Could South Carolina’s Human Affairs Commission be liable for not enforcing a duty the legislature left unfunded?

Plain-English summary

In 2010, the South Carolina Human Affairs Commission asked how it could carry out statutory enforcement duties without an appropriation, staff, or money to do so. The AG predicted that a court would likely treat the specific unfunded obligation as suspended for the current fiscal year. It said the commission “could not likely be held liable for failure to enforce certain statutory duties” if no appropriation covered enforcement costs.

The conclusion was tied to a complete absence of funding for the particular obligation. The AG cited earlier opinions treating unfunded programs as temporarily inoperable, as well as a court's observation that agencies' ability to implement statutes can be limited by available resources. It did not announce that every budget shortfall cancels every agency duty.

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

Did the AG say the Human Affairs Commission had to enforce an unfunded mandate anyway? A: No. For duties whose enforcement costs had no appropriation, it predicted that a court would find the obligations suspended for that fiscal year.

Did lack of an appropriation repeal the underlying law?
A: The opinion described temporary suspension or limits on implementation. It cited an out-of-state decision distinguishing a failure to fund a program from repeal of the program itself.

Could the commission be held liable for doing nothing?
A: The AG said it likely could not be held liable for failing to enforce the specified duties when the legislature had provided no funds to cover enforcement costs. That was a prediction, not a court judgment about a particular claim.

Background and statutory framework

The request described an agency expected to enforce statutory duties without the personnel or money to do so. The AG relied on South Carolina authority that the legislature could suspend a statute's operation where no constitutional bar prevented it, and on its earlier opinions about programs for which the General Assembly made no appropriation. It also noted that state money could not be spent without a lawful appropriation.

Citations and references

The opinion discussed State ex rel. McLeod v. Mills, Grimball v. Beattie, Petition of Strandell, and earlier South Carolina AG opinions about unfunded programs.

Official title

Opinion seeking guidance as to the Human Affairs Commission’s obligation to enforce its statutory duties where there has been no appropriations covering the costs of enforcement by the Commission. Specifically, questioning how to handle an “unfunded mandate” that your agency is expected to continue to enforce without the personnel or money to do so.

Requester

Ralph H. Haile, Legal Counsel, South Carolina Human Affairs Commission

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-16-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/haile-r-h-os-9172-11-16-10-enforce-statutory-duties-no-appropriations.pdf

Original opinion text

HENRY M CM ASTER
ATrORNEY GENERAL

November 16, 2010

Ralph H. Haile, Legal Counsel
South Carolina Human Affairs Commission
Post Office Box 4490
Columbia, South Carolina 29240
Dear Mr. Haile:
You have requested an opinion of this office seeking guidance as to the State Human Affairs Commission's obligation to enforce its statutory duties where there has been no appropriations covering the costs of enforcement by the Commission. As expressed by you, you are questioning how to handle an ''unfunded mandate" that your agency is expected to continue to enforce without the personnel or money to do so. The State Supreme Court in State ex rel. McLeod v. Mills, 256 S.C. 21, 26, 180 S.E.2d 638, 640 (1971) recognized that " [t]here is no doubt that the legislature has the power, where there is no constitutional prohibition, to suspend the operation of a statute." Consistent with such, an opinion of this office dated September 8, 2008 dealt with the question of whether school districts that were the recipients of certain funding under a grant program could carry forward funds to the current school year. It was indicated that the specific program had been deleted from the current budget and, therefore, the General Assembly did not appropriate funds for the program for the year in question. The opinion determined that

[b]y not funding the program at all in... (the specified fiscal year)...the Legislature chose to discontinue the program at least for that fiscal year. Because the Legislature sought to discontinue the program, ...the Legislature sought to suspend the program 's operation. That opinion cited another opinion of this office dated June 30, 1986 which concluded that the Legislature's failure to fund a statutory mandate for the reduction in the pupil-teacher ratio made the statute inoperable. An opinion of this office dated March 8, 1990 determined that if a designated appropriation was not made, the effect would be to suspend the operation of the statute in question for the current fiscal year. Another opinion of this office dated October 21, 1976 reached the similar conclusion that the failure by the General Assembly to appropriate funds for a particular purpose suspended the operations of a particular statute. See also: Op. Atty. Gen. dated June 1, 1977 (" .. .it was the intention

REMBERT

c. DENNIS BUD.DJNG • P OST OFFICE Box ll549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • fACSIMn..E 803-253-6283

Mr. Haile
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November 16, 2010
of the Legislature to temporarily suspend ... (certain statutes) .. .if it is determined that the present license charges will not be sufficient to meet the budgetary requirement."). These opinions of our office are consistent with the conclusions of the New Hampshire Supreme Court in Petition ofStrandell, 562 A.2d 173at173 (N.H. 1989) that the failure of the New Hampshire legislature to appropriate the funds sufficient to fund a designated program " ... did not result in implied repeal of...(the) ... program, but merely limited administrative agency's ability to implement...(the) ... program." The Court recognized that "appropriations acts have ... (the) ... limited and specific purpose of providing funds for authorized programs." Id. at 176. The Court further stated that the ability of a division of State government to implement a statute " ... may at some level be limited by the availability of resources." Id. See also: Grimball v. Beattie, 174 S.C. 422, 177 S.E. 668, 672 (1934) ("It will be seen that the Constitution prohibits any money being paid out of the state treasury except in pursuance of an appropriation made by law ... The object of... (such a constitutional provision) .. .is to prohibit expenditures of the public funds at the mere will and caprice of those having the funds in custody without legislative sanction therefor."). Consistent with the above, in the opinion ofthis office, the State Human Affairs Commission could not likely be held liable for failure to enforce certain statutory duties if there has been no appropriations covering the costs of enforcement by the Commission. In other words, the Commission cannot be expected to handle an ''unfunded mandate" where there is no personnel or money to do so. By not providing the funding for a particular statutory obligation, in the opinion of this office, a court would likely conclude that, from a legal standpoint, the General Assembly has chosen to suspend the Commission's statutory obligations in such regard for the current fiscal year. Very truly yours, Henry McMaster

@::l~Jda~-By:

REVIEWED AND APPROVED BY:

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Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General