How could an elected South Carolina fire district raise its millage or combine with another district in the same county?

Plain-English summary

In 2019, a senator asked whether a fire district with elected commissioners could impose a levy above its normal millage and whether it could merge with a fire district 15 miles away in the same county. The Attorney General said the general authority to set service rates and charges did not itself authorize exceeding a lawful millage ceiling. The opinion instead identified specific statutory procedures for increasing millage, including referendum and county approval routes, with different durations and conditions.

The office also said two special purpose districts within the same county could achieve what the requester called a merger by dissolving one district and designating a successor service provider, or by consolidating the districts. It described petitions, voter approval, county proceedings, and successor obligations under the applicable routes. The opinion did not analyze whether distance or noncontiguous borders affected either route.

Currency note

This opinion was issued in 2019. 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 a fire district use its power to adjust service charges to exceed its millage limit?
A: The AG said the general rates and charges provision did not appear to authorize exceeding a legally established millage maximum.

Q: Did electing a district's commissioners rule out a millage increase?
A: No. The opinion reaffirmed that elected districts could use the specific statutory procedures it identified, including referendum and county approval mechanisms where applicable.

Q: What routes did the AG identify for combining two fire districts in one county?
A: It identified dissolution of one district with another as successor provider, or consolidation under the county process. It did not analyze the effect of distance or noncontiguous borders.

Q: Was county approval alone enough to consolidate the districts?
A: The opinion described a county process that included a public hearing and a finding about whether the districts should be consolidated. The dissolution route involved separate petition, successor-provider, and referendum requirements.

Background and statutory framework

The first question distinguished district service charges from taxes measured in millage. The second concerned districts created under the older special purpose district framework; the opinion described statutory limits tied to the districts' creation and location within one county.

Citations and references

• S.C. Code Ann. § 6-11-140: general authority to set rates and charges, which the opinion distinguished from millage authority.
• S.C. Code Ann. §§ 6-1-320, 6-11-271, 6-11-273 or 6-11-275: procedures the opinion identified for increasing millage.
• S.C. Code Ann. §§ 6-11-2010 to -2150: dissolution route discussed in the opinion.

Official title

On how a special purpose fire district may raise its millage rate and how two special purpose districts may be merged.

Requester

The Honorable Glenn G. Reese, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-3-2019/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/05/Reese-G-OS-10347-FINAL-Opinion-5-3-2019-01960699xD2C78-01962257xD2C78.pdf

Original opinion text

Alan Wilson
Attorney General

May 03,2019
The Honorable Glenn 0. Reese

Member
South Carolina Senate
District No. 11
PO Box 142

Columbia, SC 29202

Dear Senator Reese:

Attomey General Alan Wilson has referred your letter to the Opinions section. Your letter asks the following:

1. Can an SPD Fire Department with elected commissioners which has a
   taxing district, such as Mayo Fire Department, charge a levy or fee above their normal millage or taxing authority, as under Title 6 Local Government Provisions applicable to SPD's and other political sub-divisions: As under Chapter 11 ,Section 6-11-140?

2. Can an SPD Fire Department such as Mayo Fire Department, which has a
   normal taxing district, merge with another SPD Fire Department half-way across the county, where the districts are 15 miles apart and not contiguous, in order to get a higher tax millage rate? Law/Analvsis

I.

How can a special purpose district with elected commissioners charge a levy or fee above their normal millage or taxing authority?

This Office's recent February 27, 2019 opinion addressed how a special purpose district may raise its millage rate above its normal millage or taxing authority. Op. S.C. Att'v Gen.. 2019 WL 1644925,4-6 (February 27, 2019). However,the request letter asks a more specific question regarding how special purpose districts with elected commissioners can raise its millage rate as under S.C. Code Ann. § 6-11-140. In relevant part. Section 6-11-140 states that a board of commissioners of a fire protection district "shall establish and maintain just and equitable rates, rentals or charges for the use of and the service rendered ... and may change or adjust such rates or charges from time to time." This statute broadly requires special purpose districts to establish

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The Honorable Glenn G. Reese
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May 03, 2019

"just and equitable rates" and the language regarding the authority to adjust rates thereunder does not appear to grant authority to exceed a legally established maximum millage rate. The more specific statutes addressed in this Office's prior opinions summarize the methods by which a special purpose district may raise its millage rates above its normal rate limit. Atlas Food Svs. & Servs.. Inc. v. Crane Nat. Vendors Div. of Unidvnamics Corp.. 319 S.C. 556, 558, 462 S.E.2d 858, 859 (1995) ("The general rule of statutory construction is that a

specific statute prevails over a more general one."). This Office's February 22, 1990 opinion to Representative Ronald P. Townsend addressed whether the Anderson County Fire Protection Commission could increase its millage without its legislative delegation's consent as follows: The two methods of which we are aware, by which millage may be increased for the benefit of a special purpose district, are in Sections 6-1 1-273 and 6-1 1-275 of

the South Carolina Code of Laws (1988 Cum. Supp.), as cited in the enclosed opinion. Certain actions by Anderson County Council would be required if one of these statutes should be followed . . . As noted in the enclosed opinion, Section 6-11-275 provides a mechanism for a one-year increase in a millage limitation of a special purpose district by written

approval

of the county's governing body (county council).

