Did South Carolina’s no-pay rule cover every public-works commissioner in cities over 50,000?

Plain-English summary

In February 2022, the South Carolina Attorney General concluded that the compensation ban for public-works commissions in cities of at least 50,000 inhabitants applied only to the ex officio commissioners identified by the statute. Those were the mayor and, if the city had such a committee, its water-supply committee chair. The ban did not extend to the three elected commissioners created by a separate provision.

The office expressly reversed earlier AG opinions to the extent they said the statute barred compensation for an entire public-works commission. The request also asked whether health insurance and similar benefits counted as compensation if all commissioners were covered. The opinion resolved the threshold question by limiting the ban to ex officio members and did not separately analyze those benefits.

What this means for you

Public-works boards in larger cities

The opinion separated elected commissioners from members who sat on the board by virtue of another office. It said the cited no-pay language applied to the latter group only, and that older AG statements extending it to all commissioners were reversed on that point.

Ex officio commissioners and city attorneys

The opinion treated service under the cited provision as uncompensated. It did not give a separate benefits-specific ruling, so its direct holding concerns the statute's reach across categories of commissioners.

Common questions

Q: Were the three elected commissioners covered by this statute's compensation ban? A: No. The AG said the ban reached the ex officio commissioners added for larger cities, not the elected seats created under separate authority.

Q: Did the AG change its prior view?
A: Yes. It expressly reversed earlier opinions insofar as they read the ban as covering every commissioner on the board.

Q: Did the opinion decide whether health insurance counted as compensation? A: The request raised that issue, but the AG's analysis and conclusion addressed which commissioners the ban covered and did not separately decide how benefits were classified.

Background and statutory framework

Counsel for Charleston Water System asked what the phrase “such commissioners” meant in the statute for larger cities. The AG read the phrase in context with provisions establishing elected and ex officio board seats and revisited older opinions that had described the compensation rule more broadly.

Citations and references

• S.C. Code § 5-31-220: ex officio seats and compensation language interpreted by the AG.
• S.C. Code § 5-31-215: related public-works board provision discussed in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addresses-the-compensation-prohibition-in-sc-code-section-5-31-220-and-whether-it-applies-to-all-commissioners-on-boards-of-commissions-of-public-works-in-cities-of-fifty-thousand-inhabitants-or-more/
• Original PDF: https://www.scag.gov/media/owclm5oc/02916179.pdf

Original opinion text

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Alan Wilson
Attorney General

February 28, 2022

Jennifer C. Blumenthal, Esq.

100 Calhoun St.
Suite 400
Charleston, SC 29401
Dear Ms. Blumenthal:

Attorney General Alan Wilson has referred your letter to the Opinions section. The letter states the following:

This request for an opinion is being submitted on behalf of the Commissioners of Public Works of the City of Charleston, South Carolina, d/b/a Charleston Water System ("CWS") regarding the interpretation of Section 5-31-220 of the Code of Laws of South Carolina, 1 976, as amended (the "Code"), specifically the phrase "such commissioners," as used in that section. Section 5-31-220 of the Code relates to special provisions for cities over 50,000

and states, in part, "such commissioners of public works shall serve without compensation."

In cities of fifty thousand inhabitants or more, in addition to the three commissioners of public works to be elected as provided in § 5-31 210, the mayor and the chairman of the committee on water supply, if there be such a committee, shall be ex officio commissioners of public works. In such cities such commissioners of public works shall serve without compensation. The board of commissioners of public works in any such city shall fill any vacancy occurring in the

commission by appointment for the unexpired term, appointment to be made by the remaining commissioners, except in the case of an ex officio member of the commission.

Does the phrase "such commissioners" in Section 5-31-220 of the Code refer only to the ex officio commissioners of public works referenced in the preceding sentence or does it refer to all commissioners of public works in cities over 50,000?

