Could a South Carolina town council remove one of its own members from a meeting?

Plain-English summary

The Municipal Association asked the AG to reconsider an April 2016 opinion saying Irmo's town council could not remove one of its members from a meeting as discipline. In May 2016, the AG modified that answer. It predicted that a court would recognize removal from a meeting as part of a municipal council's inherent legislative power to discipline its members.

The AG did not find an independent disciplinary power in the cited provisions allowing councils to set meeting rules or permitting removal of a person who seriously disrupts a meeting. It treated those provisions as support for an already inherent legislative power. The opinion urged great caution: council members' First Amendment rights could be infringed if the power were abused, and the boundaries of the inherent power remained undefined.

Currency note

This opinion was issued in 2016. 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: Did the AG still say a council lacked power to remove one of its members?
A: No. The May opinion expressly modified the April opinion and concluded that removal could fall within a council's inherent legislative power.

Q: Did the meeting rules statute itself create that power?
A: The AG said no substantive right to discipline members arose from the cited meeting rules and open-meetings provisions. It regarded them as supporting the existence of inherent power.

Q: Could a council remove a member because it disagreed with the member's speech?
A: The opinion warned that councils had to avoid infringing First Amendment rights and distinguish actual disruption from protected speech. It did not set out a full procedure for making that determination.

Background and statutory framework

The AG reconsidered its earlier reliance on a school board discipline opinion. It distinguished legislative councils and drew on the Fourth Circuit's treatment of internal legislative discipline in Whitener. The opinion also discussed the council's rule-setting authority and a Freedom of Information Act provision concerning willful disruption. It concluded that legislative guidance on the scope of removal power would be beneficial.

Citations and references

• The conclusion stated: “our opinion dated April 20, 2016 is modified.”
• It said removal should be exercised “with great caution to prevent abuse and a potential infringement of one’s First Amendment rights.”
• Source: South Carolina Attorney General, May 31, 2016.

Official title

On authority of a municipal council to remove a person from a meeting.

Requester

Ms. Miriam Hair, Executive Director, Municipal Association of South Carolina.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-31-2016/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/06/Hair-Miriam.-OS-10044-FINAL-Opinion-5-31-2016-01019374xD2C78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

May 31, 2016

Ms. Miriam Hair

Executive Director

Municipal Association of South Carolina
Post Office Box 12109

Columbia, South Carolina 29211

Dear Ms: Hair,

You have asked this Office to reconsider an opinion, dated April 20, 2016, in which we concluded that “Inmo’s town council lacks the authority to discipline one of its members by removing such an individual from a meeting.” Op. S.C. Att’y Gen., 2016 WL 2607250 (April 20, 2016). You note that the Municipal Association of South Carolina has taught for many years that municipal councils are empowered by state law to discipline their members. In support of your position, you cite S.C. Code Ann. § 5-7-250(b) (2004) which allows municipal councils to determine their own rules and order of business as well as a provision of the South Carolina Freedom of Information Act, 8.C. Code Ann. § 30-4-70(d) (2007), providing that “[tJ]his chapter does not prohibit the removal of any person who willfully disrupts a mecting to the extent that orderly conduct of the meeting is seriously compromised.” Our analysis follows.

Law / Analysis

We first note that our April 20, 2016 opinion relied in large part on a prior opinion of this Office dated February 11, 2016. In our February 11, 2016 opinion, we were asked to address whether a county board of education could enter into executive session to discipline one of its own members. Op. S.C. Att’y Gen., 2016 WL 963697 (Feb. 11, 2016). In regards to whether a county board of education could discipline one of its own members, we examined the express and inherent powers granted to county boards of education to conclude that “without clarification from the legislature, we do not believe that the Board can exercise general disciplinary powers as an inherent power upon review of the express powers granted to it.” Id. However, we distinguished our belief that “a board of education is not powerless to express its disapproval of actions of a member in violation of the board’s standards, rules, and bylaws.” Id.

The April 20, 2016 opinion you have asked us to reconsider followed the same analysis as our February 11, 2016 opinion by addressing whether either the express or inherent powers provided to municipal councils would likely permit the Irmo Town Council to discipline one of dts members by removing him or her from a council meeting. Op. S.C. Att'y Gen., 2016 WL 2607250 (April 20, 2016). The.opinion relied on the conclusion reached in our February 11, 2016 opinion, stating that “county boards of education, which like municipal corporations are creatures of statute, could not exercise disciplinary authority because ‘any inherent authority of

RehiBERT C. DENNIS BUILDING + PosT OFFICE Box 11549 + CoLumBiA,SC 29211-1549 ¢ TELEPHONE 803-734-3970 © FACSIMILE 803-253-6283

Ms. Miriam Hair
Page 2
May 31, 2016

the Board must be derived from or be necessary in carrying out its express power.’” Id. (citing Op. S.C. At’y Gen., 2016 WL 963697 (February 11, 2016)). Therefore, applying this conclusion, our April 20, 2016 opinion determined that no express or inherent power granted the Town Council of Irmo the disciplinary authority to dismiss a fellow member from a meeting. Id.

