Can a South Carolina county council tell the sheriff's deputies what to do at council meetings, and can deputies use force to enforce public comment rules?

Official title

Opinion addressing a county council's authority over a sheriff and his or her deputies and enforcement of public comment guidelines at public county council meetings.

Requester

Requested by The Honorable Lee Boan, Sheriff, Kershaw County.

Plain-English summary

A Kershaw County sheriff asked two questions about his deputies' role at county council meetings. First, can the council chair or a council member tell his deputies what to do during the meeting? Second, can deputies use physical force to enforce council rules, including public comment guidelines?

On the first question, the Attorney General concluded a court would likely say no. Kershaw County uses a council-administrator form of government under the Home Rule Act. The AG explained that a county council has only limited authority over an elected official's duties, and by statute the county administrator "shall exercise no authority over any elected officials" except for organizational policies set by the governing body. South Carolina sheriffs are elected constitutional officers, and deputies are the sheriff's agents who serve at his pleasure. South Carolina courts have repeatedly held that the sheriff and his deputies are state officials, not county employees, and that the county "has no authority over the Sheriff or his deputies as to matters of hiring, firing, training, discipline or the manner in which the duties of the office are carried out." Given all that, the AG said the council's limited authority over elected officials does not stretch to giving direct orders to the sheriff or his deputies.

On the second question, the answer turned on a technical but important point. Deputies are sworn to enforce the criminal laws of the State, and the AG has previously concluded that local ordinances count as criminal laws of the State, which is why sheriffs can generally enforce county ordinances. But Kershaw County's public comment guidelines were never codified as a county ordinance. Because they are not part of the State's criminal laws, the AG concluded a court would likely hold that a sheriff and his deputies lack authority to use physical force to enforce those guidelines, unless the conduct in question also violates a state criminal law. The opinion added a footnote noting its analysis did not address a deputy acting as a sergeant-at-arms at a council meeting.

What this means for you

Sheriffs and deputies: The opinion concludes you are not subject to direct orders from county council members about how to do your job at a meeting, because the council's authority over elected officials is limited and does not reach the sheriff's office. It also concludes you likely cannot use physical force to enforce meeting rules that exist only as council guidelines, not as an enacted ordinance or a state crime.

County councils: The AG read your authority over the sheriff as limited; you fund the office but cannot direct its operations. If the opinion's reasoning holds, public comment rules that are only internal guidelines, rather than an adopted ordinance, would not be enforceable by deputies through force on their own terms.

Members of the public at meetings: The opinion indicates that breaking a council's public comment guideline is not by itself a crime a deputy can use force to stop. That changes if the same conduct also violates a state criminal law (for example, disorderly conduct or trespass), which the AG expressly left open.

Common questions

Can a county council member order the sheriff's deputies around during a meeting?
The AG concluded a court would likely say no. A council's authority over elected officials is limited, and the sheriff's office sits outside the council's and administrator's control over how the office's duties are carried out.

Are sheriff's deputies county employees or state officials?
South Carolina courts treat sheriffs and their deputies as state officials, not county employees, for purposes such as personnel policies and grievance procedures. The AG relied on that line of cases here.

Can deputies physically enforce public comment rules at a council meeting?
Likely not, according to the opinion, because Kershaw County's public comment guidelines were never adopted as a county ordinance and so are not part of the State's criminal laws. The exception is when the conduct also violates a state criminal law.

Would it matter if the council passed the rules as an ordinance?
The opinion turns on the fact these guidelines were not codified as an ordinance. The AG has elsewhere treated county ordinances as criminal laws of the State that sheriffs can generally enforce, so adopting an ordinance changes the analysis, though this opinion did not resolve that scenario.

Background and statutory framework

Kershaw County operates under the council-administrator form of government in the Home Rule Act. S.C. Code Ann. § 4-9-650 provides that the county administrator "shall exercise no authority over any elected officials of the county whose offices were created either by the Constitution or by the general law of the State," except organizational policies set by the governing body. S.C. Code Ann. § 4-9-30(7) addresses the county's personnel authority and excludes personnel under the direction of an elected official.

