1992 Opinions

December 31, 1992

Opinion concerning whether the Richland County council, newly constituted including the five new duly elected members, is legally empowered to meet and take binding action as otherwise provided by law, notwithstanding the pending litigation to which the memorandum of December 22, 1992 by the Richland County Attorney makes reference.

Requested by: The Honorable Timothy F. Rogers, Member of House of Representatives

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December 29, 1992

Opinion concerning whether a dual office holding situation exists if the Director of the Sentencing Guidelines Commission simultaneously serves as a prosecutor of animal abuse cases.

Requested by: Mr. Duffie Stone, Director, Sentencing Guidelines Commission

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December 29, 1992

Opinion concerning whether a State driver’s license, an expired driver’s license, or an I.D. card issued by the Highway Department are considered valid identification for purposes of provision S.C. Code Ann. § 16-17-680.

Requested by: The Honorable Glenn G. Reese, Senator District 11

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December 22, 1992

Opinion concerning whether forfeited drug funds may be used to pay overtime salaries for narcotics detectives after budgeted overtime funds have been expended.

Requested by: Larry L. Barnhill, Chief of Police, Conway Police Department

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December 4, 1992

Opinion concerning a provision contained in 1992 Act number 361, which in pertinent part amends the Set-Off Debt Collection Act.

Requested by: Michael B. Cone, Executive Director, S.C. Association of Counties

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December 3, 1992

Opinion questioning whether monies from drug forfeiture accounts established pursuant to S.C. Code Ann. § 44-53-530(d) may be expended to purchase automobiles for a program to be funded by a federal grant.

Requested by: G. Edward Welmaker, Esquire, Pickens County Attorney

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December 3, 1992

Opinion concerning whether the 1990 Americans with Disabilities Act prohibits licensing agencies, and particularly the South Carolina Supreme Court Committee on Character and Fitness, from asking questions to applicants about mental health history.

Requested by: Jeter E. Rhodes, Jr., Chairman, South Carolina Supreme Court Committee on Character and Fitness

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November 23, 1992

Opinion concerning when the members of the Darlington County Board of Education take office under new legislation and whether any shortening of the terms of existing members of the Board is constitutional.

Requested by: John M. Milling, Esquire

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November 23, 1992

Opinion regarding the mechanics of Act No. 319 of 1992 as to the appointment of members of the charter commission and as to the exclusion of municipalities from the proposed charter of the consolidated political subdivision.

Requested by: The Honorable Warren K. Giese, Senator District 22

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November 23, 1992

Opinion on Act No. 319 of 1992 (consolidation of political subdivisions). Requested by the Honorable Warren K. Giese, Member, South Carolina Senate. Read full opinion.

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November 19, 1992

Opinion concerning whether it is statutorily and constitutionally permissible for Barnwell County to hold all appointments to the Board, to the exclusion of Aiken County if Aiken County did not contribute to the Board’s budget.

Requested by: The Honorable Thomas L. Moore, Senator District 25

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November 19, 1992

Opinion asking whether prayer before football games of public schools would still be legal in light of the recent United States Supreme Court decision in Lee v. Weisman, 60 U.S.L.W. 4723 (decided June 24, 1992).

Requested by: The Honorable Robert W. Hayes, Jr., Chairman, York County Legislative Delegation

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November 17, 1992

Opinion concerning whether a dual office holding situation exists if the Allendale Attorney simultaneously serves as Municipal Judge for the Town.

Requested by: The Honorable William Holmes, Mayor, Town of Allendale

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November 17, 1992

Opinion questioning whether there are any legal impediments which would prohibit the Town of Hilton Head from requiring that the Beaufort County Sheriff’s Department initiate all of its criminal cases which occur within the corporate limits of the Town in the newly established municipal court.

Requested by: Gregory D. DeLoach, Esquire, Director of Legal Services, Town of Hilton Head Island

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November 17, 1992

Opinion concerning whether a warrant charging an individual with a fraudulent check offense may be executed at the individual’s place of business.

Requested by: The Honorable John Courson, Senator, District No. 20

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November 9, 1992

Opinion concerning whether a political subdivision, such as a school district, is legally prohibited from selling advertising space on publicly owned property, such as cars, buildings, or vacant real estate, to be used by the private sector.

