Calhoun County Council: Attorney clarifies admin’s powers

County attorney J. Michael Montgomery said Calhoun County had the authority to establish the office of county administrator based on a county ordinance passed in 1979.

Montgomery sent the opinion to Calhoun County resident Amy Hill in November after Hill questioned if the county could legally establish the position of county administrator under the council form of government, which is the county’s form of government.

Hill, who runs Sandy Run News, has asked council to address the issue of the administrator’s duties and responsibilities after county Administrator John McLauchlin took some actions without receiving an official vote from council.

“Calhoun County Council may need to consider defining clear limitations for the office of the administrator of the county council regarding the duties so that liberties are not taken by anyone holding the position now or in the future,” Hill said in an email sent to some county residents. Hill did not disclose the number of citizens reached in her email list.

McLauchlin has defended his actions as within the scope of his delegated duties.

“There is nothing new or different,” McLauchlin said, noting the duties have been in place for 43 years and have not been questioned until recently.

“Certainly no administrator is taking advantage of any of it,” he said.

The specific actions Hill questioned include:

• The tearing down of the county fire commission’s burn training facility without a council vote. The county at one time had a burn facility where firefighters could train.

McLauchlin said he received verbal approval to tear the building down after receiving complaints from neighbors about the smoke from the building.

“We got council approval to do it,” McLauchlin said. “We didn’t have to get council approval under our ordinance. We don’t abuse it. We are never going to get out on that limb. Even at a couple thousand dollars, I went in front of council.”

• Transferring funds without a council vote. Hill would not attest that this is being done, but said it is an issue that needs to be monitored.

The county’s current policy allows the county administrator to transfer up to $20,000 without council approval, though there is no monetary limit currently spelled out in law.

“It is not codified,” County Deputy Administrator Richard Hall said. “That is not in an ordinance. It is not anywhere. It may have been at one time, but it is not currently.”

Both Hall and McLauchlin say the policy has always been followed, but agreed there is a need to codify the matter.

“There has got to be a number established,” McLauchlin said. “We have always used $20,000.”

“There is no situation here which has been abused or misused,” McLauchlin said.

Hall said the county is working toward codifying a monetary transfer cap on what an administrator can transfer.

“It is honestly scary that a rogue administrator can commit the county to any number of amount of money with no repercussions,” Hall said.

• Possibly signing contractual agreements committing taxpayer or grant resources without a council vote.

Hill claims the 50-year lease the county signed with the Heyward Community Alliance should have gone before council for a vote because the transaction committed public funds, received grant funds and spent capital project sales tax funds.

County Council acknowledged a mistake was made and committed itself to officially approving the contract. Council did approve the contract at its Dec. 12 meeting.

Under the Calhoun County Code of Ordinances approved in March 1979, the following powers and duties are delegated to a county administrator:

• To serve as the chief administrative officer of the county government.

• To execute the policies, directives and legislative actions of the council.

• To direct and coordinate operational agencies and administrative activities of the county government.

• To prepare annual operating and capital improvement budgets for submission to the council and, in the exercise of that authority, be empowered to require such reports, estimates and statistics on an annual or periodic basis as he deems necessary from all county departments and agencies for the performance of his duties in budget preparation.

• To supervise the expenditure of appropriated funds.

• To prepare annual, monthly and other reports for council on finances and administrative activities of the county.

• To be responsible for the administration of county personnel policies, including salary and classification plans approved by council.

• To be responsible for employment and discharge of personnel subject to the provisions of state law, the appropriation of funds by the council for that purpose and approval of the council.

• To perform such other duties as may be required by the council.

The administrator’s authority became an issue during the November general election when Calhoun County voters were asked if they wanted to keep the present council form of government or to replace it with a council-administrator form of government.

Voters decided by a total of 3,270 votes to 2,120 votes to keep the current council form of government.

County officials have said the change would have allowed the county to operate more efficiently, taken the burden off of elected officials to have to answer questions about day-to-day county administrative operations and better delineated duties of the county administrator.

County officials also note that Calhoun County is not the only county in the state that has sought a change to the council-administrator form of government.

“This is the modern-day way of running a county,” McLauchlin said.

Opponents of the change said it would distance citizens from their elected representatives and lessen government “of the people, by the people for the people.”

The county, which operates under a council form of government, has functioned with a paid county administrator under the county-approved ordinance since 1979.

Montgomery says state law gives counties the “authority to enact regulations, resolutions and ordinances, not inconsistent with the Constitution and general law of this state, including the exercise of these powers in relation to health and order in counties or respecting any subject as appears to them necessary and proper for the security, general welfare, and convenience of counties or for preserving health, peace, order and good government in them.”

“The powers of a county must be liberally construed in favor of the county and the specific mention of particular powers may not be construed as limiting in any manner the general powers of counties,” Montgomery said, citing the law.

The law goes on to state, that “in those counties adopting the council form of government … the responsibility for policy making and administration of county government shall be vested in the county council.”

Montgomery said in his letter, “The question then becomes whether Calhoun County Council would have been prevented from delegating its administrative authority through the duties and responsibilities bestowed upon the county administrator in the 1979 Ordinance.”

“In my opinion, the delegation of administrative authority is not prohibited by the provisions of the Home Rule Act pertaining to county government,” he said.

Montgomery goes on to cite a 2004 South Carolina Attorney General opinion which states that it is well-recognized that “duties which are purely ministerial and executive and do not involve the exercise of discretion may be delegated by the board to a committee or to an agent, an employee, or a servant.”

The AG’s opinion, Montgomery notes, goes on to hold that “while legislative functions could not be delegated by a public body, that body …. could confer discretion to the County Director in the application of ordinances and the exercise of administrative functions.”

“Accordingly, it is evident that County Council possesses the authority to delegate certain administrative powers and duties to third parties, which would in all likelihood include the County Director,” Montgomery writes. “So long as Council does not delegate legislative or policy making powers to others but confines its delegation of authority to administrative and ministerial powers, a court would probably conclude such delegation is not an unlawful delegation of power.”

Montgomery said he agrees with the AG’s opinion, noting that the “delegation of administrative duties by County Council to the county administrator is not prohibited by state law.”

Montgomery goes on to answer a concern raised by Hill about the current county administrator’s contract in light of state law in 1976 prior to the Home Rule Act.

Montgomery says the state law and the Calhoun County-approved ordinance read nearly the same, “with one variation related to hiring and termination of county employees, which does not substantively change the administrative authority provided to the county administrator by the 1979 Ordinance.”

“I would also note that I have reviewed the last three county administrator contracts prior to the current administrator’s contract, and they all contain this identical sentence,” Montgomery said. “Thus, I do not find any merit to the contention that County Council attempted to change the form of government by virtue of the current administrator’s contract.”

In answer to Montgomery’s legal opinion, Hill, in an emailed response sent to county residents, did acknowledge that the county ordinance in 1979 “did not diminish the authority of the council, nor did it give the office of administrator of the county council any authority over council.”

“This seems to be a reasonable action considering that our county council is part-time,” Hill wrote. “However, there is a discussion to be had as to whether or not the contracted county administrator has the authority to execute some very controversial duties without a county council vote.”