Following this

mechanism, a referendum would not be required. Section 6-11-273 provides a

procedure by which a referendum may be held to increase millage limitations on a basis other than one year at a time. Op. S.C. Att'v Gen.. 1990 WL 59921 1 (February 22, 1990). Subsequently, the General Assembly enacted S.C. Code Ann. § 6-11-271 with the stated purpose

of "CLARIFYfING]

THE

AUTHORITY

OF

CERTAIN

SPECIAL

PURPOSE

DISTRICTS TO LEVY MILLAGE AND PROVIDE GOVERNMENTAL SERVICES." 1998 Act No. 397, § 4. This Office's February 12, 2003 opinion to Patrick Murray, Fire Chief for the

Cherokee Spring Fire District, explained how a fire district with elected members could raise its

millage rates and found Section 6-1 1-271 applicable as follows: S.C. Code Ann. §§ 6-11-271, 6-11-273 and 6-11-275 provide additional authority for special purpose districts to raise millage rates. As the Cherokee Springs Fire

District) was created by legislative act in 1965 and you advise that the District's board of fire control is now elected rather than appointed, Section 6-11-271 applies to the district based on the following provisions: (A) For purposes of this section, "special purpose district" means any special purpose district or public service authority, however

named, created prior to March 7, 1973, by or pursuant to an act of the General Assembly of this State.

The Honorable Glenn G. Reese
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May 03, 2019

(D) Notwithstanding any other provision of law, any special purpose district within which taxes are authorized to be levied for maintenance and operation in accordance with the provisions of

subsections (B) or (C) of this section, or otherwise, may request the commissioners of election of the county in which the special purpose district is located to conduct a referendum to propose a modification in the tax millage of the district. Upon receipt of such request, the commissioners of election shall schedule and conduct the requested referendum on a date specified by the governing body of the district. If approved by referendum, such modification in tax millage shall remain effective until changed in a manner provided by law. (E)(1) All special purpose districts located wholly within a single county and within which taxes are authorized to be levied for maintenance and operation in accordance with the provisions of subsections (B) or (C) of this section, or otherwise, are authorized

to modify their respective millage limitations, provided the same is first approved by the governing body of the district and by the governing body of the county in which the district is located by resolutions duly adopted. Any increase in millage effectuated

pursuant to this subsection is effective for only one year. Similar to Section 6-1 1-27 1(D), Section 6-1 1-273 states that

Notwithstanding any other provision of law, any special purpose

district created by an act of the General Assembly which is authorized to levy taxes for the operation of the district may request the commissioners of election of the county in which the district is located to conduct a referendum to propose a change in the tax millage of the district. Upon receipt of such request the

commissioners

of

election

shall

schedule

and

conduct

the

requested referendum on a date specified by the governing body of the district. If a majority of the qualified electors of the district voting in the referendum vote in favor of the proposed tax millage

change, the governing body of the district shall by resolution adopt the new millage rate which shall thereupon have the full force and effect of law. Finally, Section 6-1 1-275 provides that

The Honorable Glenn G. Reese
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May 03, 2019

All special purpose districts totally located within a county, which were in existence prior to March 7, 1973, and which have the statutory authority to annually levy taxes for maintenance and are authorized to increase their respective millage limitations upon the written approval of the governing body of the operation

county in which they are located. Any increase above the statutory limitation must be approved each year. Any such millage increase shall be levied and collected by the appropriate county auditor and county treasurer.

Op. S.C. Att'v Gen.. 2003 WL 21040134, at 2-3 (February 12, 2003) (emphasis added). While subsections (B) or (C) are limited to "those special purpose districts the governing bodies of which are not elected," the emphasized language demonstrates that subsections (D) and (E) are

also applicable to special purpose districts with elected commissioners. Id Finally, the opinion examined how a special purpose district could increase its millage rate based on increases in the consumer price index according to S.C. Code Ann. § 6-1-320. Id The opinion concluded by stating, "I have been able to locate no other authority which would allow a special purpose district to increase its millage rate outside of Sections 6-1-320, 6-11-271, 6-11-273 and 6-11 275." Id. This Office reaffirms its conclusion that a special purpose district whose board members are elected may increase its millage rate according to the procedures established in S.C. Code Ann. §§ 6-1-320, 6-1 1-271, 6-1 1-273 or 6-1 1-275. II.