It is important to point out that our February 11, 2016 opinion distinguished that as part of their legislative powers, it has been recognized throughout history that legislative bodies have the inherent authority to discipline their own members. Op. S.C. Att’y Gen., 2016 WL 963697 (February 11, 2016). Looking to Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997), decided by the Fourth Circuit Court of Appeals, and prior opinions of this Office, we explained as follows:

Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997) is relevant when answering this question being that the Fourth Circuit Court of Appeals specifically addressed the power to disciple one's own member by censure and stripping the member of his committee assignments for a period of one year due to use of abusive language. We note that the public body under scrutiny in the case was the Loudoun County, Virginia Board of Supervisors (“Board of Supervisors”). Id. at 741. In counties in Virginia adopting what is known as the County Board Form of Government, the powers and duties of the county as body politic and corporate are vested in a board of county supervisors. See V.A. Code Ann. § 15.2-402. Thus, the Loudoun County Board of Supervisors discussed in Whitener appears to be akin to a county council operating in our state.

The Whitener Court affirmed the internal disciplinary measures taken by the Board of Supervisors, characterizing them as “legislative in nature.” Id. at 744, It noted the authority and accompanying legislative immunity from exercising such authority “‘has [its] taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.”’ Id. at 743 (quoting Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct 783, 786 (1951)) (modification in Whitener). After highlighting that the United States Constitution “enumerates for Congress the power, long asserted by Parliament, to ‘punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member,”’ the Court recognized “Americans at the founding and after understood the power to punish members as a legislative power inherent even in ‘the humblest assembly of men” and, that it is with this power that “institutional integrity” is preserved. Id. at 744 (quoting U.S. Const. art. I § 5, cl. 2; Joseph Story, Commentaries on the Constitution of the United States § 419; Powell v. McCormack, 395 U.S. 486, 548, 89 S.Ct. 1944 (1969)). Accordingly, the court concluded that the Board of Supervisors was authorized - acting in its legislative capacity - when it voted to discipline one of its own members and was protected by legislative immunity when doing so. Id. at 744.

In regards to legislative authority or capacity, prior opinions of this Office have stated that “as a general rule, the legislature has the power to investigate any subject with respect to which it may desire information in aid of the proper

Ms. Miriam Hair
Page 3
May 31, 2016

discharge of its function to make or unmake written laws, or to perform any other act delegated to it.” Op. §.C. Att'y Gen., 1986 WL 191969 (Jan. 14, 1986) (citing 81A CJS. States § 56). “In other words, it is a general principle of law that ‘the power to investigate is an essential corollary to the power to legislate.”’ Id. Consistent with the Whitener decision, we have pointed out that “this rule is also applicable to local legislative bodies such as city or county council which have been given extensive authority under Article VIII of the Constitution and the Home Rule Acts.” Id. (citing § 4-9-10 et seq.; § 5-7-10 et_seq.: 4 McQuillin, Municipal Corporations, § 13.05).

Op. S.C. Att’y Gen,, 2016 WL 963697 (February 11, 2016).

In review of the authorities quoted above, it appears the power of a legislative body to discipline one of its members would be considered an inherent “legislative power.” And, as we have expressed in prior opinions of this Office, these legislative powers are applicable to local legislative bodies such as a municipal council. Accordingly, as a legislative body, we believe it is likely a court would find a municipal council has the authority to discipline one of its members as an inherent legislative power. It follows that this inherent authority could include removal of a member from a council meeting.

As noted in Whitener, this authority, with its “taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries” “is the primary power by which legislative bodies preserve their ‘institutional integrity’ without compromising the principle that citizens may choose their representatives.” Whitener_v. McWatters, 112 F.3d 740, 744, (4th Cir. 1997) (citations omitted). Thus, as history reveals, the source of the power to discipline is inherent from the power to legislate. While we believe no substantive right to discipline one’s members has been created by the authorities you cite — S.C. Code Ann. § 5-7-250(b) permitting council members to determine its own rules and order of business as well as a provision of the South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-70(d), providing that “[t]his chapter does not prohibit the removal of any person who willfully disrupts a meeting to the extent that orderly conduct of the meeting is seriously compromised” — such provisions do provide support that the inherent power to discipline exists. In fact, as to a legislative body’s rule making authority, Joseph Story’s Commentaries on the Constitution’ of the United States provides as follows: “the power to make rules would be nugatory, unless it was coupled with a power to publish for disorderly behavior, or disobedience to those rules.” Joseph Story, Commentaries on the Constitution of the United States § 419. .

While we are of the opinion that a municipal council possesses inherent authority to discipline one of its members by removal from a meeting, we also emphasize the need for considerable caution. There is a fine line between First Amendment rights of free speech and disruption of a meeting. The members of council must thus be very careful to avoid infringing upon First Amendment rights. See Norse y. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010) (finding that attendee of city council meeting has a First Amendment right to be free from view point discrimination; the person must actually be disruptive to warrant ejectment). Thus, council toust be vigilant in not abusing its power. Additionally, we believe legislative guidance as to the extent of such authority would be beneficial to ensure the power is appropriately used.

Ms. Miriam Hair
Page 4
May 31, 2016

Conclusion

Based upon the above analysis, our opinion dated April 20, 2016 is modified. We believe a municipal council does possess the power to discipline one of its own members by removal from a meeting as an inherent legislative power; however, it is also our opinion that such power should be exercised with great caution to prevent abuse and a potential infringement of one’s First Amendment rights. Furthermore, as the inherent power of a municipal council to discipline one of its own members is far from defined, we believe legislative guidance as to the extent of such power would be beneficial.

Very truly yours,

An Maine Grasmere
Anne Marie Crosswell
Assistant Attorney General

REVIEWED AND APPROVED BY:
Robert D. Cook
Solicitor General