Could South Carolina's governor bar official employee bookings through a company after finding discrimination?

Plain-English summary

In 2018, a legislator asked whether the governor could stop state employees from booking reimbursed official lodging through Airbnb after the company changed listings in the West Bank. The Attorney General concluded that the governor's constitutional duty to see laws faithfully executed gave authority to investigate and address discrimination by directing employees not to use a company for official bookings if the governor judged that warranted.

The office treated that authority as discretionary. It expressly declined to decide whether Airbnb had violated § 11-35-5300 or engaged in discrimination as alleged; those were factual questions outside the scope of the opinion. The statute's policy against certain discriminatory boycotts informed its analysis, but the opinion did not make an enforcement finding against the company.

Currency note

This opinion was issued in 2018. 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 say the governor could limit official Airbnb bookings?
A: Yes. It concluded the governor had authority to issue that direction for official employee travel and reimbursement if the governor chose to exercise it.

Q: Did the office decide that Airbnb broke South Carolina law?
A: No. It said applying the anti-boycott statute to the company's conduct required fact finding it could not perform in an opinion.

Q: Did the opinion order agencies to stop using Airbnb?
A: No. It left any decision to act to the governor's discretion.

Background and statutory framework

The request invoked South Carolina's procurement policy in § 11-35-5300 and asked about a proposed governor's order for official travel. The opinion distinguished the statute's policy from the governor's separate constitutional duty under article IV, § 15 to take care that laws were faithfully executed. It drew on an earlier AG opinion concerning a governor's power to investigate discrimination in public employment.

Citations and references

• S.C. Code Ann. § 11-35-5300: discriminatory boycott contracting policy discussed in the opinion.
• S.C. Const., art. IV, § 15: take-care authority quoted in the opinion.

Official title

On whether there is any prohibition with respect to the Governor ordering state employees not to do business with a company which discriminates against the State of Israel.

Requester

The Honorable Alan D. Clemmons, Chairman, Rules Committee, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-28-2018-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/12/01844030.pdf

Original opinion text

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Alan Wilson
Attorney General

November 28, 2018

The Honorable Alan D. Clemmons

Chairman, Rules Committee

South Carolina House of Representatives
P.O. Box 11867

Columbia, SC 29211

Dear Chairman Clemmons:

You have asked for our opinion as to whether there is any prohibition with respect to the Governor ordering state employees not to do business with a company which discriminates against the State of Israel. You note that "[t]he virtual short-term rental property platform, Airbnb announced yesterday that it will no longer offer rental property listing of Jewish homes in the Israeli territories of Judea and Samaria." You reference § 11-35-5300 as setting forth the

State's policy prohibiting state agencies and political subdivisions from doing business with companies which discriminate on the basis of religion or national origin. In addition you have enclosed an article from the Wall Street Journal authored by a professor at George Mason

University's School of Law, dated November 25, 2018, ("Airbnb's Anti-Israel Hypocrisy") which states:

[ujnder Airbnb's policy, an American Jew with a rental property in the West Bank is barred from listing it for rent on the website. But an American Arab is welcome to list his home a few hundred meters away, even though the Palestinian law forbidding real estate deals with Jews carries a maximum penalty of death. That openly racist

policy doesn't trigger Airbnb's delisting policy.

See www.wsj.com/articles/airbnbs-anti-Israel-hypocrisy-l 543175767. Law/Analysis

S.C. Code Ann. § 1 l-35-5300(A) provides that:

(A)A public entity may not enter into a contract with a business to acquire or dispose of supplies, services, information technology, or construction unless the contract includes a representation that the business is not currently engaged in, and an agreement that the business will not engage in, the boycott of a person or an ILEiviBERTC. Dennis Building • Post Office Box 11549 . Columbia,SC 29211-1549 • Telephone 803-734-3970 . Facsh/hle 803-253-6283

The Honorable Alan D. Clemmons
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November 28, 201 8

entity based in or doing business with a jurisdiction with whom South Carolina can enjoy open trade, as defined in this article.

