Can a South Carolina county use its existing property-tax millage to fund a new county police department?

Official title

Opinion addressing issues related to funding a potential county police department as authorized under S.C. Code Section 4-9-33.

Requester

Requested by The Honorable Matthew Connelly, Chairman, Allendale County Council.

Plain-English summary

Allendale County, a small county with a declining population, was weighing whether to consolidate its law enforcement into a county police department under § 4-9-33. The catch is money. Act 388 of 2006, the Property Tax Reform Act, caps how much a county can raise its operating millage each year (tied to inflation plus population growth), and Allendale's shrinking population makes that cap especially tight. So the council asked two things: can it use current millage to fund a county police department, and would creating one count as a "new service" that might let it raise millage above the cap?

On funding, the Attorney General concluded yes. If voters approve a county police department that "duplicates or replaces the law enforcement functions of a sheriff," the county may use current millage to pay for it, because law enforcement serves a public purpose under the state constitution. The AG added two guardrails. First, the council can reallocate a proportional amount of funding away from the sheriff, but the sheriff's office must still be funded well enough to perform its remaining duties; prior opinions hold a council cannot starve an elected official's office to the point it cannot function. Second, even replacing the sheriff's law enforcement functions cannot abolish the constitutional office of sheriff, which art. V, § 24 requires every county to have.

On the "new service" question, the AG concluded a county police department would not be a new or future service. The statute's own words, "duplicate" and "replace," show the legislature meant to transfer existing sheriff functions to a new entity, not create new ones. So the county could not justify exceeding the millage cap on the theory that policing is a brand-new service.

What this means for you

Allendale County Council and other small SC counties weighing consolidation

The opinion supports using current millage to fund a voter-approved county police department, treating policing as a public purpose. It does not give a path around the Act 388 millage cap: because the department duplicates or replaces existing sheriff functions, the AG read it as not a "new service." Counties counting on a millage increase to pay for consolidation should not assume this opinion authorizes one.

Sheriffs and sheriff's office staff

The opinion does not let a council defund the sheriff into irrelevance. It reads prior opinions to bar a council from reducing an elected official's appropriations so far that the office cannot function, and it stresses that the constitutional office of sheriff survives even if its law enforcement functions are transferred. A proportional reallocation is one thing; eliminating the office's ability to operate is another.

Voters in a county considering this change

The AG's analysis assumes a referendum: a county police department under § 4-9-33 is created only if the electorate approves it. The funding answer in this opinion follows from voter approval, so the decision ultimately runs through the ballot, not the council alone.

Common questions

Q: Can a county pay for a new county police department out of its existing property taxes?
A: Yes, per this opinion, if voters approve the department. The AG concluded current millage may fund it because law enforcement is a public purpose under S.C. Const. art. X, § 5.

Q: Can the county take money away from the sheriff to fund the new department?
A: It can reallocate a proportional amount, but the sheriff's office must still be funded enough to perform its remaining duties. The AG relied on prior opinions holding a council cannot reduce an elected official's budget so far that the office cannot function.

Q: Does creating a county police department get rid of the sheriff?
A: No. The AG was explicit that even replacing the sheriff's law enforcement functions cannot eliminate the constitutional office of sheriff, which art. V, § 24 requires in every county.

Q: Is a county police department a "new service" that lets the county raise taxes above the Act 388 cap?
A: No, per this opinion. Because the statute speaks of "duplicating" or "replacing" existing sheriff functions, the AG read those functions as transferred, not new, so they do not qualify as a new service on that basis.

Q: Has any South Carolina county actually done this?
A: The opinion notes no county has created a county police department using the § 4-9-33 process, calling it a matter of first impression. Horry County operates a county police department, but it was created differently, by special law before Home Rule, as discussed in Henry v. Horry County.

Background and statutory framework

Section 4-9-33 lets a county create a county police department, by referendum, that would "duplicate or replace the law enforcement functions of a sheriff." It defines "law enforcement functions" as activities requiring the exercise of a sheriff's custodial arrest authority, and it preserves the county's separate power to provide other, non-arrest services.