Rembert C. Dennis Building

«

Post Office Box 11549

• Columbia, SC 292 11-1549

• Telephone 803-734-3970

. Facsimile 803-253-6283

Jennifer C. Blumenthal, Esq.
Page 2
February 28, 2022

If it is intended to bar all commissioners of public works in cities over 50,000 from receiving compensation,

are health

insurance

and

similar benefits

deemed

compensation for the purposes of Section 5-3 1-220?
Law/Analysis

It is this Office's opinion that the prohibition on compensation in S.C. Code § 5-31-220 only prohibits providing ex officio commissioners compensation for their service on a board of commissioners of public works ("CPW") in cities of fifty thousand inhabitants or more. Attorney General McLeod's April 21, 1976 opinion addressed "whether a city can provide a salary or per diem to the Commissioners of Public Works created under the provisions of Section 59-172 of the
[1962] Code of Laws," which is currently codified as Section 5-3 1-220 in the 1976 Code of Laws. 1976 S.C. Op. Att'y Gen. 159 (1976) (emphasis added). The opinion succinctly concluded, "Insofar as compensation is concerned, I think that the answer is that this cannot be done." Id. Subsequent opinions have cited McLeod's opinion to say "a city could not provide salaries to a commission of public works established under Section 5-31-220." Op. S.C. Att'y Gen.. 2005 WL 2250219 (August 24, 2005) (emphasis added); see also Op. S.C. Att'y Gen.. 1997 WL 255950 (April 7, 1997) (same). As will be discussed further below, these opinions misstate Attorney General McLeod's conclusion insofar as they advise against providing compensation to all commissioners of public works, rather than merely the ex officio commissioners added by Section 5-31-220. For this reason, those opinions are overruled on this point. See Op. S.C. Att'v Gen.. 2017 WL 1528200 (April 13, 2017) ("Traditionally, this Office does not overrule a prior opinion unless there has been a change in the law or where there is clear error."). While this Office has previously addressed section 5-31-220, this opinion will rely on the rules of statutory construction to analyze the questions presented. The primary rule of statutory construction is to "ascertain and give effect to the intent of the legislature." Kerr v. Richland Mem'l Hosp., 383 S.C. 146,148, 678 S.E.2d 809, 811 (2009) (citations omitted). The South Carolina Supreme Court has held that when the meaning of a statute is clear on its face, "then the rules of statutory interpretation are not needed and the court has no right to impose another meaning. The words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation." Catawba Indian Tribe of S.C. v. State. 372 S.C. 519, 525-26, 642 S.E.2d 751, 754 (2007) (citations omitted) (internal quotations omitted); see also Hodges v. Rainev. 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (holding that

where a statute's language is plain and unambiguous, "the text of a statute is considered the best evidence of the legislative intent or will."). "A statute as a whole must receive a practical, reasonable and fair interpretation consonant with the purpose, design, and policy of lawmakers." State v. Henkel. 413 S.C. 9, 14, 774 S.E.2d 458, 461 (2015), reh'g denied (Aug. 5, 2015). Where statutes deal with the same subject matter, it is well established that they "are in pari materia and must be construed together, if possible, to produce a single, harmonious result." Penman v. Citv of Columbia. 387 S.C. 131, 138,691 S.E.2d 465,468 (2010). With these principles in mind, this opinion will next look to specific provisions within the text of section 5-31-220, related statutes, and legislative history to guide its analysis.

Jennifer C. Blumenthal, Esq.
Page 3
February 28, 2022

The plain language of section 5-31-220 indicates legislative intent that the prohibition on The first sentence of section 5-3 1 -220

compensation apply solely to ex officio commissioners.

contains special provisions regard the composition of CPWs for cities with populations of over

50,000 persons; namely, it requires that one or two commissioners serve in an ex officio capacity

"in addition to the three commissioners" that are elected to serve on the CPW directly. 1 The second sentence contains the prohibition on compensation which states,

