Can a city council get legal advice outside a public meeting and bind future councils to a city attorney's term?

Official title

Opinion addressing proposed ordinance relating to requesting legal advice from a city attorney.

Requester

Requested by Mr. Charlie Funderburk, City Manager, Tega Cay.

Plain-English summary

The City Manager of Tega Cay asked the Attorney General about a proposed ordinance dealing with the city attorney. Tega Cay uses a council-manager form of government, and its city attorney is not an employee or on retainer; he is engaged only when the city manager or council asks, and he bills by the hour. The proposed ordinance would let the city attorney be called on by "at least two members of City Council" for advice, and would set the city attorney's term at two years. Three questions followed: can council seek legal advice outside a public FOIA meeting, can the ordinance let fewer than a majority of council request advice and incur legal expenses, and can a current council lock a future council into a fixed term for the city attorney?

On the first question, the office said the Freedom of Information Act does not require legal advice to be sought only in a public meeting. FOIA lets a public body close a meeting (go into executive session) to receive legal advice, but that is one permitted method, not the exclusive one. Nothing in FOIA says legal advice can only be obtained during a meeting.

On the second question, the office pointed to § 5-7-230, which lets a city council appoint a municipal attorney whose duties are as prescribed by law, and to a long-standing prior opinion holding that an ordinance can shape the scope of the city attorney's duties and the process for requesting services, so long as it is consistent with the constitution and state law. A city may route approval through the full council or delegate it to staff like the clerk or manager, with reporting. The worry that council could be surprised by expenses run up at the request of fewer than a majority is, the office said, a policy question about the efficacy of the process and generally beyond the scope of an opinion. It did add that council has a fiduciary duty to monitor the city's budget, so it should build in adequate reporting and accountability.

On the third question, the answer is no. A city council cannot bind future councils by an employment contract extending beyond the terms of its own members. The office relied on the South Carolina Supreme Court's decision in Piedmont Public Service District v. Cowart, which held that appointing or removing a public officer is a governmental function that cannot be locked in by a contract reaching past the current governing body's terms. A future council would be free to appoint its own city attorney.

What this means for you

City councils and council members: The opinion confirms you are not limited by FOIA to seeking legal advice only in a public or closed meeting, and that you can structure (or delegate) how requests for the city attorney's services are made. It also confirms you cannot bind a future council to a set term for the city attorney.

City managers and clerks: The opinion supports a process where requests for legal services and approval are delegated to staff (manager or clerk) with reporting back to council. The office framed the design of that process as a policy choice, while flagging the council's fiduciary duty to track spending.

City attorneys: The opinion treats the scope of your duties and the process for engaging you as things an ordinance can define under § 5-7-230, and it confirms a term set by one council does not bind the next, so your appointment can be revisited by a successor council.

Residents and watchdogs: The opinion underscores that council holds its powers in trust and must monitor the budget. If an ordinance lets a small group of members incur legal expenses, the office's expectation is that reporting and accountability mechanisms accompany it.

Common questions

Does a city council have to be in a public meeting to ask the city attorney for advice?
No. The opinion concludes FOIA does not limit a council or its members to requesting legal advice only during a meeting. Closing a meeting to receive legal advice is allowed but is not the only option.

Can an ordinance let just two council members request legal advice?
As a matter of law, the office says a council can define or delegate the process for requesting the city attorney's services under § 5-7-230. Whether allowing fewer than a majority to incur expenses is wise is a policy question the office treated as beyond its opinion, though it stressed council's fiduciary duty to monitor the budget.

Can this year's council set a two-year term that ties the hands of next year's council?
No. The opinion concludes a council cannot bind future councils by an employment arrangement extending past its members' terms. A later council can appoint its own city attorney.

Who decides the city attorney's duties?
Under § 5-7-230, the city council appoints a municipal attorney whose duties are as prescribed by law, and an ordinance can shape those duties and the process for engaging the attorney as long as it stays consistent with the constitution and state law.

Background and statutory framework

The South Carolina Constitution provides that the structure, powers, and duties of municipalities are established by general law (art. 8, § 8), and the office noted there are no relevant constitutional limits specific to city attorneys. Section 5-7-230 lets a city council elect or appoint a municipal attorney whose duties are as prescribed by law; other statutes impose specific duties (advising the firemen's pension fund board under § 9-13-30, and assisting the Attorney General on Unfair Trade Practices Act prosecutions under § 39-5-130). Beyond those, the city attorney performs duties as prescribed by ordinance.

The FOIA analysis turned on the Act's definition of a "meeting" as convening a quorum to discuss or act on a matter (§ 30-4-20(d)) and the executive-session provision allowing a closed meeting for the "receipt of legal advice" (§ 30-4-70(a)). The office read those provisions to permit, not to require, that legal advice be received in a closed meeting. For the fiduciary-duty point it cited Haesloop v. City Council of Charleston, and for the binding-future-councils holding it relied on Piedmont Public Service District v. Cowart.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-proposed-ordinance-relating-to-requesting-legal-advice-from-a-city-attorney/
• Original PDF: https://www.scag.gov/media/oa3hmequ/03642873.pdf

Original opinion text

WWW
Alan Wilson
ATTORNEY GENERAL

July 18, 2024
Mr. Charlie Funderburk
City Manager
7725 Tega Cay Dr.
Tega Cay, SC 29708

Dear Mr. Funderburk:

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

Statement of Facts:
1.