The funding analysis runs through several provisions. S.C. Const. art. X, § 5 requires that public funds be spent for a stated public purpose, and the South Carolina Supreme Court in Anderson v. Baehr described public purposes to include promoting public health, safety, and general welfare. Section 4-9-25 grants counties broad, liberally construed powers, and § 4-9-140 gives the council authority to adopt annual budgets. But § 4-9-30(7) and a line of AG opinions limit the council's reach over elected officials: it cannot reduce an elected official's appropriations so far as to prevent the office from functioning. And art. V, § 24 guarantees an elected sheriff in every county.

On the "new service" question, the AG applied standard interpretation canons (Mitchell v. City of Greenville; Hodges v. Rainey) and read the words "duplicate" and "replace" to mean the legislature was transferring existing functions, not creating new ones. The opinion treats the matter as one of first impression, noting that Graham v. Creek and Henry v. Horry County involved Horry County's police arrangement created by special law before Home Rule and § 4-9-33.

Citations and references

Statutes and constitutional provisions:

• S.C. Code Ann. § 4-9-33 (county police department by referendum; "duplicate or replace" sheriff functions)
• S.C. Code Ann. § 6-1-320 (Act 388 cap on annual millage increases)
• S.C. Code Ann. § 4-9-25 (general powers of counties, liberally construed)
• S.C. Code Ann. § 4-9-140 (county council adopts annual operating and capital budgets)
• S.C. Code Ann. § 4-9-30(7) (council employment authority does not extend to elected officials' departments)
• S.C. Const. art. X, § 5 (public funds must be spent for a stated public purpose)
• S.C. Const. art. V, § 24 (elected sheriff required in each county)

Cases:

• Anderson v. Baehr, 265 S.C. 153, 217 S.E.2d 43 (1975) (defining "public purpose")
• Mitchell v. City of Greenville, 411 S.C. 632, 770 S.E.2d 391 (2015) (ascertain legislative intent)
• Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000) (plain text is best evidence of intent)
• Graham v. Creek, 289 S.C. 165, 345 S.E.2d 717 (1986) (Horry County police commission created by special law)
• Henry v. Horry Cnty., 334 S.C. 461, 514 S.E.2d 122 (1999) (Horry County's two law enforcement agencies)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-issues-related-to-funding-a-potential-county-police-department-as-authorized-under-s-c-code-section-4-9-33/
• Original PDF: https://www.scag.gov/media/nkaamvlp/03453214.pdf

Original opinion text

Alan Wilson
attorney General

December 1, 2023

Mr. Matthew Connelly
Chairman

Allendale County Council
P.O. Box 190
Allendale, SC 29810

Dear Chairman Connelly:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
states the following:

Allendale County is considering a consolidation of law enforcement
organizations in the County through the creation of a county police department.
The potential advantages of a county police department for a small county such as

Allendale County, include a reduction in public safety infrastructure costs, as well

as a reduction in maintenance and equipment costs. Consolidation will also help to
address personnel shortages and provide improvements in the consistency and
efficiency of services. However, questions regarding how the County may fund a
county police department have arisen.

Act 388 of 2006, the Property Tax Reform Act, imposes a cap on increases
in millage rates imposed for the operating purposes of counties through its

amendments to Section 6-1-320 of the South Carolina Code. Your office has
explained that Section 6-1-320 limits millage rate increases to the average twelve
month consumer price indices of the preceding calendar year, and “the percentage

increase in the previous year in the population of the entity as determined by the
Revenue and Fiscal Affairs Office.” Op. S.C. Att’y Gen., 2021 WL 5034371
(October 18, 2021) (quoting S.C. Code Ann. § 6-l-320(A)(l) (Supp. 2020)).

Allendale County is especially restricted by this provision because its population
has been steadily declining in recent years.

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Mr. Matthew Connelly
Page 2

December 1 , 2023

However, there are circumstances in which governing bodies are permitted

to exceed the millage rate cap. Given the complex nature of setting up a county
police

department

through

consolidation

of

multiple

law

enforcement

organizations, Allendale County is seeking guidance on the following:

(1) Would Allendale County be permitted to use current millage to fund the
operations of a county police department created under Section 4-9-33 of the
South Carolina Code?

