Can a Jasper County, South Carolina elected treasurer hire his own outside lawyer (separate from the county attorney) and bind the county to pay the bills?

Plain-English summary

Jasper County's Interim County Attorney asked the AG whether the County Treasurer can hire and pay his own outside legal counsel without going through county council. Three issues: (1) authority to retain counsel; (2) authority to enter into a contract on behalf of the county; (3) county obligation to pay bills the treasurer racks up.

The AG's answer is structured around the separation between executive and legislative power at the county level:

Authority to retain counsel. As a general rule, when a county has a county attorney by ordinance (Jasper does, § 2-69), no other county agency or officer can hire outside counsel without council approval. There is a narrow exception when the county attorney refuses, is conflicted, or is incapable of acting and the matter is in the public interest. The exception is fact-driven; the AG's office cannot make findings about whether the exception applies in a specific case.

Authority to contract. South Carolina law makes "the authority to make and execute contracts" a county council power, not a treasurer power (S.C. Code § 4-9-30(3)). The S.C. Constitution's separation-of-powers provision and the rule that money may only be drawn by legislative appropriation reinforce this. Jasper's contracting ordinance further restricts the treasurer's authority. The treasurer cannot enter into contracts for special services (including legal services) without county council approval.

Obligation to pay. The county is not obligated to pay legal bills the treasurer incurred without authority. The county can ratify them after the fact if council determines the representation was for a public purpose, but ratification is a council decision, not a treasurer's. The Florence County case (Fowler v. Florence County) reached the same conclusion. The AG also notes that some attorney's fee awards may be available under S.C. Code § 15-77-300 if the treasurer prevails in litigation against the county.

The opinion does not endorse any particular outcome on the underlying invoices; it sets the legal framework and leaves the factual application to the county.

What this means for you

If you are a South Carolina county treasurer (or other county elected officer) considering hiring outside counsel

You almost certainly need county council approval first. The general rule, and the specific Jasper County ordinance, tell you to seek approval before retaining counsel. If you proceed without approval, you should expect the county to refuse payment unless and until council ratifies the bills.

The narrow exception applies only when:

1. The county attorney refuses to act, or is conflicted, or is incapable of acting; AND
2. The matter is in the public interest and within your official duties; AND
3. You are acting in good faith on behalf of the county.

If your situation meets all three, document the circumstances. Better practice: ask council to formally find that the county attorney has a conflict and to authorize alternative representation. That preserves your authority and removes the after-the-fact payment risk.

If you are a county council member faced with bills from an officer who hired outside counsel without prior approval

Three options:

1. Find that the representation was for a public purpose and ratify the bills. This is the cleanest path if you agree the representation was warranted.
2. Find that the representation was not for a public purpose and refuse payment. The officer (or counsel) may then have to pursue payment elsewhere (private fees, statutory fee awards, etc.).
3. Appoint alternate counsel for the future to avoid recurrence.

The AG's opinion is clear that ratification is your decision. The treasurer cannot force payment by simply running up bills.

If you are county counsel advising on a treasurer's outside-counsel decision

Walk the treasurer through the framework before any retention happens. The risks are real:

• Personal liability. If the bills are not paid by the county, the treasurer may be personally on the hook to the lawyer.
• Litigation cost. A bill dispute typically goes to court if not resolved at council, and the treasurer may have to fund litigation against the county.
• Public scrutiny. The treasurer's role as a custodian of public funds gets harder to defend if hiring choices appear to be unilateral.

When the county attorney does have a conflict, the right move is to coordinate with council to formally appoint alternate representation. That preserves authority and removes the payment risk.

If you are a private attorney being asked to represent a county elected officer

Verify that council has approved the engagement. If not, your client may have personal exposure for fees if council later refuses payment. Engagement letters should clarify who is paying and what happens if council refuses to ratify.

Common questions

Q: Can a county treasurer reallocate funds appropriated to his office to pay for outside counsel?
A: No. Even if the treasurer has appropriated funds in his office's budget, those funds were appropriated for specific purposes by council. The treasurer cannot reallocate to a different purpose without council's approval. Section 4-9-140 expressly requires council approval for transfers of appropriated funds.

Q: What happens if council refuses to pay legal bills incurred by the treasurer?
A: The bills may be unpaid. The lawyer may be left looking to the treasurer personally, to council via a lawsuit, or to a court determination of whether the representation was for a public purpose. The Fowler v. Florence County case (2012, S.C. Court of Common Pleas) reached this kind of result.