Sheriffs are elected constitutional officers under S.C. Const. art. V, § 24. S.C. Code Ann. § 23-13-10 lets the sheriff appoint deputies who serve at his pleasure and makes the sheriff answerable for their conduct; the Supreme Court applied that "pleasure" rule in Rhodes v. Smith, 273 S.C. 13, 254 S.E.2d 49 (1979). The cases establishing that deputies are state rather than county officials include Cone v. Nettles, 308 S.C. 109, 417 S.E.2d 523 (1992), and Heath v. Aiken County, 295 S.C. 416, 368 S.E.2d 904 (1988), with the federal district court in Allen v. Fidelity & Deposit Co. of Maryland, 515 F. Supp. 1185 (D.S.C. 1981), explaining that the county has no control over the sheriff or his deputies.

On enforcement authority, S.C. Code Ann. § 23-13-50 lets a duly qualified deputy perform any duty of the sheriff's office, and S.C. Code Ann. § 23-13-20 sets the deputy's oath to enforce the criminal laws of the State. The AG's prior opinions treating local ordinances as criminal laws of the State are what let sheriffs enforce county ordinances; the absence of an ordinance here is what defeated enforcement of the public comment guidelines.

Citations

• S.C. Code Ann. § 4-9-650 (administrator has no authority over elected officials)
• S.C. Code Ann. § 4-9-30(7) (county personnel authority; exclusion for elected officials' personnel)
• S.C. Code Ann. § 23-13-10 (appointment of deputies; deputies serve at sheriff's pleasure)
• S.C. Code Ann. § 23-13-50 (qualified deputy may perform sheriff's duties)
• S.C. Code Ann. § 23-13-20 (deputy's oath to enforce criminal laws of the State)
• S.C. Const. art. V, § 24 (sheriff as elected constitutional officer)
• Rhodes v. Smith, 273 S.C. 13, 254 S.E.2d 49 (1979)
• Cone v. Nettles, 308 S.C. 109, 417 S.E.2d 523 (1992)
• Heath v. Aiken County, 295 S.C. 416, 368 S.E.2d 904 (1988)
• Allen v. Fidelity & Deposit Co. of Maryland, 515 F. Supp. 1185 (D.S.C. 1981)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-a-county-council-s-authority-over-a-sheriff-and-his-or-her-deputies-and-enforcement-of-public-comment-guidelines-at-public-county-council-meetings/
• Original PDF: https://www.scag.gov/media/1kxlkibu/03546090.pdf

Original opinion text

Alan Wilson
attorney General

March 29, 2024

Sheriff Lee Boan
Kershaw County Sheriff Office
821 Ridgeway Rd.

P.O. Box 70
Lugoff, SC 29078
Dear Sheriff Boan:
We received your letter requesting an Attorney General’s opinion regarding Kershaw County

Sheriffs deputies’ presence at Kershaw County Council (County Council) public meetings. You
present the following questions:
1 . Can the County Council Chair (who runs the council meetings) or any County
Council member tell my deputies what to do during County Council meetings?

2.

Do my deputies have the legal authority to use physical force to enforce any
County Council rules including, but not limited to, public comment guidelines?

We will address each of your questions in turn.
Law/Analysis
It is our understanding that Kershaw County operates under a council-administrator form of county
government pursuant to sections 4-9-610 to -670 of the South Carolina Code (2021), which is

included in the body of legislation known as the Home Rule Act. 1 We have recognized in previous
opinions that “[a] county council is generally considered as having only limited authority in
dealing with the authority or duties of an elected official.” Op. S.C. Atf v Gen., 2006 WL 1207277

(S.C.A.G. April 20, 2006); see also S.C. Code Ann. § 4-9-30(7) (2021); Op. S.C. Att’y Gen., 2012
WL 1774920 (S.C.A.G. May 7, 2012); Op. S.C. Att’y Gen., 2006 WL 1877110 (S.C.A.G. June

19, 2006). “With the exception of organizational policies established by the governing body, the
county administrator shall exercise no authority over any elected officials of the county whose
offices were created either by the Constitution or by the general law of the State.” S.C. Code Ann.
§ 4-9-650.

1 S.C. Code Ann. §§ 4-9-10, et seq. (2021 & Supp. 2023).
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TELEPHONE

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Sheriff Lee Boan
Page 2

March 29, 2024

In South Carolina, sheriffs are elected constitutional officers. S.C. Const, art. V, § 24. Our State
Constitution provides that the General Assembly shall provide by law for the duties of the office
of county sheriff. Id. This Office has consistently opined that a sheriff is the chief law enforcement
officer of a county. See e.g. Op. S.C. Att’v Gen., 2015 WL 3919079 (S.C.A.G. June 11, 2015);
Op. S.C. Att’y Gen., 2005 WL 774155 (S.C.A.G. March 1, 2005). Section 23-13-10 of the South
Carolina Code (2007) defines the relationship between sheriffs and sheriff’s deputies, providing:

The sheriff may appoint one or more deputies to be approved by the judge of the
circuit court or any circuit judge presiding therein. Such appointment shall be
evidenced by a certificate thereof, signed by the sheriff, and shall continue during
his pleasure. The sheriff shall in all cases be answerable for neglect of duty or
misconduct in office of any deputy.

