Could South Carolina’s law-enforcement training council create a separate officer-certification hearing panel?

Plain-English summary

In 2010, South Carolina's Criminal Justice Academy asked whether the State Law Enforcement Training Council could establish a separate agency hearing panel for officer-certification disputes. The proposed panel could include council representatives or outsiders, with the full council reviewing its recommendations. The AG said the council lacked authority to establish that separate contested-case hearing procedure under the statutes it reviewed. Promulgating a regulation would not, by itself, create a power the legislature had not given.

The opinion drew on a 2005 AG opinion about an advisory committee for veterinary licensing complaints. It reasoned that a committee exercising discretionary functions, even in an advisory capacity, needed statutory authority. The AG said specific legislation would be the better course if the council wanted the proposed panel.

Currency note

This opinion was issued in 2010. 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

Could the council create a separate certification panel by regulation? A: The AG said no under the authority it reviewed. A regulation could not add a power absent from the enabling law.

Would full-council review of the panel's recommendations cure the problem? A: The request assumed full-council review, but the AG still concluded that a separate hearing panel lacked authority.

Did the opinion address outsiders serving on the panel? A: Yes. The request included nonmembers, and the earlier opinion the AG relied on viewed private participation in a discretionary advisory committee as especially problematic without statutory authorization.

What legal route did the AG identify?
A: It said the council should seek legislation specifically authorizing the hearing procedure if it wanted to establish one.

Background and statutory framework

The Training Council had statutory power to certify officers and suspend or revoke certification under regulations. The question was whether it could move an agency-level contested hearing before a separate panel. The AG applied a prior advisory-committee analysis: agencies could use only granted or reasonably implied powers and could not alter statutes through rules or policy.

Citations and references

The opinion discussed South Carolina Code section 23-23-80, Department of Public Safety Regulation 38-106, and a January 27, 2005 AG opinion about an investigative review committee.

Official title

September 16, 2010

Requester

the Administrative Procedures Act ("the APA")and the establishment of an agency level due process hearing (contested case hearing) procedure with regard to law enforcement officer certification decisions. And "whether having such a due process hearing at the agency level would comply with the requirement of the APA if the hearing panel was made up with representatives for the Training Council members or other individuals who are not Training Council members or representatives of Training Council members".

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-16-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/harrell-h-f-os-9123-9-16-10-administrative-procedures-act-agency-level-due-process-hearing.pdf

Original opinion text

HENRY McMASTBR
ATIORNEY GENERAL

September 16, 2010

Hubert F. Harren, Director
South Carolina Criminal Justice Academy
5400 Broad River Road
Columbia, South Carolina 29212-3540
Dear Mr. Harrell:
In a letter to this office you indicated that the State Law Enforcement Training Council is reviewing the Administrative Procedures Act (hereinafter "the APA") in considering the establishment of an agency level due process hearing (contested case hearing) procedure with regard to law enforcement officer certification decisions. Such would arise, for instance, where there has been some type of misconduct by a certified officer that would be reviewed for possible license revocation, suspension, etc. You indicated that guidance is requested "as to whether having such a due process hearing at the agency level would comply with the requirement of the AP A ifthe hearing panel was made up with representatives for the Training Council members or other individuals who are not Training Council members or representatives ofTraining Council members." You indicated that for purposes of the question, jt is to be assumed that the full Trainjng Council would review a recommendation from the panel members following the hearing and would decide whether to adopt the panel recommendations, reject the panel recommendations, amend the panel recommendation, or send the case back to the hearing panel for additional evidence. In a telephone call to Ms. Brandy Duncan, she indicated that your agency would promulgate a regulation authorizing such a procedure prior to its implementation. Pursuant to S.C. Code Ann.§ 23-23-80, the State Law Enforcement Training Council
.. .is authorized to ...(6) certify and train qualified candidates and applicants for law enforcement officers and provide for suspension, revocation, or restriction of the certification, in accordance with regulations promulgated by the council; .... The manner for withdrawal of certification of a law enforcement officer is set forth in Department of Public Safety Regulation 38-1 06. Enclosed please find a copy of a prior opinion of this office dated January 27, 2005 which is responsive to your inquiry. That opinion dealt with the question of the legality of an entity called the IRC (Investigative Review Committee) operating in conjunction with the BOE (Board of