Can a special purpose district fire department merge with another special purpose district fire department half-way across the county?

It is this Office's opinion that a special purpose district may be merged with another special purpose district within the same county by either of two methods codified in Chapter 1 1 of Title 6 of the South Carolina Code of Laws; dissolution or consolidation. This Office's February 19, 2003 opinion to Representative Ralph Davenport addressed a similar issue regarding the dissolution of one water district and placing it under the control of a separate water district within the same county. Op. S.C. Att'v Gen.. 2003 WL 21040130 (February 19, 2003). The opinion concluded that this could be accomplished by the statutory procedures of (1) dissolving one special purpose district and having another act as its successor provider, or (2) consolidating two special purpose districts within the same county. Id This opinion will explain how these procedures can result in what may be described as a merger of two special purpose districts.

In 1998, the General Assembly enacted Act No. 397, § 3 which added Article 15 to Chapter 1 1 of Title 6 of the South Carolina Code with the stated purpose of providing a procedure for the dissolution of a special purpose district. See S.C. Code Ann. §§ 6-11-2010 to
-2150. These provisions allow a special purpose district created by an Act of the General Assembly prior to March 7, 1973 to be dissolved "upon a two-thirds vote of the qualified electors of the district voting in the referendum." S.C. Code Ann. § 6-1 1-2020. First, however, a

The Honorable Glenn G. Reese
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May 03, 2019

petition must gain the signatures of "at least forty percent of the qualified electors of the district" and then be forwarded to each political subdivision that the petition names as a "successor provider" before such a referendum is authorized. S.C. Code Ann. §§ 6-11-2060, -2070. The successor providers agree "to become responsible for the assets and liabilities of the district and to provide the service or services set forth in the petition upon the dissolution of the district." S.C. Code Ann. § 6-11-2030. Each successor provider, by resolution or ordinance, must state that "the political subdivision is authorized by law to provide such service or services" and "is

authorized to and shall ... issue such obligations as are necessary to fully pay or defease all outstanding general obligation bonds, revenue bonds, lease-purchase obligations, and other obligations of the district." Id.

Next, Article 3 of Title 6, Chapter 1 1 establishes a procedure by which the governing body of a county may enlarge, diminish, or consolidate special purpose districts within its jurisdiction. S.C. Code Ann. §§ 6-11-410 et. seq. Similar to dissolution above, consolidation is limited to those districts "created by act of the General Assembly prior to March 7, 1973 ... ."

S.C. Code Ann. §§6-1 1-4 10(a). The governing body of a county may initiate this procedure on its own motion or "upon the petition of the commissions of the special purpose districts to be affected." S.C. Code Ann. § 6-11-430.

The county board must then order a public hearing be

held to determine "whether and to what extent a special purpose district shall be enlarged, diminished or consolidated." Id After this public hearing, the county board shall "make a finding as to whether and to what extent the boundaries of the special purpose district shall be changed or whether the special purpose districts shall be consolidated." S.C. Code Ann. § 6-11

460. Accordingly, it is this Office's opinion that a special purpose district may accomplish what
     could be described as a merger of two special purpose districts by either (1) dissolving one special purpose district and having another act as its successor provider, or (2) consolidating two special purpose districts within the same county. See S.C. Code Ann. §§ 6-11-2010 to -2150; S.C. Code Ann. §§ 6-1 1-410 et. seq.

Conclusion

As discussed more fully above, it is this Office's opinion that a court would likely find a special purpose district with elected board members that seeks to raise its millage rate above its

normal millage or taxing authority must do so in accordance with the procedures established in S.C. Code Ann. §§ 6-1-320, 6-11-271, 6-11-273 or 6-11-275. Further, a special purpose district

may accomplish what could be described as a merger of two special purpose districts by either

(1) dissolving one special purpose district and having another act as its successor provider, or (2) consolidating two special purpose districts within the same county. See S.C. Code Ann. § § 6-112010 to -2150; S.C. Code Ann. §§ 6-11-410 et. seq.

The Honorable Glenn G. Reese
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May 03,2019

Sincerely,
/I)

Matthew Houck
Assistant Attorney General
REVIEWED AND APPROVED BY:
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Robert D. Cook
Solicitor General

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