As recognized by the Supreme Court of South Carolina, “[I]t is well settled in South Carolina that
a deputy sheriff serves at the sheriffs ‘pleasure.’” Rhodes v. Smith, 273 S.C. 13, 15, 254 S.E.2d
49, 50 (1979) (quoting S.C. Code Ann. § 23-13-10).

In Cone v. Nettles, the Supreme Court of South Carolina held sheriffs and sheriff’s deputies are
State, not county, officials. 308 S.C. 109, 1 12, 417 S.E.2d 523, 524 (1992). The Court, recognized

the District Court for the District of South Carolina’s holding in Gulledge v. Smart,2 providing “the
State has the ‘potential power of control’ over the office of sheriff’ and “a deputy, as an agent of
the sheriff, is also ‘more closely connected to the state than to the county,’ hence, a state official.”
308 S.C. at 112, 417 S.E.2d at 525 (quoting Gulledge, 691 F.Supp. at 955). In Heath v. Aiken
County, the Supreme Court of South Carolina held sheriff’s deputies are State, not county,

employees for purposes of section 4-9-30(7)’s personnel policies3 and grievance procedure.4 295
S.C. 416, 418-19, 368 S.E.2d 904, 905-06 (1988). The Court explained the implementation of a
personnel policy, which included working hour limitations, attendance and leave regulations, and

2 691 F.Supp. 947 (D.C.S.C. 1988), q/ft/878 F.2d 379 (4th Cir. 1989).
3 S.C. Code Ann. § 4-9-30(7) (providing a county governing body is empowered “to develop
personnel system policies and procedures for county employees by which all county employees
are regulated except those elected directly by the people, and to be responsible for the employment
and discharge of county personnel in those county departments in which the employment authority
is vested in the county government. This employment and discharge authority does not extend to
any personnel employed in departments or agencies under the direction of an elected official or an
official appointed by an authority outside county government”).

4 We note the General Assembly amended section 4-9-30(7) to clarify references relating to county
grievance procedures after the filing of the underlying declaratory judgment action in Heath.
Heath, 295 S.C. at 418 n.2, 368 S.E.2d at 905 n.2. This Office opined that “with the amendment,
no employee of an elected official, such as a sheriff, who is discharged by such official, is entitled
to a grievance hearing under Section 4-9-30(7).” Op. S.C. Att’y Gen., 1 988 WL 38355 1 (S.C.A.G.
September 14, 1988).

Sheriff Lee Boan
Page 3

March 29, 2024

work schedule assignments, “would afford [a county council] a degree of day-to-day control over
deputies irreconcilable with the common and statutory law of this state.” Iff at 41 9, 368 S.E.2d at
905. The Court noted the District Court for the District of South Carolina has recognized that, in
the context of a Title 42 U.S.C. § 1983 action, “it is abundantly clear that historically in South
Carolina the deputy sheriffs are answerable only to the sheriff and not the county government.”
Iff at 419 n.3, 368 S.E. 2d 905 n.3 (quoting Allen v. Fidelity & Deposit Co. of Maryland, 515
F.Supp. 1185, 1190 (D. S.C. 1981), affd, 694 F.2d 716 (4th Cir. 1982)). In this federal district court
case, the District Court held Aiken County could not be held liable for the actions of the County
Sheriff and his deputies when, inter alia, the County was “precluded from exercising any
supervisory function or control over the Sheriff or his deputies.” Allen, 515 F.Supp. at 1190. In
reaching this conclusion, the District Court explained:

In Aiken County, as in most other counties of South Carolina, law enforcement is
the sole responsibility of the elected sheriff and his deputies appointed by him
whose duties are specified by the constitution of the State, the statutes and case law.
It has long been clear that the County has no authority over the Sheriff or his
deputies as to matters of hiring, firing, training, discipline or the manner in which
the duties of the office are carried out. The sheriff in South Carolina has under
common law and statutes always been solely responsible for his own acts and those
of his deputies.
In South Carolina, the sheriff and his deputies have the sole responsibility for law
enforcement. The county government cannot hire or fire the deputies nor can it tell

the sheriff the manner or method by which he and his deputies are to perform the
official acts of his office.
Id. at 1189-90; see also Patel by Patel v. McIntyre, 667 F. Supp. 1131, 1146 (D.S.C. 1987), affd
sub nom. Patel by Patel v. Dyar, 848 F.2d 185 (4th Cir. 1988) (“[I]t is well established in South

