Could Surfside Beach council override its town administrator on department-head decisions?

Plain-English summary

The Attorney General predicted that Surfside Beach's town council retained authority over department-head appointment and removal under its council form of government and town ordinance. The administrator could reprimand a department head, but the ordinance required council approval to remove one.

The opinion drew a different line for day-to-day personnel administration. Because the town ordinance delegated personnel-policy administration to the administrator, the office predicted that council could not directly instruct the administrator on those delegated tasks unless the ordinance was changed. Its analysis depended on the cited town ordinance and its consistency with state law.

Currency note

This opinion was issued in 2010. 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 administrator fire a department head without council approval? A: The opinion said no. Under the cited town ordinance, the administrator could remove a department head only with council approval.

Q: Could the administrator reprimand a department head?
A: Yes. The opinion said the town ordinance gave the administrator that authority.

Q: Could council directly manage personnel policies already delegated to the administrator? A: The opinion predicted a court would say no under the ordinance as written, while recognizing the town could change that ordinance.

Background and statutory framework

Surfside Beach's mayor asked how council and the town administrator divided authority over department heads and personnel policy. The opinion applied the state's council-form statutes and the town's ordinance delegating specified administrative duties.

Citations and references

The original text below quotes S.C. Code § 5-11-40 and discusses the town's Sec. 2-113 personnel ordinance.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-7-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Deaton-K.A.-5-7-2010-01203905xD2C78.pdf

Original opinion text

The Honorable K. Allen Deaton, 2010 WL 2320802(2010)

2010 WL 2320802(S.C.A.G.)

Office of the Attorney General
State of South Carolina

May 7, 2010
*1 The Honorable K, Allen Deaton

Mayor
Surfside Beach

115 US Highway 17 North
Surfside Beach, South Carolina 29575-6034

Dear Mayor Deaton:

We received your letter requesting an opinion of this Office concerning the council form of government and the Town Administrator. You asked "whether the council has authority over the town administrator to hire and fire department heads if the town administrator chose to reprimand a department head." You also asked whether "the council has authority to directly instruct the administrator on administering certain personnel policies." This opinion will address prior opinions, relevant statutes and caselaw to clarify the duties of the council and administrator in a council form of government.

Law/Analysis

South Carolina Code § 5-5-10 lists the various forms of mvmicipal government in this State. The Town ofSurfside Beach has complied with S.C. Code § 5-5-10(b) and established a council form of government. Under the council form of government,"there shall be a municipal council composed of five, seven, or nine members including the mayor." S.C. Code § 5-11-20. "All legislative and administrative powers of the municipality and the determination of all matters of policy shall be vested in the municipal council. Each member of the council, including the mayor, shall have one vote." S.C. Code § 5-11-30.

S.C. Code § 5-11-40 explains the various powers of the council in a council form of government:

(a) The council may establish municipal departments, offices or agencies ... and may prescribe the functions of all departments, offices, and agencies. The council may hire an administrator to assist the council. (b) All departments, offices and agencies may be administered by an officer appointed by and subject to the direction and supervision of the council.

(c)The municipal council shall adopt annually, prior to the beginning of the fiscal year, operating and capital budgets for the operation ofcity revenue including taxes necessary to meet the financial requirements ofthe budgets adopted

S.C. Code § 5-11-40(emphasis added).

As permitted by S.C. Code § 5-11-40(a), the Town of Surfside Beach adopted by ordinance to appoint and hire a Town Administrator.

Section 2-113 of the Town Code of Ordinances describes the authority and duties of the Administrator as follows: (3)appoint and remove department heads for cause with approval of town council;

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The Honorable K. Allen Deaton, 2010 WL 2320802 (2010)

(4) appoint and remove other town employees for cause, after consulting employee's department head;

(5) Administer personnel policies, classification, compensation and evaluation of all town employees . . .

(6) Prepare the budget annually, submit it to the town council . . .

(7) Prepare and submit to the town council at the end of each fiscal year a complete annual report on the finances and

administrative activities . . .

(11) Perform such other duties as may be required of him by the town council.

*2 Surfside Beach's Town Code of Ordinances. Sec. 2-113 (emphasis added).

As indicated in your letter to this Office, the duties and responsibilities given to the administrator are similar to the duties given to the manager in the council-manager form of government. The council-manager form of government is described

in Title 5, Chapter 13 of the South Carolina Code of Laws of 1976.

The responsibilities of the manager in a council-manager form of government are explained in S.C. Code § 5-13-90 as follows: The manager shall be the chief executive officer and head of the administrative branch of the municipal government. He shall be responsible to the municipal council for the proper administration of all affairs of the municipality and to that

end, subject to the provisions of this chapter, he shall:
(1) Appoint and . . . remove any appointive officer or employee of the municipality . . . except as otherwise provided . . .

(2) Prepare the budget annually, submit it to the municipal council . .

(3) Prepare and submit to the municipal council at the end of each fiscal year a complete annual report on the finances and administrative activities . . .

(4) Keep the municipal council advised of the financial condition and future needs of the municipality and make such

recommendations . . .

