Can a South Carolina AG opinion order a state board to take a specific action, or is it only advice?

Plain-English summary

This short follow-up opinion exists to head off a misreading of the AG's earlier March 27, 2025 opinion about the South Carolina Corn Board and the Agriculture Commission. The Corn Board's attorney was concerned that some readers were treating the March 27 opinion as an order requiring the Corn Board to close an external bank account and move the funds to a state-held account.

The AG's response: that is not what an AG opinion does, and it is not what this one said. The Office's authority under S.C. Code §§ 1-7-90, -100, and -110 is to provide interpretations of the law on request. Those interpretations are advisory. They are not binding on courts, on parties, or on the agencies who receive them. The Office "cannot direct any such funding authority with respect to how to exercise its judgment or discretion."

The clarification reaffirms the substance of the March 27 opinion (its legal reasoning is unchanged) but adds explicit language that the opinion is not an order to the Corn Board, the Agriculture Commission, the Department of Agriculture, or anyone associated with them.

The Office also flagged a possible practical alternative: a "composite reservoir bank account" structure that appears in some budget resolutions. The AG could not find clear authorization in the Code or regulations, but if it works for both sides, it could be a cheaper resolution than litigation. If the parties cannot agree, court is the right forum.

What this means for you

If you serve on a South Carolina state board or commission

An AG opinion about your board is the AG's read of the law, not an executive order from the AG. Your board still exercises its own judgment and discretion in carrying out its statutory duties. If the AG concludes that the law requires a particular result, that read is persuasive in court but not self-executing. Until a court issues a binding ruling, you act based on your own legal counsel's analysis of what the law requires.

That said, ignoring an AG opinion is rarely a costless choice. If a court later agrees with the AG, you may have exposure for acting contrary to that interpretation. The opinion is a strong signal of how a court is likely to rule.

If you advise a state board or commission

When the AG issues an opinion in your matter, parse it carefully. Distinguish (a) the legal conclusion the AG reached, (b) the factual scenario the AG was responding to, and (c) anything the AG explicitly disclaims. AG opinions almost never contain orders directed at specific parties. Phrasing like "we conclude that the law requires X" is interpretive, not directive.

If a counterparty is treating an AG opinion as a binding order, this clarification opinion is your reference. The AG itself disclaims that role in plain English.

If you are involved in a dispute between an agency and a subordinate board

The AG's preferred resolution mechanism is negotiation; the AG's fallback is litigation. The Office is not a substitute for either. In this Corn Board / Agriculture Commission situation, the AG essentially told both parties: find a way to live together (and a composite reservoir bank account might be one path), or take this to court.

If you are a journalist or citizen reading AG opinions

When you see an AG opinion summarized as "the AG ordered Agency X to do Y," remain skeptical. AG opinions express the Office's view of what the law requires. They are commonly cited as persuasive authority but they do not have the binding force of a court order. Charleston County School District v. Harrell explicitly says AG opinions are not binding on courts.

Common questions

Q: Can the South Carolina AG order a state agency to act?
A: No. The AG's role under S.C. Code §§ 1-7-90, -100, -110 is to provide legal advice and interpretation when asked. The Office can sue on behalf of the State when authorized, but a standalone opinion is not an order.

Q: Are AG opinions binding on a court?
A: No. Charleston County School District v. Harrell, 393 S.C. 552, 713 S.E.2d 604 (2011) confirms that courts treat AG opinions as persuasive authority, not as controlling precedent. A judge can adopt the AG's reasoning, disagree with it, or simply not address it.

Q: Then why bother getting an AG opinion?
A: For several reasons. (1) The AG is the State's chief legal officer (State ex rel. Wolfe v. Sanders, 118 S.C. 498, 110 S.E. 808 (1920)), and the office's read of the law is taken seriously by other state agencies, the General Assembly, and litigation counsel. (2) Many statutes assign the AG specific duties that make a formal opinion the practical equivalent of an authoritative reading. (3) An AG opinion can resolve uncertainty without the cost and delay of litigation, even though it is not a court order.

Q: What does this clarification actually change about the March 27 Corn Board opinion?
A: Nothing substantive. The legal reasoning of the earlier opinion is unchanged. The clarification adds explicit language that the opinion is not a directive to any party; it interprets the law and leaves enforcement to the parties (or, if needed, to a court).

Q: What is a "composite reservoir bank account"?
A: It is not a term defined in the SC Code or regulations. The AG noted it appeared in budget resolutions. The opinion does not endorse it as a legally authorized structure, just suggests that if it works for both sides, it could be a practical alternative to litigation.

Q: What happens if the Corn Board and the Agriculture Commission cannot agree?
A: The AG points them to court. The earlier March 27 opinion stands as the AG's reading of the law, but only a court can issue an order binding both sides.

Background and statutory framework

The South Carolina Attorney General is established by the State Constitution as the chief legal officer of the executive branch. The Office's opinion-writing authority comes from three statutes:

• S.C. Code § 1-7-90 authorizes the AG to give opinions on questions of law at the request of the Governor or General Assembly.
• S.C. Code § 1-7-100 requires the AG to advise solicitors.
• S.C. Code § 1-7-110 requires the AG to consult with and advise the Public Service Commission and state officers on questions relating to their official business.