Q: Are there situations where the county must pay even if the treasurer prevailed?
A: Yes, in some litigation contexts. S.C. Code § 15-77-300 permits an award of attorney's fees in actions against the state or its political subdivisions in defined circumstances. The Eargle and Heath cases address some applications. Counsel should review those cases for your specific situation.

Q: Why is the contracting authority concentrated in the council?
A: South Carolina Constitution art. X § 8 (money may be drawn only by appropriation) and art. I § 8 (separation of powers) together establish that legislative appropriation, not executive will, controls the spending of public funds. Section 4-9-30(3) implements this at the county level by giving council the authority to make and execute contracts.

Q: Could the county council say in advance that the treasurer can hire counsel up to a certain amount?
A: Yes, the council could delegate that authority by ordinance. But it has not in Jasper County (where the ordinance § 2-69 specifically reserves that authority).

Background and statutory framework

The opinion sits at the intersection of several layers of authority:

Constitutional layer. S.C. Const. art. I § 8 separates legislative, executive, and judicial powers. Art. X § 8 says money may be drawn from any state or political subdivision treasury only by appropriation. The S.C. Supreme Court in Gilstrap v. S.C. Budget & Control Bd. (1992) confirmed: "The appropriation of public funds is a legislative function."

Statutory layer. Section 4-9-30(3) gives counties (acting through council) the power "to make and execute contracts." Section 4-9-140 requires council approval for transfers of appropriated funds. Section 15-77-300 provides attorney's fees in certain actions.

Local ordinance layer. Jasper County Ordinance § 2-69 (county attorney exclusivity), § 2-404 (contracting authority limited to county administrator under $25K and council above), § 2-413 (special services, including legal advice, requires council approval). Jasper has implemented the state framework with strong council control.

General rule. Per the AG's 1985 Opinion (1985 WL 259128) and the Maricopa County / McQuillin treatise, when a statute or ordinance authorizes a county attorney to handle the legal business of the county, "contracts with other attorneys for legal services are void."

Narrow exception. The Coventry School Committee case (R.I. 1980) recognizes "implied authority" of a local government board or officer to hire counsel when the local-government attorney refuses, is incapable, or is disqualified. The exception applies only "in the good faith prosecution or defense of an action taken in the public interest and in conjunction with [the] official duties."

Florence County analog. The S.C. Court of Common Pleas's Fowler v. Florence County (2012) addressed essentially the same question. The court held that a county treasurer's attempt to alter line-item appropriations and reallocate funds to pay for outside counsel was "appropriating money," which is council's exclusive purview, even if the change was "budget neutral."

Citations and references

Statutes and Constitution:
- S.C. Const. art. I § 8 (separation of powers)
- S.C. Const. art. X § 8 (money by appropriation)
- S.C. Code § 4-9-30 (county powers)
- S.C. Code § 4-9-140 (transfers of appropriated funds)
- S.C. Code § 15-77-300 (attorney's fees)

Cases:
- Gilstrap v. S.C. Budget & Control Bd., 310 S.C. 210, 423 S.E.2d 101 (1992)
- Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967)
- Paslay v. Brooks, 198 S.C. 345, 17 S.E.2d 865 (1941)
- Eargle v. Horry Cnty., 344 S.C. 449, 545 S.E.2d 276 (2001)
- Heath v. Aiken Cnty., 295 S.C. 416, 368 S.E.2d 904 (1988)
- Fowler v. Florence County and Starks, 2010-CP-21-01248 (S.C. Ct. Com. Pl. Apr. 18, 2012)

Out-of-state authority:
- Bd. of Supervisors of Maricopa County v. Woodall, 120 Ariz. 379, 586 P.2d 628 (1978)
- Coventry School Committee v. Richtarik, 411 A.2d 912 (R.I. 1980)

Prior AG opinions:
- 1985 WL 259128 (Feb. 15, 1985); 2011 WL 1740743 (Apr. 29, 2011); 2007 WL 419432 (Jan. 8, 2007); 1978 WL 34687 (Feb. 7, 1978); 1977 WL 24548 (July 1, 1977); 2003 WL 21040130 (Feb. 19, 2003)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-a-constitutional-officer-s-authority-to-retain-and-pay-independent-legal-counsel/
• Original PDF: https://www.scag.gov/media/pp4n2uxo/flynn-4-6.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

April 6, 2026

Mr. Lawrence E. Flynn, Esq.
Interim Jasper County Attorney
PO Box 11509
Columbia, SC 29211

Dear Mr. Flynn:

Attorney General Alan Wilson referred your letter to the Opinions section for a response. You seek an opinion regarding whether the Jasper County Treasurer has the authority to hire independent legal counsel to represent his office, whether the County Treasurer has the authority to enter into a contract on behalf of the county for independent legal counsel hired to represent his office, and whether the county is obligated to pay debts incurred as a result of the County Treasurer hiring independent legal counsel to represent his office.

