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State Law and Beyond

SC Municipal Clerks and Treasurers Institute

Session 3B – September 13, 2018

Presented by: Jeff Shacker, Field Services Manager

Civics 101

Article 10 - U.S. Constitution

“The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, arereserved to the States respectively, or to the people.“

What does this mean?

Any powers not explicitly given to the federalgovernment in the Constitution belong to the states

Civics 101

S.C. Constitutional Amendments

In 1973, the General Assembly passed substantialrevisions to the 1895 South Carolina Constitution,including a new local government article, Article VIII

Article VIII – S.C. Constitution

General law establishes the structure, organization,powers, duties, functions and responsibilities ofmunicipalities. Section 9

The information provided here is for informational and educational purposes and current as of the date of publication. The information is not a substitute for legal advice. Consult your attorney for advice concerning specific situations.

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Civics 101

Local Government Act

o Adopted by the General Assembly in 1975

o Popularly known as The Home Rule Act

o Framework of Laws to implement 1973constitutional changes

Civics 101

The Home Rule Act provides:

o Greater uniformity for cities and towns

o Expanded freedom and flexibility to control localaffairs

SC courts have ruled municipal powers are to be liberallyconstrued in favor of municipalities particularly in recent years

Ensuring Consistency with State and Federal Laws

Wide array of resources available today to makefinding and interpreting state law and courtopinions a much easier task

These resources also make preparingrecommendations for council and writingordinances, policies and new business practicesmuch easier

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Handbook for Municipal Officials in S.C.

Recommend that this be your first stop whenresearching a municipal issue

User friendly guide organized into subject matterchapters

Has a comprehensive index

PDF copy features table of content with links

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State Law and Beyond

Where To Find The Law

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Interpreting State Law

To comply with State Law it is essential that youunderstand the requirements of the law

By statute, the Governor, members of the GeneralAssembly, and other public officials are entitledto legal advice from the S.C. Attorney General’sOffice

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S.C. Attorney General Opinions

Unlike a court, Attorney General opinions cannotdecide legal disputes

An Attorney General opinion has no more weightthan an attorney’s opinion except that attorneys inthe AG’s office specialize in interpreting state law

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Court Opinions and Orders

o When facts are in dispute or theparties involved do not agree as tothe interpretation of the law – lawsuits arise

o Rulings at a circuit court level donot establish statewide precedent

o Rulings at the Appeals Court and Supreme Courtlevel do establish statewide precedent

o Opinions and Orders of the S.C. Court of Appealsand the S.C. Supreme Court can be found on thewebsite of the S.C. Judicial Department

o Select Opinion/Order tab, published opinions andthen the court where the case was heard

Court Opinions and Orders

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Preemption Analysis

o Express Preemption occurs “when the GeneralAssembly declares in express terms its intentionto preclude local action in a given area.”

o Implied Field Preemption occurs "when the statestatutory scheme so thoroughly and pervasivelycovers the subject so as to occupy the field orwhen the subject mandates statewide uniformity."

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Ordinance vs. Resolution: Unless required by general law, council may acteither by ordinance or by resolution. § 5-7-260.

Ordinance: a law made by a municipality or other local authority.

Use of ordinances is not restricted to adopting laws. They are often usedwhen adopting a rule or policy with broad applicability, significant impactand an extended duration

Resolution: a formal expression of council’s opinion, will or intent on anissue that are usually adopted in written form to document Council’sopinion, will or intent.

The Ordinance vs. Resolution Dilemma

In substance, there is no difference in effect between a written resolution ora verbal motion approved by council.

Adoption of a resolution requires a single vote of a municipal council

The policy or position expressed in a resolution is generally considered tohave a limited duration because it can be changed at any time by a singlevote of council

More About Resolutions

Ordinances must be codified, indexed, typewritten or printed, maintained ina current form, reflect all amendments or repeals, and be available for publicinspection at reasonable times § 5-7-290.

Ordinances, resolutions or regulations must be consistent with the federaland state constitutions and with the general laws of South Carolina and theUnited States

If state law does not require use of an ordinance, council can choose to usean ordinance or a resolution

Decision should be based on the intended duration and impact of theproposed action

More About Ordinances

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Procedural Requirements for Ordinances:

• Must be introduced in writing and in the required format for adoption

• Must be read at least twice on two separate days with at least six daysbetween each reading

• If local rules of procedure call for three readings or any otheradditional step, council must follow the requirement

How to Amend an Ordinance

• An adopted ordinance may only be amended by another ordinance

• All legal requirements for a new ordinance must be followed

Procedural And Amendment Requirements

• Annexing property (§ 5-3-150, § 5-7-300)

• Setting salaries for council (§ 5-7-170)

• Conducting municipal elections (§ 5-15-10)

• Adopting standard codes (§ 5-7-280, § 6-9-60)

• Adopting council rules of procedure (§ 5-7-270)

• Adopting procurement ordinances (§ 11-35-50)

• Adopting a comprehensive plan, zoning and land developmentregulations. (§ 6-29-310, et seq.).

What Requires An Ordinance?

• Adopt or amend an administrative code

• Establish, alter or abolish any municipal department or office

• Provide for a fine or other penalty or establish a rule or regulation inwhich a fine or other penalty is imposed for violations

• Adopt budgets and levy taxes (Property tax otherwise provided for)

• Grant, renew or extend franchises

• Authorize the borrowing of money

• Sell, lease or contract to sell or lease any lands of the municipality.

Additional Actions Requiring Ordinances

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Today’s technology and the Internet makes research and drafting easier

But be careful…Internet topic searches will produce national results

Must consider differences in state laws that may invalidate use of out ofstate ordinances in S.C.

Safer approach is to look at similar municipalities in S.C.

Allows you to pick and choose the best parts of peer city ordinances andincorporate them into your draft ordinance

Drafting Ordinances

A couple of examples of online code libraries:

• Municipal Code Corporation which lists the codes of over80 municipal clients in South Carolinahttp://www.municode.com/Library/SC

• American Legal publishing which lists the codes of close to20 municipal clients in South Carolinahttp://www.amlegal.com/library/sc/index.shtml

On-Line Municipal Codes

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State Law and Beyond

Questions