REMBERT

c.D Et-iNlS B mLD!NG • POST OJ'FICB Box ll549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMlLB 803-253-6283

Mr. Harrell
Page2
September 16, 2010
Veterinary Medical Examiners) within the Department of Labor, Licensing and Regulation. Reference was made to the fact that The BOE is the duly authorized and appointed body that licenses and disciplines the practice of veterinary medicine in South Carolina. Apparently, LLR has assumed its own authority to create the IRC to act as a "grand jury" to assess the merits of consumer complaints against licensed veterinarians. The IRC is composed of former BOE members chosen by the staff at LLR. The IRC makes recommendations to BOE whether to move forward with hearings. As referenced in that opinion, "[g]ovemmental agencies ... can exercise only those powers conferred upon them by their enabling legislation or constitutional provisions, expressly inherently or impliedly." Moreover, as set forth, " ... an administrative agency - either through regulation or policy - may not amend, modify or add to a statute." The opinion further states that
[o ]ur research reveals that, typically, the power of a professional licensing board to subdelegate authority to a committee to make recommendations regarding disposition of disciplinary matters has been by express statutory enactment. Reference was made to the fact that in specified instances cited in the opinion, authority relating to other advisory committees is expressly provided for by statute. The opinion concludes as follows: We have located no statutory provision which expressly grants authority for the creation of the Investigative Review Committee of the Board of Veterinary Examiners, nor are we aware of any statute from which such authority may be reasonably implied. It is thus our opinion that a court would most likely conclude that there is no current statutory authority for the creation of the IRC. Of course, our opinion is, by definition, advisory and only a court could definitively conclude that the IRC is lacking in statutory authority. However, absent such express statute authorizing the creation of the IRC, and legislation specifying the composition, powers and duties of such a body, a court is unlikely to uphold the validity of the Committee as presently constituted. Furthermore, we have identified no duly promulgated regulation of the Board which incorporates the IRC into the complaint process.

It is true that the IRC's role is advisory; the Committee serves to make recommendations to the Board of Examiners as to the disposition of complaints concerning violations of the law regulating veterinarians. Moreover, it is also the case that such bodies are increasingly becoming more common as a means of further separating the adjudicatory and investigative functions of a licensing board in order to meet the requirements of due process. See, Garris, supra; Baldwin v. S.C. Dept. of Highways and Public Transp., 297 S.C. 232, 3 76 S.E.2d 259 (1989). Nevertheless, it is well recognized that the authority for such an advisory committee must be found

Mr. Harrell
Page3
September 16, 2010
in existing statutes. Our research reveals that committees of this type are usually expressly authorized by statutory law because the creation of such bodies which exercise discretionary duties is a function of the Legislature rather than an administrative agency. Case law and opinions of other Attorneys General conclude that, absent specific statutory authority for the creation ofthese committees, no power exists therefor. In our view, this is a sound rule and one which is faithful to the fundamental principle that only the General Assembly may enact the law. Here, the Committee obviously exercises discretionary functions, albeit in an advisory capacity. Of particular concern is the fact that the IRC is made up, in part, of "three consulting veterinarians," members who are neither Board members or employees ofthe Board. Such private membership renders the IRC's status even more problematical. See, Neb. Op. Atty. Gen., Op. No. 02024 (August 20, 2002) [authority to create "enforcement committee" consisting primarily of non-Board personnel is particularly questionable where such committee would exercise discretionary functions]. The authority for the creation of such a body must thus, in our judgment, come from the General Assembly. Accordingly, finding no express authority for the creation of the IRC, we doubt whether a court would conclude that such authority exists or may be implied from existing law. Consistent with such opinion, in the opinion of this office, the State Law Enforcement Training Council would not be permitted to authorize the establishment of an agency level due process hearing (contested case hearing) procedure separate from the Training Council with regard to law enforcement officer certification decisions. If such is desired, the better course would be to seek legislation specifically authorizing such a procedure. With kind regards, I am, Very truly yours, Henry McMaster

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~6-Charles H. Richardson

Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General