On March 27, we received a letter from Jasper County Treasurer Michael T. Skinner providing additional information regarding this request.

The first issue you raise regards a county official's authority to retain legal counsel other than the county attorney. This Office has previously observed that, as a general rule, "where a statute [or ordinance] authorizes legal counsel charged with the duty of conducting the legal business of a governmental agency, contracts with other attorneys for legal services are void." Op. S.C. Att'y Gen., 1985 WL 259128 at *1 (Feb. 15, 1985) (citing Board of Supervisors of Maricopa County v. Woodall, 120 Ariz. 379, 586 P.2d 628 (1978); 10 McQuillin, Municipal Corporations, § 29.12 (3 ed.)). Jasper County has an ordinance which provides for the employment of a county attorney and specifically states, "No county agency, commission, board, department, or committee shall employ an attorney other than the county attorney unless specifically authorized by the county council." Jasper County Ordinances § 2-69 County Attorney. The Jasper County Treasurer's office is a "county agency, commission, board, department, or committee;" therefore, the County Treasurer does not have general authority to retain independent legal counsel to represent his office absent the approval of county council.

However, as this Office opined in 1985, "[i]n certain extenuating circumstances, there is a well established exception to this general rule [barring the hiring of independent legal counsel]." Op. S.C. Att'y Gen., 1985 WL 259128 at *2. The exception "recognizes the implied authority of a [local government] . . . board or officer to hire counsel in the good faith prosecution or defense of an action taken in the public interest and in conjunction with its or his official duties where the . . . [local government's] attorney refuses to act or is incapable of or is disqualified from acting." Id. (quoting Coventry School Committee v. Richtarik, 411 A.2d 912, 916 (R.I. 1980)). Thus, in certain circumstances, a county official, such as the County Treasurer, has implied authority to hire independent legal counsel when doing so is necessary to prosecute or defend a case brought in the public interest within his official duties and the county attorney cannot handle the matter.

This Office is unable to find facts. As we have stated in prior opinions, "[b]ecause this Office does not have the authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual questions." Op. S.C. Att'y Gen., 2003 WL 21040130 at *1 (Feb. 19, 2003). As a result, though you have provided invoices detailing the bills incurred by the Jasper County Treasurer, the information on those invoices does not provide enough information to determine whether those bills stem from work which would fall into the exception laid out above, nor do we have the authority to make such a determination.

Regarding the second issue you raise, which addresses the authority of the County Treasurer to enter into contracts and obligate the county to spend money in a particular manner, the law on this point is clear and settled, the South Carolina General Assembly has explicitly provided that the authority "to make and execute contracts" belongs to county council, not to the county treasurer. S.C. Code Ann. § 4-9-30(3). The exclusivity of this authority stems naturally from the county council's plenary power over the county treasury. The county council is the only body charged with allocating and appropriating county funds, so the county council must control the authority to commit those funds, contractually or otherwise. Moreover, Article I, Section 8 of the South Carolina Constitution provides for a separation of powers stating:

In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.

S.C. Const. art. I § 8. Article X, Section 8 then provides that "[m]oney shall be drawn from the treasury of the State or the treasury of any of its political subdivisions only in pursuance of appropriations made by law." Id. (emphasis added). The South Carolina Supreme Court has unequivocally ruled, "The appropriation of public funds is a legislative function." Gilstrap v. S.C. Budget & Control Bd., 310 S.C. 210, 216, 423 S.E.2d 101, 105 (1992) (citations omitted). The County Treasurer is an executive, not a legislator, and therefore cannot properly exercise any authority over the appropriation of public money.

Furthermore, Jasper County Council has only delegated its authority to enter into contracts on behalf of the county to the County Administrator and County Council. See Jasper County Ordinances § 2-404 Contraction/purchasing authority ("The following officials shall have the authority to enter into contracts on behalf of the county.... No other person, county employee, agency or department shall enter into a contract on behalf of the county except as listed below: (1) Contracts not exceeding $25,000.00: The county administrator shall have the authority to enter into such contracts. This authority does not extend to contracts for special services. (2) Contracts in excess of $25,000.00 and all contracts for special services: Only the county council has the authority to enter into these contracts."). While County Council has adopted slightly different rules for special services, which includes legal advice and representation, the County Treasurer is not authorized to enter into contracts for special services without County Council's approval. See Jasper County Ordinances § Sec. 2-413 Authority to Contract for Special Services. Thus, in addition to the state law prohibitions on the County Treasurer appropriating funds, Jasper County has not given the County Treasurer's the authority to contract for legal services absent their approval.