(5) Perform such other duties as may be prescribed by law or required of him by the municipal council . . .

The Town Administrator of Surfside Beach contacted the McGougan Law Firm to advise him on the respective duties and scope of authority of the elected Town Council and the Town Administrator in relation to staff discipline and other personnel issues. The law firm concluded that the "Town Council does not have the authority to initiate any

disciplinary action, nor to alter a disciplinary decision of the administrator amounting to less than removal from office of a department head. Town Council does not have the unfettered authority to review individual personnel file data.

,, l

An opinion of this Office dated January 20, 2010 regarding the duties of a town administrator was written at your request. We stated as follows:

[A]s we concluded in a 1988 opinion of this Office, the duties, oath, salary, and tenure of a town administrator is left to the discretion of the council. Op. S.C. Attv. Gen.. October 18, 1988. See also. Op. S.C. Attv. Gen.. March 30, 1998. Therefore, we are of the opinion that so long as the duties proscribed by the council do not conflict with State law, they are permissible.

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The Honorable K. Allen Deaton, 2010 WL 2320802 (2010)

In an opinion of this Office dated March 30, 1998, we stated as follows:
[SJtate law merely provides that council may hire an administrator to assist council. It does not set forth the powers and duties of the administrator. Therefore, determination of such duties is left to the discretion of council. Op. S.C. Attv. Gen.. October 18, 1988. . . .

The powers of the city administrator under the council form of government are determined by council and the city

administrator operates pursuant to council's discretion. The city administrator's powers and duties are not derived from state law but from council's determination.

*3 Therefore, to determine the town administrator's role, one must reference the Town Code of Ordinances above in

which the Surfside Beach Town Council describes the authority and duties of the administrator.

In the October 18, 1988 opinion, this Office was answering a question of dual office holding. However, in doing so, this

Office discussed the role of an administrator in a council form of government as follows: Section 5-1 1-40 of the Code, in subsection (a) provides that **[t]he council may hire an administrator to assist the council." No duties, qualifications, oath, salary, or tenure are provided for by statute and thus are left to the discretion of Lexington Town Council. Because the Town Council is vested with all legislative and administrative powers needed to operate town government and the determination of policy is vested in council, it would appear that all of the sovereign power is

most probably being exercised by council instead of the administrator. Thus, it must be concluded that the administrator contemplated by Section 5-1 l-40(a) of the Code is most probably not an office for dual office holding purposes.

Similar to the Lexington Town Council, the Surfside Beach Town Council has the discretion to determine the administrator's duties, so long as the delegation of responsibilities does not conflict with any other statute.

Conclusion

The council form of government is designed to give the municipal council significant authority. S.C. Code § 5-1 1- 10, et seq. Consistent with other opinions of this Office, the Surfside Beach Town Council is able to determine the duties of

the administrator. * The fact that the duties delegated to the administrator are similar to the duties given the manager 1

in the council-manager form of government is immaterial.

Surfside Beach's Town Code of Ordinances, Sec. 2-113 will

control the authority and duties of the administrator so long as the powers given do not conflict with State law. Such

responsibilities include appointing and removing department heads and administering personnel policies and evaluation of all town employees. The ordinance is not in conflict with state law so long as it is read in light of S.C. Code §5-11 -40(b) which expressly states that "[a]ll departments, offices and agencies may be administered by an officer appointed by and

subject to the direction and supervision of the council." S.C. Code § 5-1 1 -40(b) (emphasis added). A court would likely find that the town council has authority over the town administrator to hire and fire department heads because the town administrator can only "appoint and remove department heads with the approval of town

council." Town Code of Ordinances, Sec. 2-1 13(3) (emphasis added). Under the ordinance, the town administrator has the authority to reprimand a department head. However, the town administrator may not remove the department head without the town council's approval.
*4 Although the role of an administrator is to "assist the council," a court would likely find that the council does not have authority to directly instruct the administrator on administering certain personnel policies because, under the Town

Code of Ordinances, Sec. 2-1 13(5), the Town Council has given the administrator the authority to "administer personnel

policies, classification, compensation and evacuation of all town employees." The ordinance does not appear to conflict

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The Honorable K. Allen Deaton, 2010 WL 2320802 (2010)

with State law; therefore, unless the ordinance is changed, the administrator may act within the authority given in the town ordinance. Sincerely, Henry McMaster Attorney General By: Leigha Blackwell

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Deputy Attorney General

Footnotes
Letter regarding Staff Personnel Issues, from Michael T. Smith of The McGougan Law Firm to Ed Booth, Town

1

Administrator, dated January 5, 2010.
2

See. Ops, S.C. Attv. Gen.. March 30, 1998; October 18, 1988.

3

One should note that although the duties given to the town administrator in Surfside Beach's Town Code of Ordinances, Sec. 2-113 are similar to the duties given to the manager in S.C. Code § 5-13-90, the town administrator can only "appoint and remove department heads for cause with approval of town council." The manager in a council-manager form of government may "appoint and . . . remove any appointive officer or employee" unless otherwise prohibited by statute or delegation of authority.

2010 WL 2320802 (S.CA.G.)

End of Document

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