Who appointed Colleton County's transportation committee, and how long could members serve?

Plain-English summary

A senator asked who could appoint Colleton County's transportation committee, how many members it had and when their terms expired. The 2000 informal opinion said the county's joint legislative delegation was the appointing body for all members. The transportation statute required fair representation of municipalities and unincorporated areas but set no fixed number of seats or term length.

The AG said the power to remove members followed the power to appoint when no term or removal procedure was fixed by law. It concluded the delegation could remove individual members or the whole committee, while identifying unconstitutional reasons such as race or religion as a restriction. It did not name the individual members; it said the duly appointed members were those properly appointed by the delegation.

Currency note

This opinion was issued in 2000. 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 Senate and House delegations each appoint separate members?
A: The AG said the joint county legislative delegation was the appropriate body to make all appointments.

Q: Did state law fix the committee's size or members' terms?
A: No. The opinion said the statute required fair representation but supplied no fixed number or term length.

Q: Could the delegation remove members?
A: The AG said it could remove individual members or the whole committee at its discretion, subject to the restriction against unconstitutional reasons.

Background and statutory framework

The opinion traced the transportation committee statute through earlier court rulings on the separation of legislative and executive power. It read Section 12-28-2740's appointment rule and lack of term or removal provisions with the general principle that the power of removal accompanies the power of appointment when no term is fixed by law.

Citations and references

• Section 12-28-2740, on county transportation committees.
• State ex rel. Williamson v. Wannamaker, on removal when a term is not fixed.

Official title

Concerning the Colleton County Transportation Committee (CCTC).

Requester

The Honorable Larry K. Grooms, Senator, District No. 37

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-9-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00oct9grooms.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
AITORNEY GENERAL

October 9, 2000

I

The Honorable Larry K. Grooms
Senator, District No. 37
131 Indian Field Drive
Bonneau Beach, South Carolina 29431

RE: Informal Opinion
Dear Senator Grooms,
By your letter of September 29, 2000, you have requested an opinion of this Office concerning the Colleton County Transportation Committee (CCTC). Specifically you ask: I) What governing body (or bodies) has the legal authority to make appointments to the CCTC? 2) How many appointments are made by the Colleton Senate Delegation, Colleton House Delegation, and Colleton Joint Legislative Delegation? 3) How many members are on the CCTC? 4) Who are its duly appointed members and when do their terms expire? By way of background, in Tucker v. South Carolina Department of Highways and Public Transportation, 309 S.C. 395, 424 S.E.2d 468 (1992) (Tucker I), the Supreme Court found the provisions of Section 12-27-400, which required that a county legislative delegation approve the expenditure of the gasoline tax earmarked as "C" construction funds and allowed the delegation to contract for improvements, to be unconstitutional. The court found these provisions unconstitutional because the legislative delegates are only permitted to exercise legislative power as members of the General Assembly enacting legislation. By constitutional mandate, the legislature may not undertake both to pass laws and to execute them by bestowing upon its own members functions that belong to other branches of government. In addition, action by a legislative delegation pursuant to a complete law cannot qualify as action to enact legislation and is therefore invalid. The General Assembly subsequently amended Section 12-27-400 to require that the county legislative delegation appoint a county transportation committee to oversee the expenditure of "C" funds. The constitutionality of the amended version of Section 12-27-400 was upheld by the court

('

I
Senator Grooms
October 9, 2000
Page 2of3
in Tucker v. South Carolina Department of Highways and Public Transportation, 314 S.C. 131, 442 S.E.2d 171 (1994) (Tucker II). Thereafter, Section 12-27-400 was recodified as Section 12-28-2740. Question 1 South Carolina Code Section 12-28-2740(8) provides that "[t]he county transportation committee must be appointed by the county legislative delegation and must be made up of fair representation from municipalities and unincorporated areas of the county." Thus, applying the plain meaning of the statute, as must be done in the absence of ambiguity, the county legislative delegation possesses the legal authority under the statute to appoint the members of the transportation committee. Questions 2 and 3 Again, under a plain reading of the statute, "the county legislative delegation" makes the appointments, and therefore, the joint legislative delegation would be the appropriate body to appoint all members of the committee. There is nothing in the "C-funds"statute which indicates that a county transportation committee must be comprised of a specific number of individuals, however. Further, it does not appear there is any limitation in the delegation's ability to increase or decrease the number of individuals serving on the committee. In fact, it appears that the only statutory restriction placed on the legislative delegation's appointment power is that the county transportation committee must reflect a "fair representation" of the county. Question 4 h~fi

Ii

I

It is a general rule that when the term or tenure of a public officer is not fixed by law, and the removal is not governed by constitutional or statutory provisions, the power of removal is incident to the power to appoint. In other words, the appointing power, where the term is not fixed by law, may remove the appointee at pleasure and without notice or opportunity to be heard. State ex rel. Williamson v. Wannamaker, 213 S.C. 1, 48 S.E.2d 601 (1948). However, removal for such unconstitutional reasons such as race or religion may be construed as a restriction on the removal power. Section 12-28-2740 does not contain any provision setting forth a term of office for an individual appointed to the county transportation committee. Additionally, the statute contains no provision setting forth the power to remove an individual appointed to the county transportation committee. Therefore, in accordance with the general rule, the power to remove, in this instance, is incident to the power to appoint. Other than the restriction on removal for unconstitutional reasons, there does not appear to be any other restriction upon the legislative delegation's power to remove members of the

Senator Grooms
October 9, 2000
Page 3of3

L
I

transportation committee. Consequently, the legislative delegation may remove individual members or the entire membership of the transportation committee, if so desired. Indeed, Section 12-282740(0) states "Notwithstanding other provisions of this section. the legislative delegation of a county may by delegation resolution abolish the county transportation committee and devolve its powers and duties on the governing body of the county." Thus, in response to your question, the duly appointed members of the committee are those properly appointed by the legislative delegation, their terms have no specific length, and they may be removed at the discretion of the legislative delegation. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I remain

Assistant Deputy Attorney General