In his letter, the County Treasurer suggests that "once funds are appropriated to an elected office, the administration of such funds rests with the elected official." Moreover, he states, "once funds are appropriated, they are to be used for the operation of the office for which they were designated." In so saying, he asserts that he has authority to use money appropriated to his office for any purpose, regardless of what County Council has appropriated it for, as long as it is in support of his office's statutory duties. As discussed below, this contention is without merit.

The County Treasurer is correct that County Council may not use its budgetary powers to interfere with his ability to carry out his duties. Previously, this Office determined "with regard to the budgets of elected officials, county councils 'cannot so decrease the appropriations of an elected official's office as to prevent the proper functioning thereof and, thus, indirectly, to abolish that official's office.'" Op. S.C. Att'y Gen., 2011 WL 1740743 at 2 (Apr. 29, 2011); see also Op. S.C. Att'y Gen., 2007 WL 419432 at 4 (Jan. 8, 2007). In short, county councils are precluded from exercising their appropriation authority in such a way that undermines the independence of constitutional officials who are not under the council's authority and supervision; however, this limitation does not wholly prevent them from appropriating funds and establishing the conditions under which those funds may be spent. Should the County Treasurer believe the funds appropriated to his office need to be reallocated, S.C. Code Section 4-9-140 provides, "The provisions of this section shall not be construed to prohibit the transfer of funds appropriated in the annual budget for purposes other than as specified in such annual budget when such transfers are approved by council." S.C. Code Ann. § 4-9-140 (emphasis added). The County Treasurer may obtain approval to reallocate money in furtherance of his office's duties, but in the absence of county council's approval, the County Treasurer may not reallocate the funds appropriated to his office.

Despite his assertions to the contrary, the County Treasurer's arguments regarding appropriations are substantially the same as the arguments raised and rejected in Fowler v. Florence County and Starks. See Order filed April 18, 2012, 2010-CP-21-01248 (S.C. Court of Common Pleas). In Fowler, the Florence County Treasurer attempted to alter line-item appropriations and reallocate funds to pay for independent legal counsel for his office. The Circuit Court ruled that so doing, even if it was "budget neutral," constituted appropriating money and was therefore exclusively within the purview of the County Council. All of the logic laid out in Fowler applies here, so we believe a court would likely rule that the County Treasurer lacks the authority to obligate the county to pay for independent legal representation of his office, absent the approval of county council.

Finally, we consider the question of whether Jasper County Council is obligated to pay legal fees incurred as a result of the County Treasurer's hiring of independent legal counsel. First, it must be noted that "No governing body may spend public funds for a private purpose, or beyond its corporate purpose." Op. S.C. Att'y Gen., 1985 WL 259128 (Feb. 15, 1985) (citing Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967) and Paslay v. Brooks, 198 S.C. 345, 17 S.E.2d 865 (1941)). The county "may not employ counsel [or pay counsel with public funds] in matters in which it is not directly interested or which lie outside its corporate purpose." Id. (quoting 56 Am. Jur. 2d, Municipal Corporations, § 220). Thus, the County may not expend any public funds on the County Treasurer's legal fees if the County Council determines that the representation does not relate to a public purpose. As this Office has previously stated, "determination of whether or not the [matter is one in which the local government] . . . is directly interested, and consequently, a matter which involves public purpose . . . is to be made by the governing body subject of course, to final determination by a court of competent jurisdiction if challenged." Op. S.C. Att'y Gen., 1985 WL 259128 (Feb. 15, 1985) (quoting Op. S.C. Att'y. Gen., 1977 WL 24548 (July 1, 1977)).

If the County Council does determine that the bills incurred by the County Treasurer relate to legal representation which the County Treasurer had authority to engage and were incurred for a public purpose, then we see no reason that the County Council could not ratify those bills and thereby approve the appropriation. Such a determination would, however, have to be made by the County Council.

Notably, if the County Treasurer undertakes litigation against the County and prevails, there are certain circumstances where the County may be made to pay the legal fees pursuant to S.C. Code Section 15-77-300. See e.g., Eargle v. Horry Cnty., 344 S.C. 449, 456-457, 545 S.E.2d 276, 280-281 (2001) and Heath v. Aiken Cnty., 295 S.C. 416, 420-421, 368 S.E.2d 904, 906 (1988). We would encourage you, and County Council, to review these cases and determine how their holdings might apply in this situation.

Sincerely,

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General Emeritus

CC: Jasper County Treasurer Michael T. Skinner