The

City

of Tega Cay

(“City”)

is

an

incorporated

South

Carolina

municipality.
2.

The City has elected the council-manager form of government. (Code of

Ordinances of the City of Tega Cay Chapter 2, Article I, Sec. 2.1 “The form
of government shall be council -manager”).
3.

The City’s ordinances provide that City Council shall be constituted of one
mayor and four councilmembers, thereby constituting a voting total of five

(5) and thus a quorum is three (3).
4.

City ordinance Chap. 2, Article II, Division 2, Sec. 2-48 (e) provides:
“Except for emergency meetings, all actions of the council shall be by

majority vote of the council members constituting a quorum.”

5.

The City Attorney is not an employee of the City, is not paid a salary, and
is not on retainer. His services are provided only upon specific request by
either the City Manager or City Council, and such services provided are
then billed by the hour.

Rembert C. Dennis Building

’ POST OrFl-E Box; 1549 » Columbia, SC 292 11-1 549

Telephone 893-734-3970 . . Tactile 503-253-6283

Mr. Charlie Funderburk
Page 2

July 18, 2024

6.

Certain council members have proposed an ordinance pertaining to the
position of City Attorney. It is referred to herein as “the Ordinance.”

7.

Article VI, Sec. 2-420 (3) of the Ordinance provides as follows:

“When called upon by at least two members of City Council
to give advice and direction to City Council, with such
advice or direction being related to City procedure, form,

and law which may arise in the discharge of the duties of
their respective offices.”
8.

Article VI Sec. 2-4 1 7 (B) (Appointment) of the Ordinance provides “A City

Attorney shall serve a two (2) year term.”
Questions Presented- Opinions Requested
A. May a majority of City Council, other than in a duly called meeting in

compliance with the South Carolina Freedom of Information Act, direct the
City Attorney to “give advice and direction to City Council, with such
advice or direction being related to City procedure, form, and law which
may arise in the discharge of the duties of their respective offices.”
B. May a minority of City Council, at any time, direct the City Attorney to

“give advice and direction to City Council, with such advice or direction
being related to City procedure, form, and law which may arise in the
discharge of the duties of their respective offices” i.e. can a majority of City
Council, bv ordinance, delegate to less than a majorilv of City Council the
authority' to incur legal expenses and request legal advice.

C. May a current City Council, by ordinance, bind future City Councils to a
specific term of service for a City Attorney.

Law/Analvsis
This Office has previously opined on the role of the city attorney and the legality of a

proposed municipal ordinance that would establish a procedure to process all legal services. For
instance, a prior opinion presented a proposed ordinance that required “all legal services to the
City of Abbeville to first be approved by city council and then processed through the city clerk to
the city attorney, and furthermore would make the city clerk solely responsible for reporting to the

Mr. Charlie Funderburk

Page 3
July 18, 2024

city council the status of all such legal services.” Op. S.C. Att’v Gen., 1977 WL 24632 (September
15, 1977).

The opinion found that the proposed ordinance did not apparently violate the South

Carolina Constitution or general laws of the State.
The Constitution provides only that ‘[t]he structure and organization, powers,
duties, functions, and responsibilities of the municipalities shall be established by
general law ...’ S.C. CONST, art. 8, § 8. There are no relevant constitutional

limitations on what municipalities may or may not do with city attorneys.
The statutory law, § 5-7-230, CODE OF LAWS OF SOUTH CAROLINA, 1976,
provides that the city council may elect or appoint a municipal attorney whose

duties shall be as prescribed by law. In addition, there are two other statutory
sections that impose duties by law on the city attorney:

(1) Section 9-13-30 provides that the city attorney shall advise and represent the

board of trustees of the city's firemen's pension fund; and
(2) Section 39-5-130 provides that the city attorney shall assist the Attorney
General upon request to prosecute violations of the Unfair Trade Practices Act.

Apart from these statutory duties, the city attorney would be required only to
perform the duties of his office in a manner prescribed by city ordinance.

This opinion is consistent with the law in other jurisdictions.
As a general rule, the duties of a city attorney require him to act as attorney, counsel,
and legal advisor of every agency of the city, and of the heads of the departments.
... [I]n construing an ordinance defining his duties in general terms, all duties
naturally appertaining to his office will be held to be covered unless the language

used clearly indicates a contrary intent.
A city attorney has such duties as are imposed on him by law ... [H]is duties may

be broadened or narrowed by ... ordinance, or rules or orders properly promulgated

by the municipal authorities ... 62 C.J.S. § 695(d).
Id. While the ordinance established a process to initiate a request and assigned the city clerk as
the party responsible for reporting the status of legal services, the opinion’s analysis is equally

applicable to the present inquiry.

