Could Spartanburg County’s legislative delegation or county council take over its transportation committee and spend county road funds?

Plain-English summary

A representative posed seven questions about Spartanburg County’s transportation committee and the county share of gasoline-tax “C” road funds. The Assistant AG said the legislative delegation could remove individual committee members or replace the entire membership because the governing statute did not fix their terms or specify a different removal process. He recognized a limit for unconstitutional reasons for removal.

The letter drew a firm distinction between appointing committee members and spending the funds. It read Section 12-28-2740 as giving expenditure authority to the transportation committee or the Department of Transportation, not county council or the legislative delegation, even in an emergency. A county council member who also served on the committee would most probably run afoul of the state’s dual-office prohibition. The author said a county employee’s eligibility depended on whether that job itself was a public office; he did not decide particular employees’ status without their job descriptions.

Currency note

This opinion was issued in 1997. 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 the delegation replace the committee’s members? A: The author said it could remove individual members or the whole membership at its pleasure, subject to constitutional limits, because the statute fixed no term or separate removal procedure.

Q: Could county council spend the road funds instead? A: No. The opinion read the statute to allow expenditure by the county transportation committee or the state Department of Transportation.

Q: Could the delegation act as the committee during an emergency? A: No. The author found no emergency exception and relied on the Tucker decisions barring legislators from executing the spending program themselves.

Q: Could a county employee serve on the committee? A: Possibly, but the author said an employee who also held a public office would probably face a dual-office problem. He needed a job description to assess a particular position.

Background and statutory framework

Section 12-28-2740 governed committee appointment, administration, and expenditure of the county “C” funds. The letter discussed the two Tucker decisions on legislative delegation control of road spending and State ex rel. Williamson v. Wannamaker on removal power following appointment power. It also summarized the fund’s statutory allocation and permitted road uses as the law stood in 1997.

Citations and references

Statute discussed: Section 12-28-2740. Cases discussed: Tucker v. South Carolina Department of Highways and Public Transportation; State ex rel. Williamson v. Wannamaker.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-13-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97may13davenport.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

May 13, 1997

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The Honorable G. Ralph Davenport, Jr.
Member, House of Representatives
323B Blatt Building
Columbia, South Carolina 29211
Re:

Informal Opinion

Dear Representative Davenport:
Your opinion request has been forwarded to me for reply. Your request raises a number of questions regarding the Spartanburg County Transportation Committee and the county's expenditure of the gasoline tax found under Section 12-28-2740 of the Code. By way of background, in Tucker v. South Carolina Department of Highways and Public Transportation, 309 S.C. 395, 424 S.E.2d 468 (1992) (Tucker I), the Supreme Court found the provisions of Section 12-27-400, which required that a county legislative delegation approve the expenditure of the gasoline tax earmarked as "C" construction funds and allowed the delegation to contract for improvements, to be unconstitutional. The court found these provisions unconstitutional because the legislative delegates are only permitted to exercise legislative power as members of the General Assembly enacting legislation. By constitutional mandate, the legislature may not undertake both to pass laws and to execute them by bestowing upon its own members functions that belong to other branches of government. In addition, action by a legislative delegation pursuant to a complete law cannot qualify as action to enact legislation and is therefore invalid. The General Assembly subsequently amended Section 12-27-400 to require that the county legislative delegation appoint a county transportation committee to oversee the expenditure of "C" funds. The constitutionality of the amended version of Section 12-27400 was upheld by the court in Tucker v. South Carolina Department of Highways and

~~~eosTOFHCE

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

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The Honorable G. Ralph Davenport, Jr.
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May 13. 1997
Public Transportation, 314 S.C. 131, 442 S.E.2d 171 (1994) (Tucker II). Thereafter,
Section 12-27-400 was recodified as Section 12-27-2740 (Supp. 1996).
Question 1

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The Spartanburg County Legislative Delegation is aware of the statutory
authority to create the Spartanburg County Transportation Committee. The situation has
arisen affecting the Spartanburg County Transportation Committee, in that,
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a.
Can individual committee members be removed from
serving?
b.
Can the entire Spartanburg County Transportation
Committee membership be removed?
c.
Can the entire Spartanburg County Transportation
Committee be removed by Act of the Spartanburg County
Legislative Delegation?
d.
What are the legalities in the dissolvement of the
committee to the Delegation members?

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It is a general rule that when the term or tenure of a public officer is not fixed by

law, and the removal is not governed by constitutional or statutory provisions, the power
of removal is incident to the power to appoint. In other words, the appointing power,
where the tenn is not fixed by law, may remove the appointee at pleasure and without
notice or opp011Unity to be heard. State ex rel. Williamson v. Wannamaker, 213 S.C. 1,
48 S.E.2d 60 l ( 1948). However, removal for such unconstitutional reasons as race or
religion may be construed as a restriction on the removal power.
Section 12-28-2740 does not contain any provision setting forth a term of office
for an inuividual appointed to the county transportation committee. Additionally, the
statute contains no provision setting forth the power to remove an individual appointed
to the county transportation committee. Therefore, in accordance with the general rule,
the povvcr of removal is incident to the power to appoint.
In this instance, since the power to remove is incident to the power to appoint,
other than the restriction on removal for unconstitutional reasons, there does not appear
to be any other restriction upon the Legislative Delegation's power to remove members
of the transponation committee. Consequently, the Legislative Delegation may remove

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The Honorable G. Ralph Davenport, Jr.
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May 13, 1997
individual members or the entire membership of the transportation committee, if so
desired. Further, based on the Wannamaker case, the removal is at the pleasure of the
Legislative Delegation and may be done without notice or opportunity to be heard.
Question 2

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2.

If a new Spartanburg County Transportation Committee is created:

a.
Can Spartanburg County Council serve as the
committee or authorities be transferred to Spartanburg County
Council?
b.
Can a county employee such as county administrator,
administrator secretary or assistant county administrator serve
on the Spartanburg County Transportation Committee?
In interpreting any statute, the primary purpose is to ascertain the intent of the
Legislature. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). The words of a statute
must be given their plain and ordinary meaning without resort to subtle or forced
construction to limit or expand the statute's operation. Bryant v. City of Charleston, 295
S.C. 408, 368 S.E.2d 899 (1988). The court must apply the clear and unambiguous terms
of the statute according to their literal meaning. State v. Blackmon, 304 S.C. 270, 403
S.E.2d 660 (1991).
. According to the clear and unambiguous language of the Section 12-28-2740, "C"
funds must be expended by either the county transportation committee or the Department
of Transportation. 1 The statute does not provide for the expenditure of "C" funds by a
body such as the Spartanburg County Council. Among the provisions of the statute which
support this conclusion are the following: The Department of Revenue shall submit the
percentage of the total represented by each county to the Department of Transportation
and to each county transportation committee annually by March thirty-first. Section 12-282740(A)(3); the "C" funds must be approved by and used in furtherance of a countywide

Upon request of a county transportation committee, the Department of
Transportation shall continue to administer the funds allocated to each county. Section
12-28-2740(A)(3). Further, a county transportation committee may elect to have the
Department of Transportation administer the "C" funds. Section 12-28-2740(F). It is my
understanding that the Spartanburg County Transportation Committee has not elected to
have the Department of Transportation administer the "C" funds.

The Honorable G. Ralph Davenport, Jr.
Page 4
May 13. 1997

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transportation plan adopted by a county transportation committee. Section 12-28-2740(B);
County transportation committees may join in approving a regional transportation plan,
and the funds must be used in furtherance of the regional transportation plan. Section 1228-2740( 8): The county transportation committee, at its discretion, may expend up to
seventy-five percent of the "C" construction funds for activities including, but not limited
to, local paving or improving county roads, for street and traffic signs, and for other
paving projects. Section 12-28-2740(C); Before the expenditure of funds by a county
transponation committee, the committee shall adopt specifications for local road projects.
Section l 2-28-2740(F); The applicable source for payment of principle and interest on
bonds is the share of "C" fund revenues available for use by the county transportation
committee. Section 12-28-2740(1).
Since Section 12-28-2740 does not grant a county council the authority to expend
"C" funds. efforts may be made to appoint the county council as a whole or individual
members of the county council to the county transportation committee. This Office has
issued numerous opinions on the propriety of members of a county council serving on a
county transporiation committee. Article XVII, Section IA of the state Constitution
provides that "no person may hold two offices of honor or profit at the same time ... ,"
