL 440544 (January 13, 2012) (citing 62 C.J.S. Municipal Corporations § 568). As we further explained in a prior opinion: "[I]t is well established that a municipal council may not delegate discretionary duties to individual members of council. It has thus been recognized as the governing rule" that
[a] municipal governing body cannot delegate to a municipal officer or even to one of its own committees the power to decide legislative matters properly resting in the judgment and discretion of that body or to one member of the governing body. Thus, acts by individual members of a public body cannot bind the municipality unless officially sanctioned in accordance with a statute. The members of the governing body are chosen by the people to represent the municipality and they are charged with a public trust and the faithful performance of their duties and the public is entitled to the judgment and secretion of each member although the governing body may refer matters coming before it to a committee for examination and fact-finding. Op. S.C. Atty. Gen., 2003 WL 22862787 (November 13, 2003) (citing 56 Am.Jur.2d, Municipal Corporations, § 134). Op. S.C. Atty. Gen., 2013 WL 204787 (January 3, 2013). This Office recognizes a long-standing rule that it will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law. Ops. S.C. Atty. Gen., 2009 WL 959641 (March 4, 2009); 2006 WL 2849807 (September 29, 2006); 2005 WL 2250210 (September 8, 2005); 1986 WL 289899 (October 3, 1986); 1984 WL 249796 (April 9, 1984). Furthermore, "[t]he absence of any legislative amendment following the issuance of an opinion of the Attorney General strongly suggests that the views [ex]pressed therein were consistent with the legislative intent." Op. S.C. Atty. Gen., 2005 WL 22502 lO (September 8, 2005) (citing Scheff v. Township of Maple Shade, 149 NJ.Super. 448, 374 A.2d 43 (1977)). Thus, let us address your specific question. It is this Office's understanding the City of West Columbia currently has an ordinance in place that states: A majority of the council members serving shall constitute a quorum for the conduct of business at any meeting. The major or mayor pro tempore shall preside, except that in the absence of both, the members present shall elect a presiding member. Except as otherwise required by state law or ordinance, all proceedings of council shall be governed by "Robert's Rules of Order." City of West Columbia, S.C, Ordin. 1-3-3 (emphasis added). While the language of the ordinance may appear ambiguous in allowing either the mayor or the mayor pro tempore to preside, South Carolina law

T he Honorable Joseph W. Owens
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March 27, 201 4
makes a c lear distinction. South Carolina Code § 5-7-190 specifies that a mayor pro tempore should be elected for a term of not more than two years and shall act as mayor " during the absence or disability of t he mayor" and is a uthorized to serve as mayor only when there is a vacancy until a successor mayor is elected. S.C. Code § 5-7-1 90 ( 1976 Code, as amended) (emphasis added). T his State's Supre me Court has uphe ld that a mayor pro tempore may only serve and vote on beha lf of a mayor during the absence or disability of the mayor. See, e.g. Spa1tan burg Sanitary Sewer Dist. v. C ity of S partanburg, 283 S.C. 67, 32 1 S.E.2d 25 8 ( 1984). Moreover, South Carolina Code § 5-7-200 spec ifies the grounds fo r fo rfe iture of the o ffice of a mayor or a councilman under one of three circumstances: I) if he lacks at any time during his tenn of o ffice any qua lification fo r the office prescribed by the general law and the Constitution; 2) ifhe vio lates a ny express prohibition of Chapters I to 17 [of Title 5]; or 3) if he is conv icted of a crim e involving moral turpitude. Furthe rmo re, the C ity of West Columbia 's Ordinance 1-2-5 a lso directs that the mayor pro tempore to act as mayor "during the absence or di sability o f the mayor, or in the case of a vacancy of mayor." City of West Columbia, S.C, Ordin. l-2-5(b). As mayor, if you have neithe r forfeited the offi ce, nor are absent or disabled, then the mayor pro tempore would not have authority (e ither by statute o r ordinance) to take over a ny of your powers and duties. Generally, the purpose of ordinances passed by a c ity council will be presumed to be constitutional as opposed to unconstitutiona l. C ity of Darlin gton v. Stanley, 239 S.C. 139, 122 S.E.2d 207 (1961). In determining whether a local ordinance is valid, it must pass a two-part test. T he first prong of the test is to determine if the munic ipality was authori zed to adopt the ordinance. The second prong is if the munic ipa lity had the power to adopt the ordinance whether it is cons istent with the South Caro lina Constitution a nd laws. Dene ne v. C itv of Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002) (citing Bu!!sv's v. City of My1t le Beach, 340 S.C. 87, 530 S.E.2d 890 (2000)). While a mu nic ipal counc il may attempt to pass an ordinance, no such ordinance may vio late state law. Conclusion: The refore, this O ffice believes a court will find w ithout the absence or d isability of a city's mayo r a ny ordinance that places a mayor pro tempore instead of a mayor as the presiding officer at city counc il meetings vio lates South Carolina Code § 5-7-1 90. However, this Office is only issuing a lega l opinion based on the current law at this time. Until a court or the legis lature spec ifica lly add resses the issues presented in your le tter, this is only an opinion on how this Office believes a coUtt would interpret the law in the matter. If it is later dete rmined otherw ise or if you have any additiona l questions or issues, please let us know. Sincerely,

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Anita S. Fair
Ass istant Attorney General
REVI EWED AN D APPRO VED BY:

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