S.C. Code § 5-7-230 has not been amended since the opinion
was issued, and we, therefore, continue to interpret it to permit altering the scope of a city
attorney’s duties or defining the paraments by which he is to undertake those duties so long as the

Mr. Charlie Funderburk
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July 18, 2024

ordinance is consistent with the constitution and state law. See Op. S.C. Att’ \ Gen., 2020 WL
3619622 (June 22, 2020) (“This Office recognizes a long-standing rule that it will not overrule a
prior opinion unless it is clearly erroneous or there has been a change in applicable law.”).
The first issue raised in your letter suggests an ordinance which directs a city attorney to

request legal advice aside from in a public meeting may violate the South Carolina Freedom of
Information Act (“FOIA”). S.C. Code §§ 30-4-10 et seq. It is this Office’s opinion that the FOIA
does not limit a public body or its members to request legal advice solely during a public meeting.
The FOIA requires every “meeting” of all public bodies to be open to the public unless closed to
the public.

The act defines “meeting” as “the convening of a quorum of the constituent

membership of a public body, whether corporal or by means of electronic equipment, to discuss
or act upon a matter over which the public body has supervision, control jurisdiction or advisory
power.” S.C. Code § 30-4-20(d).

“Quorum” means “a simple majority of the constituent

membership of a public body” except where otherwise defined by law. S.C. Code § 30-4-20(e). A

public body is only permitted to close a meeting to enter executive session for one of the reasons
listed in S.C. Code § 30-4-70(a). The “receipt of legal advice” is one of those listed reasons. Id.
To close a meeting, a majority of the members present must vote affirmatively in public. S.C. Code
§ 30-4-70(b).

While the FOIA expressly allows a meeting to be closed to the public for the receipt of
legal advice, there is no suggestion within the Act that this is the only method by which legal
advice may be sought. As the opinion above states, a city attorney is often required “to act as . . .
legal advisor of every agency of the city, and of the heads of the departments.” Op. S.C. Att’y
Gen., 1977 WL 24632 (September 15, 1977).

The ordinance proposed in that opinion required

city staff and department heads to relay requests for legal services to city council for approval

before the services of the city attorney could be sought. Id. However, this Office is unaware of
general state law or court decisions that require this process.
Assuming the city council has allocated funds for legal services in its annual budget, a city
may develop a process where the city attorney bills for his services with approval for such services
coming directly from the council itself or delegated to city personnel, such as the city clerk or city
manager, with provisions for reporting to council. One concern relayed about the instant ordinance

is that council could be surprised by expenses incurred at the request of less than a majority of the
members. This appears to be a policy issue regarding the efficacy of a particular process and is

generally beyond the scope of our opinions. We note, however, that city council has a fiduciary
responsibility to monitor the city’s budget and financial statements. See Haesloop v. Cii v Council

of Charleston. 123 S.C. 272, 115 S.E. 596, 600 (1923) (“In the sense that all powers of municipal
corporations are held in trust for public use, all property held by such corporations is held in a

Mr. Charlie Funderburk
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July 18, 2024

fiduciary capacity.”). Therefore, council should ensure that adequate reporting and accountability
processes are implemented.
A separate provision of the proposed ordinance appoints the City Attorney to “serve a term
of two years.” Your letter asks whether this provision can bind a future city council to a specific
term of service with a city attorney. It is this Office’s opinion that a city council cannot bind future
councils by entering into an employment contract extending beyond the terms of its members. The

South Carolina Supreme Court explained in Piedmont Public Service District v. Cowart, 324 S.C.
239, 241, 478 S.E.2d 836, 837 (1996), “[T]he appointment or removal of a public officer is a

governmental function that cannot be impaired by an employment contract extending beyond the
terms of the members of the local governing body. Such a contract is not binding on the successors
to the local governing body.”

Accordingly, a future city council would be free to exercise its

authority to appoint a city attorney and would not be bound by the decision of a prior council. See
S.C. Code § 5-7-230 (“The city council may elect or appoint a municipal attorney . . . whose duties

shall be as prescribed by law.”).
Conclusion

As is discussed more fully above, it is this Office’s opinion that the FOIA does not limit a
public body or its members to request legal advice solely during a public meeting. We have
consistently interpreted S.C. Code § 5-7-230 to permit altering the scope of a city attorney’s duties
or defining the paraments by which he is to undertake those duties so long as the ordinance is

consistent with the constitution and state law. See Op. S.C. Att’v Gen., 1977 WL 24632
(September 15, 1977).

Further, it is this Office’s opinion that a city council cannot bind future

councils by entering into an employment contract extending beyond the terms of its members.
Accordingly, a future city council would be free to exercise its authority to appoint a city attorney

and would not be bound by the decision of a prior council.
Sincerely,

/y

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY;

/J'M &

Robert D. Cook

Solicitor General