with exceptions specified for officers in the militia, member of a lawfully and regularly
organized fire department, constable, or a notary public. For this provision to be
contravened, a person concurrently must hold two public offices which have duties
involving an exercise of some portion of the sovereign power of the State. Sanders v.
Belue, 18 S.C. 171, 58 S.E. 762 (1907). Other relevant considerations are whether
statutes. or other such authority, establish the position, prescribe its tenure, duties or
salary, or require qualifications or an oath for the position. State v. Crenshaw, 274 S.C.
475, 266 S.E.2d 61 (1980).
This Office has advised on numerous occasions that members of county councils
would be considered office holders for purposes of dual office holding. See, as examples
of the numerous opinions, Ops. Att'y Gen. dated May 16, 1995, December 7, 1994,
December 20. 1993, and May 15, 1989.
Similarly. this Office has opined on several occasions concerning members of
county transporiation committees in the context of dual office holding. In an opinion
dated Ivlay 16. 1995, it was concluded that
\Vhile it is not entirely free from doubt, it appears that one
who would serve on a County Transportation Committee
would hold an office for dual office holding purposes. Thus,
if a mayor or city or county council member were to serve

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The Honorable G. Ralph Davenport, Jr.
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May 13, 1997
simultaneously on a County Transportation Committee, that
individual would most probably violate the dual office
prohibitions of the state Constitution.
The appointment of a county employee to the county transportation committee may
be proper in certain instances. However, I caution that some county employees are
considered public officers. If a county employee is considered a public officer, there
would be a dual office holding problem if that individual is appointed to the county
transportation committee. A determination of whether a county employee is a public
officer for dual office holding purposes is most effectively accomplished by providing this
Office with a job description of the employee. 2
To summarize the foregoing, it is the opinion of this Office that a county council
does not have the authority under Section 12-28-2740 to expend "C" funds. In addition,
if a county council member were to serve simultaneously on the county transportation
committee, that individual would most probably violate the dual office prohibitions of the
state Constitution. Finally, if a county employee is a public officer, that individual would
most probably violate the dual office prohibitions of the state Constitution if the individual
were to simultaneously serve on the county transportation committee.
Question 3
Is there any emergency provisions that would allow the Spartanburg County
Legislative Delegation to function as the Spartanburg County Transportation
Committee?
Section 12-28-2740 does not contain an emergency provision which would permit
the Legislative Delegation to act as the transportation committee. In fact, the supreme
court's decisions in both Tucker cases makes it clear that the Legislative Delegation itself
cannot expend the "C" funds. The court based its decision on the constitutional mandate
that legislative delegates may not undertake to both pass laws and to execute them by
bestowing upon its own members functions that belong to other branches of government.
Therefore, based on the court's decisions in the Tucker cases and the lack of statutory

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I have been informed that Spartanburg County operates under a CouncilAdministrator form of government. This Office has previously stated that a County
Administrator under this form of government is a public officer for dual office holding
purposes. Op. Atty. Gen. dated May 30, 1979.

The Honorable G. Ralph Davenport, Jr.
Page 6
May 13. 1997
authority, even in an emergency situation, the Legislative Delegation may not act as the
transportation committee.
Question 4

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If a Resolution is introduced by the Spartanburg County Legislative

Delegation creating a new Spartanburg County Transportation Committee
what affect would the present committee have?
The answer to this question is similar to the answer in Question 1. The Legislative
Delegation. subject to certain constitutional limitations, may remove individual members
of the transportation committee or the membership as a whole and replace those members
at its pleasure.
Question 5
Can the Spartanburg County Delegation direct the present Transportation
Committee to direct all funds to a County Council designee for
disbursement?
The answer to this question is based on the analysis found in Question 2.
According to the clear and unambiguous language of the Section 12-28-2740, "C" funds
must be expended by either the county transportation committee or the Department of
Transportation. Thus, the statute would not allow a county council to choose an
individual who would then be responsible for the disbursement of "C" funds.

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Question 6

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In the opinion, is there a way to have the Tucker decision overturned?
The Tucker opinions do not include provisions which spell out a method to have
the opinions overturned. I note that the decision in Tucker (I) is based on the court's
interpretation of the state Constitution. Therefore, it would be difficult to overturn such
a decision.
Question 7
What are the proper procedures for monies collected pursuant to Section 1228-.2740 to be administered by Spartanburg County?

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The Honorable G. Ralph Davenport, Jr.
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May 13, 1997
The procedures for the use of "C" funds are found in Section 12-28-2740.
According to the statute, the proceeds from the gasoline tax must be deposited with the
State Treasurer and expended for the purposes set forth in the section. Section 12-282740(A). The Department of Revenue shall submit the percentage of the total represented
by each county to the· Department of Transportation and to each county transportation
committee annually by March thirty-first. Section 12-28-2740(A)(3). Upon request of
a county transportation committee, the Department of Transportation shall continue to
administer the funds allocated to the county. Id: The funds expended must be approved
by and used in furtherance of a countywide transportation plan adopted by a county
transportation committee. Section 12-28-2740(B). However, a county transportation
committee may expend from the funds allocated under the section an amount not to
exceed one thousand dollars for reasonable administrative expenses directly related to the
activities of the committee. Id.

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At least twenty-five percent of a county's apportionment of "C" funds must be
expended on the state highway system for construction, improvements, and maintenance.
Section 12-28-2740(C). The county transportation committee, at its discretion, may
expend up to seventy-five percent of the "C" construction funds for activities including,
but not limited to local paving or improving county roads, for street and traffic signs, and
for other paving projects. Id. The funds allocated to the county also may be used to issue
county bonds or state highway bonds as provided, pay directly for appropriate highway
projects, including engineering, contracting, and project supervision, and match federal
funds available for appropriate projects. Section 12-28-2740(D). All unexpended "C"
funds allocated to a county remain in the account allocated to the county for the
succeeding fiscal year and must be expended as provided in this section. Section l 2-282740(E).
This letter is an informal opinion only. It has been written by a designated
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 remain
Very truly yours,

ZJ A. l{,j
Paul M. Koch
Assistant Attorney General