"In such cities

such

commissioners of public works shall serve without compensation." Id The use of the word "such" in relation to both "cities" and "commissioners" limits the scope of the prohibition. "Such" is commonly understood to refer to something that has previously been described. See MerriamWebster Online, https://www.merriam-webster.com/dictionary/such ("of the character, quality, or extent previously indicated or implied"); see also American Heritage College Dictionary 1356 (3d. ed. 1993) ("Such- adj. l.a. Of this kind"). And so, the words "such cities" refers to the previously mentioned cities, those of fifty thousand inhabitants or more. By the same token, the words "such commissioners" refers to the previously mentioned commissioners, the ex officio commissioners

of public works. 2
Further, when section 5-31-220 is read in context with sections 5-31-210 and -215, it is

clear that the three elected commissioners of public works are established under separate statutory

authority from the ex officio commissioners. See Penman, supra. As originally adopted, section 5-31-210 authorized the creation of CPWs without reference to a municipality's population. See 1896 (22) 83. Until 1980, this section made no mention of municipal population and did not otherwise provide for commissioners beyond the three elected commissioners.

At any election for bonds held to meet the costs of acquiring property of the character referred to in § 59-241 the elector shall vote for three citizens of the city or town . . . The officers so elected and their successors in office shall be known as the commissioners of public works of such municipality ... 1962 Code § 59-171 (emphasis added).

While section 5-31-210 was subsequently amended to

permit municipalities with populations of less than 50,000 to add "two additional commissioners," section 5-31-220 has not and remains as amended in 1940. 1989 Act No. 117, § 1; see also S.C. Code § 5-31-215 (adopted in 1995 to permit ex officio commissioners in cities with "a population S.C. Code § 5-31-220.

In cities of fifty thousand inhabitants or more, in addition to the three commissioners of public works to be elected as provided in § 5-31-210, the mayor and the chairman of the committee on water supply, if there be such a committee, shall be ex officio commissioners of public works.

2 The 1932 Code provided, "That in such cities said commissioners of public works shall serve without compensation." 1932 Code § 7281 (emphasis added). The change to "such" in the current version of South Carolina Code does not appear to result from legislative amendment. However, employing either "such" or "said" supports interpreting the prohibition's reach narrowly to apply only to the commissioners previously mentioned; the ex officio commissioners. See SAID, Black's Law Dictionary (11th ed. 2019) ("said adj. (13c) Aforesaid; above-mentioned"); American Heritage College Dictionary 1200 (3d. ed. 1993) ("Saidadj. Law. Aforementioned").

Jennifer C. Blumenthal, Esq.
Page 4

February 28. 2022

of more than thirty thousand persons and fewer than fifty thousand persons."). At the time it was last amended, section 5-31-220 was the sole statute to authorize commissioners beyond the three elected commissioners. In this context, at the time Attorney General McLeod authored his opinion, it was clear that Section 5-31-220 did not create the three popularly elected commissioners or create a separate category of CPW; it only added ex officio commissioners to CPWs when the population threshold is crossed. Sec 1 962 Code § 59-1 72 ("Uln addition to the three commissioners

of public works to be elected as provided in 3 59-171 ...") (emphasis added). Therefore, when reading Attorney General

McLeod's conclusion that compensation

is prohibited

for "the

Commissioners of Public Works created under the provisions of Section 59-172," it should be understood to apply solely to the ex officio commissioners, but not to the three commissioners created under section 5-31-210. 1976 S.C. Op. Att'y Gen. 159 (emphasis added).

This Office's

opinions stating the prohibition on compensation in section 5-31-220 applies to entire CPWs are incorrect and are reversed on this point. Conclusion

As is discussed more fully above, it is this Office's opinion that the prohibition on compensation in S.C. Code § 5-31-220 only prohibits providing ex officio commissioners

compensation for their service on a board of commissioners of public works in cities of fifty thousand inhabitants or more. The plain language of the compensation prohibition demonstrates legislative intent that it was designed to apply to commissioners who are compensated under other

authority; those serving in an ex officio capacity. See id. ("In such cities such commissioners of public works shall serve without compensation.") (emphasis added).

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General