Could one Williamston council member order town staff to exhume a time capsule without a council vote?

Plain-English summary

Williamston’s mayor asked whether a council member could independently order town employees to exhume a town time capsule when the council had previously acted as a body on capsule matters. The AG concluded that, assuming no statute or ordinance conferred individual authority, one council member could not take that action for the town. Without a majority council vote or action, the member lacked authority to direct employees to exhume the capsule.

The opinion applied the rule that jointly conferred public authority is ordinarily exercised jointly. It did not determine whether some unmentioned law or ordinance granted the particular member separate authority.

Currency note

This opinion was issued in 2007. 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: Could one town council member decide to exhume a town time capsule? A: The AG said no on the facts assumed. Unless a law gave that member individual authority, the decision belonged to the council as a body.

Q: Could that council member instruct town employees to do it? A: The opinion said the member lacked authority to give that instruction without a majority council vote or other lawful authorization.

Q: Did the AG decide whether Williamston had delegated power to this member? A: No. Its conclusion expressly assumed that no statute or ordinance provided such authority.

Background and statutory framework

The opinion read the mayor council form of municipal government alongside earlier authority requiring collective bodies to act through their members together. It distinguished an individual member’s position from an authorized council decision.

Citations and references

The opinion cited S.C. Code Ann. § 5-9-20 and State v. McMillan.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-13-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/clardy-p-e-9-13-07-os-8441-actions-of-town-council-member.pdf

Original opinion text

September 13, 2007

The Honorable Phillip E. Clardy
Mayor, Town of Williamston
Post Office Box 70
Williamston, South Carolina 29697-0070
Dear Mayor Clardy:
We received your letter requesting an opinion of this Office concerning the actions of a particular council member. In your letter, you provided us with the following information: On July 2, 2007, Councilman Marion W. Middleton, Jr. did decide and instruct that the time capsule belonging to the Town of Williamston be exhumed. This decision , and the instruction given to town personnel, was without any authorization of the mayor or town council. Although the Town of Williamston has the MayorCouncil form of government, town council action has been required for all previous events involving the time capsule since its burial in 1976. Based on this information, you make the following two inquiries: Can, or should, a member of town council in the Mayor-Council form of government act independent of the other members of council in determining an action of this caliber that has required, in every respect, an action of town council in public forum otherwise? Can, or should, a member of town council act independent of the other member of council in instructing any employee to perform this action without proper consent of a majority of council, or at least, notification to the Mayor of this action?

The Honorable Phillip E. Clardy
Page 2
September 13, 2007

Law/Analysis
Chapter 9 of title 5 of the South Carolina Code governs mayor-council forms of municipal government. Under this form of government, the duties, functions, and responsibilities of the municipality are exercised by the members of council and the mayor. S.C. Code Ann. § 5-9-20 (2004). Our Supreme Court has recognized that when authority is given jointly to several persons, “‘they must generally act jointly or their acts are invalid.’” State v. McMillan, 52 S.C. 60, 29 S.E. 540, 545 (1898) (quoting Cooley v. O’Connor, 79 U.S. 391, 398 (1870)). Furthermore, in an opinion of this Office pertaining the delegation of authority of a body to one of its members, we stated: “[A]cts by individual members of a public body cannot bind the municipality unless officially sanctioned in accordance with a statute. The member of the governing body are chosen by the people to represent the municipality and they are charged with a public trust and the faithful performance of their duties and the public is entitled to the judgment and discretion of each member . . . .” Op. S.C. Atty. Gen., November 13, 2003 (quoting 56 Am. Jur. 2d, Municipal Corporations, § 134). In a similar opinion of this Office issued in 1989, we addressed the authority of a single member of a local public works commission. Op. S.C. Atty. Gen., April 13, 1989. We found: “Unless otherwise provided by statute, the authority of a commission may not be exercised by a single member of such body, or less than a majority.” Id. Thus, we concluded a single member of the commission did not have authority to make decisions concerning direction and control of the water and sewer department on his own by virtue of the fact that he was elected while the other commissioners were appointed. Id. Rather, “all such decisions must be made by a majority vote of a quorum of the commissioners of public works, except where the Town ordinance provides otherwise.” Furthermore, in another opinion, we recognized with regard to city and town councils, that “any action taken by the City Council will have to be done by the majority vote thereof . . . .” Op. S.C. Atty. Gen., March 5, 1963. Based upon these principles cited above, we do not believe a single council member may individually take action on behalf of a town unless such authority is provided to that council member by law. Therefore, in addressing your questions, assuming no statute or ordinance provided councilman Middleton with authority to exhume the time capsule, it appears that such action may only be taken by Town Council as a whole. Without the vote or action of a majority of the members of council, councilman Middleton would be without the authority to instruct Town employees to exhume the time capsule.

The Honorable Phillip E. Clardy
Page 3
September 13, 2007
Very truly yours,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General