The statute was enacted as Act No. 63 of 2015. Various terms contained in subsection (A) are defined in the Act. The Act reflects the policy of South Carolina that the State will not do business with a company which is currently boycotting "a person or entity" when "the action is based on race, color, religion, gender, or national origin of the targeted person or entity." The statute further excludes from its reach those actions of a company "based on business or economic reasons" or sections applied in a nondiscriminatory manner." Subsection B. It is your contention that the company Airbnb is discriminating against Jewish property owners who rent in the West Bank because other property owners are not included in any action by Airbnb.

Of course, this Office is not authorized to determine facts in any opinion issued. As we have consistently stated, "'only a court, not this Office, may serve as a finder of fact and conclusively determine the outcome of a factual issue.'" Op. S.C. Att'v Gen.. 2009 WL 2406412 (July 7, 2009) (quoting Op. S.C. Att'v Gen. August 24, 2006). Thus, we cannot determine herein whether § 11-35-5300 is applicable to the Airbnb situation because such inquiry would require a factual investigation. What we can say about § 11-35-5300 is that the statute represents the overarching policy of the State that it will not do business with companies

which engage in discriminatory boycotts, as defined.

Your question, however, focuses more upon the Governor's authority and whether the Governor is authorized to address this issue upon a thorough examination by him. Your thought is that the Governor could, if he deemed it warranted, bar state employees from doing business with Airbnb by using the company to book accommodations and have the State reimburse the employee for lodging on official business. Of course, such would be a matter for the Governor to determine.

In South Carolina the Governor is the chief magistrate and the State's "supreme executive authority." S.C. Constitution, Art. IV, § 1. He or she is "charged with executing the law." State v.Edwards. 383 S.C. 82, 91, 678 S.E.2d 412, 417 (2009). As the Edwards Court further recognized, "[ejxecutive agencies are required to comply with the General Assembly's enactment of a law until it has been otherwise declared invalid." Id. In Hevward v. Long. 178 S.C. 351, 377, 183 S.E. 145, 156 (1935), our Supreme Court held that under the American system of government, the Governor possesses no prerogative powers, but is confined to the exercise of powers conferred upon him by the Constitution and statutes. Pursuant to South Carolina's Constitution, the Governor is required to "take care that

the laws be faithfully executed." S.C. Const., Art. IV, § 15. Executive orders by the Governor "are a method for the [Governor] to ensure that the laws are faithfully executed." 83 C.J.S. States § 257. The "take care" clause authorizes a chief executive, such as the President or Governor, to "supervise and guide" executive officers and

The Honorable Alan D. Clemmons
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November 28, 2018

employees in the construction of statutes so as to secure a "unitary and uniform execution of the Myers v. U.S.. 272 U.S. 52, 135 (1926). laws. . . We addressed a similar situation to the one presented by you in Op. S.C. Att'v Gen.. 1971 WL 17589 (No. 3216) (November 30, 1971) in the context of the Governor's authority under Art. IV, § 15. There, former Attorney General McLeod opined:
[t]he Constitution imposes the duty upon the Governor to see that the laws be

faithfully executed, and it appears clear that this mandate includes the power to make The certain that no invidious discrimination in public employment exists, of law constitutional right to be free of such discrimination is certainly a part of the this State. 1 conclude that this constitutionally vested authority places in the Governor a right of inspection superior to that of the public when the purpose of the Governor's inspection is to see that discrimination does not exist.

Thus, consistent with other existing laws, General McLeod concluded that, pursuant to Art. IV, § 15, the Governor possessed the authority to investigate and determine whether discrimination existed in public employment. Likewise, here, the Governor possesses the constitutional power to investigate and address discrimination by a company such as Airbnb by prohibiting government employees from using this company to book accommodations as part of their

official duties and to be reimbursed therefor. As in the 1971 opinion, there is a "constitutional right to be free" of discrimination as part of State law. Of course, herein, we are addressing only the Governor's constitutional authority, and not whether or not he chooses to exercise such authority for this purpose. Conclusion

Section 11-35-5300 represents the public policy of the State that it will not do business with companies which engage in discriminatory boycotts. Pursuant to Art. IV, § 15 of the South Carolina Constitution, the Governor possess the constitutional authority to address the situation

concerning Airbnb. Such authority would include, should the Governor see fit, to mandate that public employees not book accommodations through this company as part of their official duties and to be reimbursed therefor. Of course, the exercise of any such authority is a matter for the Governor to determine within his sound discretion. Sincerely,

Robert D. Cook
Solicitor General