(2) Would the creation of a county police department under Section 4-9-33 of the
South Carolina Code constitute a new or future service rather than an ongoing

service such that an increase in millage may be imposed to fund the operating

expenses of the police force? In particular, Allendale County questions whether
the enumerated description of a county police department which functions to
“duplicate or replace the law enforcement functions of a sheriff’ prohibits the
services of such a police department to be considered as a new service. S.C.
Code Ann. § 4-9-33.
Law/Analysis

It is this Offices opinion that if a referendum is held and the electorate approves the creation
of a county police department that “duplicate [s] or replace [s] the law enforcement functions of a

sheriff,” county council is authorized to use current millage to fund such a department’s operations.
S.C. Code § 4-9-33. Our opinions have consistently stated that the South Carolina Constitution
requires public funds be spent for public purposes.

No tax, subsidy or charge shall be established, fixed, laid or levied, under any
pretext whatsoever, without the consent of the people or their representatives

lawfully assembled. Any tax which shall be levied shall distinctly state the public
purpose to which the proceeds of the tax shall be applied.

S.C. Const, art. X, § 5 (emphasis added). The South Carolina Supreme Court has described public
purposes to include “the promotion of the public health, safety, morals, general welfare, security,

prosperity, and contentment of all the inhabitants or residents, or at least a substantial part thereof.”
Anderson v. Baehr. 265 S.C. 153, 162, 217 S.E.2d 43, 47 (1975). These articulated purposes are

broadly reflected in the listed lists the powers of counties.

Mr. Matthew Connelly
Page 3

December 1, 2023

All counties of the State . . . have 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 maimer the general powers of counties.

S.C. Code § 4-9-25. Section 4-9-33 makes clear that county police departments created thereunder
are authorized to provide “law enforcement functions” which is defined as “those activities and
duties which require the exercise of custodial arrest authority by a sheriff’ and incidental activities.
Therefore, it is this Office’s opinion that a court would hold a county may use the public funds
available under current millage to fund a county police department’s operations as they would
serve a public purpose.

This Office understands the concern in your letter is focused on whether the county can
allocate funds collected under current millage in future budgets to fund a county police department
and correspondingly reduce funding of the sheriffs office. Initially, we note that county council

is authorized under the general law of this state to adopt annual budgets for the operation of county
government.

All county offices, departments, boards, commissions or institutions receiving

county funds shall make a full, detailed annual fiscal report to the county council
at the end of the fiscal year.

County council shall adopt annually and prior to the beginning of the fiscal year

operating and capital budgets for the operation of county government and shall in
such budgets identify the sources of anticipated revenue including taxes necessary
to meet the financial requirements of the budgets adopted. Council shall further
provide for the levy and collection of taxes necessary to meet all budget

requirements except as provided for by other revenue sources.

S.C. Code § 4-9-140. However, our opinions also explain that the council cannot reduce funding

for an elected official to such an extent that the office’s functions are compromised.
[I]n a 201 1 opinion this Office opined that a county council “cannot interfere with
any of the duties and responsibilities given to elected county officials under State

Mr. Matthew Connelly
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December 1 , 2023

law.” Op. Att’y Gen., 2011 WL 1740743 (Apr. 29, 2011). We considered that
section 4-9-30(7) gives county councils the authority to employ and discharge

county personnel, but states “[t]his employment and discharge authority does not
extend to any personnel employed in departments or agencies under the direction

of an elected official or an official appointed by an authority outside county
government.” Based on this provision and in accordance with prior opinions, this

Office determined “with regard to the budgets of elected officials, county councils
‘cannot so decrease the appropriations of an elected official's office as to prevent
the proper functioning thereof and, thus, indirectly, to abolish that official's
office.’” Id. (quoting Op. Att’y Gen., 1978 WL 34687 (S.C. A.G. Feb. 7, 1978)). See

also. Op. Att’y Gen., 2007 WL 419432 (S.C.A.G. Jan. 8, 2007) (finding reductions
to budget allocations for the salaries of employees of public officials may not be
reduced to “the extent that they cause the office of the public official to not function
properly.”).

Op. S.C. Att’y Gen., 2019 WL 6244761 (November 7, 2019). Because section 4-9-33 permits a

county police department to either “duplicate” or “replace the law enforcement functions of a
sheriff,” it may well be permissible to reallocate a proportional amount of funding. However, even

if a sheriffs law enforcement functions are replaced, the sheriffs office must continue to be funded
at an adequate level to ensure the proper functioning of the office’s remaining duties.