Carolina case law that law enforcement at the county level is the exclusive province of the
sheriff.”).
Additionally, this Office determined in a June 2015 opinion that “it is clear the Sheriff, as the chief
law enforcement officer of the county vested with the power to appoint deputies, certainly serves
as a supervisor to his deputies and, assuming the proper procedures for appointment are followed
and the deputy is otherwise qualified, has discretion to choose, supervise and assign his
employees.” Op. S.C. Atf v Gen., 2015 WL 3919079 (S.C.A.G. June 11, 2015). This Office has
further opined that although county councils have the authority to appropriate funds for the
operation of a sheriff’s office, county councils do “not have the authority through the budget
process to interfere with the operations of a sheriff’s department.” Op. S.C. Att’v Gen., 2020 WL

5259200 (S.C.A.G. August 17, 2020); see also Op. S.C. Att’v Gen., 1989 WL 406145 (S.C.A.G.
May 8, 1989). Moreover, we have recognized “police officers must retain a wide degree of
discretion in carrying out their duties of enforcing the laws.” Op. S.C. Att’v Gen., 2008 WL
1 960284 (S.C.A.G April 1 7, 2008).

Based on the foregoing authorities, we believe a court would

Sheriff Lee Boan
Page 4
March 29, 2024

likely find county council members’ limited authority over elected officials does not extend to
giving direct orders to a county sheriff or his or her deputies.3

As previously stated, a sheriff is the chief law enforcement officer of a county.

“When duly

qualified a deputy sheriff may perform any and all of the duties appertaining to the office of his

principal.”

S.C. Code Ann. § 23-13-50 (2007).

“A deputy . . . acts as his sheriff’s agent under

South Carolina law.” Heath. 295 S.C. at 418-19, 368 S.E.2d at 905. The oath of office of a deputy

sheriff affirms the office enforces the criminal laws of the State. S.C. Code Ann. § 23-13-20 (2007)
(“[Each deputy sheriff] shall take the following oath (or affirmation) to wit: ‘I further solemnly
swear (or affirm) that during my term of office as county deputy, I will study the act prescribing
my duties, will be alert and vigilant to enforce the criminal laws of the State and to detect and
bring to punishment every violator of them, . . .’”).

We have previously concluded local

ordinances—both county and municipal—constitute criminal laws of the State. See e.g. Op. S.C.
Att’y Gen,. 2010 WL 2678695 (S.C.A.G. June 28, 2010); Op, S.C. Att’y Gen., 2009 WL 276749
(S.C.A.G. January 12, 2009); Op, S.C. Att’y Gen., 1996 WL 452786 (S.C.A.G. May 20, 1996).
As such, this Office has determined county sheriffs have the authority to enforce county

ordinances, generally.

Op. S.C. Att’y Gen,, 2009 WL 276749 (S.C.A.G. January 12, 2009); Op,

S.C. Att’y Gen., 1996 WL 452786 (S.C.A.G. May 20, 1996). It is our understanding the Kershaw
County Council has prescribed public comment guidelines; however, it does not appear these

guidelines have been codified as a county ordinance. Based on this understanding, we believe a
court would find violations of public comment guidelines fall outside the scope of the State’s
criminal laws, unless such conduct also constitutes a violation of State criminal law. Accordingly,

we believe a court would likely hold a sheriff and his or her deputies lack authority to use physical
force to enforce public comment guidelines.
Conclusion

We believe a court would likely determine county council members’ limited authority over elected
officials does not extend to giving direct orders to a county sheriff or his or her deputies during

public county council meetings. Further, we believe a court would find public comment guidelines
fall outside the scope of the State’s criminal laws and therefore, unless such conduct also
constitutes a violation of State criminal law, a sheriff and his or her deputies lack authority to
enforce such guidelines with physical force.

Sincerely,

Elizabeth McCann
Assistant Attorney General

3 We note our analysis does not contemplate a sheriff s deputy acting as a sergeant-at-arms at a
county council meeting.

Sheriff Lee Boan
Page 5
March 29, 2024

REVIE

ED AND APPROVED BY:

Robert D. Cook
Solicitor General