These provisions are framed as advisory. Nothing in them gives the AG the power to issue binding orders to other state agencies. State ex rel. Wolfe v. Sanders describes the AG as "the highest executive law officer of the state," not the highest judicial officer.

The non-binding character of AG opinions on courts has been settled at least since Charleston County School District v. Harrell, 393 S.C. 552, 713 S.E.2d 604 (2011), and has been restated in Op. S.C. Att'y Gen. 2014 WL 1398584 (March 25, 2014). Courts may find AG reasoning persuasive but are not required to follow it.

The underlying dispute concerned where the South Carolina Corn Board should hold the assessment funds it collects: in its own external bank account, or in a state-held account. The March 27, 2025 opinion (Op. S.C. Att'y Gen., 2025 WL 1012406) addressed the legal framework. The Corn Board's attorney sought this clarification because some parties were interpreting the March 27 opinion as a directive to close the external account.

Citations

• S.C. Code § 1-7-90 (Rev. 2005) (AG opinions to Governor / General Assembly)
• S.C. Code § 1-7-100 (Rev. 2005) (advice to solicitors)
• S.C. Code § 1-7-110 (Rev. 2005) (advice to PSC and state officers)
• State ex rel. Wolfe v. Sanders, 118 S.C. 498, 110 S.E. 808 (1920) (AG as chief executive law officer)
• Charleston County School District v. Harrell, 393 S.C. 552, 713 S.E.2d 604 (2011) (AG opinions not binding on courts)
• Op. S.C. Att'y Gen. 2014 WL 1398584 (March 25, 2014)
• Op. S.C. Att'y Gen. 2025 WL 1012406 (March 27, 2025) (underlying Corn Board opinion)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-clarifying-march-27-2025-opinion-to-the-south-carolina-commissioner-on-agriculture-and-chair-of-the-agriculture-commission-of-south-carolina-of/
• Original PDF: https://www.scag.gov/media/hriojwpx/moorej-os-11019-final-opinion-5-1-2025.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

May 1, 2025

S. Jahue Moore, Esquire
Moore Bradley Myers
PO Box 5709
West Columbia, SC 29171

Dear Mr. Moore:

Attorney General Alan Wilson referred your April 22, 2025, letter to the Opinions section for a response. On behalf of the South Carolina Corn Board, you ask that we revisit our March 27, 2025, opinion to the South Carolina Commissioner on Agriculture and Chair of the Agriculture Commission of South Carolina to make it clear that we have not directed the South Carolina Corn Board to close its external bank account and remit the funds to the state-held account established for the board. Our opinion can be located at Op. S.C. Att'y Gen., 2025 WL 1012406 (March 27, 2025). Although we stand by our original opinion, we did not and cannot direct the South Carolina Corn Board to take any particular action.

Law/Analysis

By statute, the Attorney General is charged with offering opinions on questions of law at the request of the Governor or the General Assembly. S.C. Code Ann. § 1-7-90 (Rev. 2005). The Attorney General is also required to advise solicitors regarding their duties and consult with and advise the Public Service Commission and state officers on questions relating to their official business. S.C. Code Ann. §§ 1-7-100, -110 (Rev. 2005). These advisory opinions are interpretations of the law by the chief legal officer of the Executive Branch. See State ex rel. Wolfe v. Sanders, 118 S.C. 498, 110 S.E. 808, 810 (1920) ("the Attorney General is the highest executive law officer of the state."). While we often attempt to evaluate how a court might handle a legal issue, the opinions of this office do not have the authority of a court and do not direct parties to take, cease, or refrain from any particular action. Further, the opinions of this office are not binding on a court. Charleston County Sch. Dist. v. Harrell, 393 S.C. 552, 560-561, 713 S.E.2d 604, 609 (2011); Op. S.C. Att'y Gen. 2014 WL 1398584 at *12 (March 25, 2014). To be clear, our opinion does not direct the South Carolina Corn Board, the Agriculture Commission of South Carolina, the South Carolina Department of Agriculture, or any individual employed by or associated with any of those entities to take any particular action.

Before we issued our March 27, 2025, opinion in this matter, we were advised that a composite reservoir bank account might be an option to hold the assessment funds of the commodity board. We found several references to this type of account in budget resolutions, but none in the South Carolina Code or the South Carolina Code of State Regulations. If this type of account is an option and it satisfies the concerns of the commodity board and the Agriculture Commission, it may prove to be a cost-effective alternative to litigation.

If, however, the Agriculture Commission and the Corn Board cannot reach a mutually acceptable resolution for the handling of assessment funds, then as discussed in our opinion, court is the proper and necessary forum to resolve this issue and all related questions.

Conclusion

Our March 27, 2025, opinion regarding the Commission on Agriculture and the South Carolina Corn board remains unchanged. However, the opinion should not be seen as directing any entity or individual to take a particular action.

Sincerely,

Sabrina C. Todd
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General

" Your April 22 letter also serves to withdraw your March 24, 2025 opinion request, which we received the day after we issued our earlier opinion.