Finally, it is this Office’s opinion that law enforcement services authorized by section 4-9-

33 would not be considered a new or future service. To date no county has created a county police
department using the process in section 4-9-33 and this Office is unaware of any court orders

interpreting the statute in this context. 1 Therefore, as this appears to be a matter of first impression,
this opinion will resort to the rules of statutory construction to ascertain whether a court is likely
to hold a county police department provides a new service.

When interpreting legislation, the

primary goal is to determine the General Assembly’s intent. See Mitchell v. City of Greenville,
41 1 S.C. 632, 634, 770 S.E.2d 391, 392 (2015) (“The cardinal rule of statutory interpretation is to

ascertain and effectuate the legislative intent whenever possible.”). Where a statute’s language is

1 The South Carolina Supreme Court decision in Graham v. Creek 289 S.C. 165, 345 S.E.2d 717 (1986)
provides an example of a county police commission created in Horry County by the General Assembly via
local law prior to adoption of Home Rule and section 4-9-33. Subsequently, the county council abolished
the county police commission and devolved its function upon county council and the county administrator.
Id. It is this Office’s understanding that Hony County Police Department is the only county police
department currently operating in the state. See Henry v, Horry Cnty., 334 S.C. 461, 462, 514 S.E.2d 122,
122 (1999) (“Horry County has two law enforcement agencies: the Horry County Sheriff and the Horry
County Police Department.”).

Mr. Matthew Connelly
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December 1 , 2023

plain and unambiguous, “the text of a statute is considered the best evidence of the legislative
intent or will.” Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000).
In the first paragraph of section 4-9-33, the plain language of the statute allows the creation
of a county police department “which would duplicate or replace the law enforcement functions

of a sheriff.” S.C. Code § 4-9-33 (emphasis added). The use of the words “duplicate” and “replace”
strongly suggests the Legislature did not intend county police departments to provide new or

different law enforcement functions. See American Heritage College Dictionary 426 (3d. ed. 1993)

(“Duplicate- 1. Identically copied from an original; 2. Existing or growing in two corresponding

parts; double”); American Heritage College Dictionary 1157 (3d. ed. 1993) (“Replace- ... 2. To
take or fill the place of; 3. To be or provide a substitute for.”). Moreover, the second paragraph of
section 4-9-33 makes clear that code enforcement and other law enforcement services that do not
generally invoke custodial arrest authority remain available to counties regardless of whether a
referendum is held and ultimately approved. See S.C. Code § 4-9-33 (The statute does not restrict
“the authority of a county council to ... provide other services not directly related to law

enforcement, to exercise the powers conferred by general law upon counties to protect the public
health, safety, and general welfare of the community.”). A county council may choose to provide

these other services for a first time, but the “law enforcement functions of a sheriff’ already exist
under the general law of the state and would only be transferred to a new entity. See Henry v.

Horry Cnty., 334 S.C. 461, 514 S.E.2d 122 (1999) (discussing constitutionality of special laws
which devolved specific functions of the sheriffs office to the Horry County Council and the
Horry County Administrator).

Conclusion

As is discussed more fully above, it is this Offices opinion that if a referendum is held and

the electorate approves the creation of a county police department that “duplicate [s] or replace [s]
the law enforcement functions of a sheriff,” county council is authorized to use current millage to

fund such a department’s operations. S.C. Code § 4-9-33. Because section 4-9-33 permits a county
police department to either “duplicate” or “replace the law enforcement functions of a sheriff,” it

may well be permissible to reallocate a proportional amount of funding.

However, even if a

sheriffs law enforcement functions are replaced by a county police department, the sheriffs office
must continue to be funded at an adequate level to ensure the proper functioning of the office’s
remaining duties. To be clear, even replacing a sheriffs law enforcement functions according to
the provisions of this statute cannot eliminate the constitutional office of the county sheriff. S.C.
Const, art. V, § 24 (“There shall be elected in each county by the electors thereof a ... a sheriff...
The General Assembly shall provide by law for their duties and compensation.”). Finally, it is this

Mr. Matthew Connelly
Page 6
December 1, 2023

Office’s opinion that law enforcement services authorized by section 4-9-33 would not be
considered a new or future service.

Sincerely,

Matthew Houck

Assistant Attorney General
review:

AND APPROVED BY:

MY -

Robert D. Cook

Solicitor General