Could South Carolina’s Employment Security Commission donate public funds to a charity?

Plain-English summary

The South Carolina Employment Security Commission received a request to contribute to a charitable golf tournament. The Attorney General concluded in 2008 that the commission could not make that donation or another charitable contribution because its governing statutes gave it no such power.

The opinion explained that the commission was created by statute and could exercise only authority granted expressly or by necessary implication. The statute allowing expenditures to administer employment security law did not authorize charitable gifts, and the AG found no other relevant provision that did.

Currency note

This opinion was issued in 2008. 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 the Employment Security Commission donate to the Capitol Ministries tournament? A: The AG said no. It found no express or necessarily implied statutory authority for the commission to make that charitable donation.

Q: Did the commission’s general spending power cover charitable gifts? A: The AG said its authority to make expenditures for administering employment security law did not extend to charitable donations.

Q: Did the charity’s nonprofit status change the conclusion? A: No. The request described the recipient as a tax-exempt organization, but the AG based its answer on the commission’s lack of spending authority.

Background and statutory framework

The commission’s general counsel asked about a contribution request. The AG examined the commission’s powers under its governing chapter and applied the rule that a statutory agency possesses only powers conferred expressly or by necessary implication. It found neither basis for the proposed donation.

Citations and references

Statutes: The opinion discussed Section 41-29-110.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-8-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/funderburk-h-w-jr-os-8640-9-8-08-donation-request-to-employment-security-commission.pdf

Original opinion text

HENRY M CM ASTER
A"ITORNEY G t NERAI.

September 8. 2008

H.W. Funderburk, General Counsel
South Carolina Employment Secmity Commission
Post Office Box 995
Columbia, South Carolina 29202
Dear Mr. Funderburk:
We understand from your recent letter to Attorney General Henry McMaster that the Soutb Carolina Employment Security Commission (the "Commission") received a request for a contribution from the Capitol Ministries Legislative Sports Classic Golf Toumament, whi ch is represented as a 50l(c)(3) organization. Accordingly, you request an opinion of this Office concerning "whether the Employment Security Commission is authorized under State law to expend funds for the purposes state in the donati on request." Law/ Analysis

Chapter 29 of title 41 of the South Caroli na Code governs the Employment Security Commission. Section 41-29- l 0 of the South Carolina Code ( 1986) states"[c]hapters 27 through 41 of this Title [the "South Carolina Employm ent Security Law"] shall be administered by the South Carolina Employment Security Commission." furthem1ore, the provisions contained in chapter 29 set forth the duties and autho1ity given to the Commission by the Legislature. Section 41-29-110 in particular sets forth the duties and powers of the Commission as fol lows: The Comm ission shall adm inister Chapters 27 through 4J of this Title and it may adopt, amend or rescind such rules and regulations, employ such persons. make such expenditures, require such reports as are not otherwise provided for in such chapters, make such investigations and take such other action as it deems necessary or suitable to that end. In addition. we found other provisions among sections 41-29-1 0 et seq. of the South Carolina Code providing the Commission with autho1ity. However, we did not locate a provision all owi ng the Commission to make charitable donations. Rt'MllERT C'. D er<!>.1s Bt11LD1~0

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Po sT O FFtl"E Box 11549

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CoLt:MDlA. SC 292l1- t549

• Tl.ilPHONE 803-734-3970 •

FACSIMILE 803-253-6283

Mr. Funderburk
Page 2
September 8, 2008

As the Commission is a creature of statute created by the Legislature, it possesses only such authority as is expressly conferred or necessarily implied by the Legislature. S.C. Coastal Conservation League v. South Carolina Dep't of Health and Envtl. Control, 363 S.C. 67, 610 S.E.2d 482 (2005). As we previously noted, the Commission does not have express authority to make charitable contributions. Furthermore, in our review of those powers expressly given to the Commission by the Legislature, we do not find a provision necessarily implying that the Commission may make such a donation. Accordingly, it is our opinion that the Commission is not authorized to make a donation to Capitol Ministries, or any other charitable organization. Very truly yours, Henry McMaster Attorney General

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By:

REVIEWED AND APPROVED BY:

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~ObertD:COOk
Deputy Attorney General

Cydney M. Milling
Assistant Attorney General