Requested by: The Honorable Ernie Passailaigue, Senator, District No. 43

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November 9, 1992

Opinion questioning whether a pyrotechnics show would be in violation of State Budget and Control Board Regulation R.19-305.10.

Requested by: The Honorable C. Alex Harvin, III, Majority Leader Emeritus, House of Representatives

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November 6, 1992

Opinion questioning whether the city would be required to provide police protection to its residents on James Island.

Requested by: The Honorable J. Al Cannon, Jr., Sheriff, Charleston County

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November 2, 1992

Opinion regarding proviso 129.35 of the 1992-93 Appropriations Act, Act No. 501 of 1992 and instances in which state employees are allowed to accumulate frequent flier miles for personal use when traveling on official state business.

Requested by: The Honorable Herbert Kirsh, Member of House of Representatives

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October 29, 1992

Opinion concerning how the allocation of gasoline tax is computed under § 12-27-390.

Requested by: The Honorable Grady L. Patterson, Jr., Treasurer, State of South Carolina

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October 29, 1992

Opinion questioning: can an employee work for the Edgefield County Treasurer and the County Tax Collector; who is responsible for establishing the employee’s work schedule; can the Edgefield County Council reduce the salary budget for the County and reduce the staff of the Treasurer’s Office to the point where it cannot function properly; who determines whether the office can function properly; and can the Edgefield County Council reduce the County Treasurer’s salary for duties no longer performed?

Requested by: The Honorable James W. McCord, Edgefield County Treasurer

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October 27, 1992

Opinion concerning whether persons residing in homeless shelters ballots could be challenged and invalidated due to the fact that they reside in such a facility.

Requested by: The Honorable Lucille S. Whipper, Member, House of Representatives

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October 27, 1992

Opinion concerning the filing of Notices of Liens of the Workers’ Compensation Uninsured Employers’ Fund pursuant to S.C. Code Ann. §42-7-200 (Supp. 1991).

Requested by: Karen S. Baughman, Circuit Court Representative, S.C. Court Administration

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October 26, 1992

Opinion questioning the effect of improper or inadequate performance bonds on the commissioning of magistrates and whether a commissioned magistrate acts in a de facto capacity where the performance bond for that office is, or has become, inadequate or not in a form prescribed by this Office.

Requested by: George A. Markert, Assistant Director, South Carolina Court Administration

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October 21, 1992

Opinion questioning whether Bamberg County Council or the Bamberg County Legislative Delegation would have authority to appoint the members of the Bamberg County Mental Retardation Board.

Requested by: The Honorable Thomas N. Rhoad, Member, House of Representatives

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October 21, 1992

Opinion concerning what happens if voting to fill a vacancy to represent the First District on the South Carolina Coastal Council is still continuing as of Election Day. Specifically, this opinion addresses whether the appointment would be made from the current First Congressional District or from the newly elected First Congressional District.

Requested by: The Honorable Glenn F. McConnell, Senator, District No. 41

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October 20, 1992

Opinion concerning the method for filing two vacancies on the Florence County District Four School Board.

Requested by: Ray Coit Yarborough, Jr., Esquire

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October 20, 1992

Opinion concerning who will be entitled to vote in a special primary to be held on behalf of the Republican Party in Dorchester County to determine a replacement nominee for that party’s nominee for the office of probate judge.

Requested by: The Honorable Michael T. Rose, Senator, District No. 38

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October 20, 1992

Opinion concerning the status of the superintendent of education should elections for the new school board members not be held by December 31, 1992.

Requested by: The Honorable Thomas N. Rhoad, Member of House of Representatives

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October 20, 1992

Opinion concerning whether one must search the record to determine the current holder of the mortgage prior to recording a mortgage satisfaction.

Requested by: The Honorable Cynthia B. Forte, Register of Mesne Conveyance for Berkeley County

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October 15, 1992

Opinion concerning several issues which are germane to the South Carolina Residential Builders Commission’s operating procedures.

Requested by: Mr. John T. Watkins, Director, S.C. Residential Builders Commission

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October 13, 1992

Opinion concerning whether a dual office holding situation exists if the Town Administrator simultaneously serves as a Deputy Coroner for Georgetown County.

Requested by: John D. Smith, Administrator, Town of Andrews

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October 12, 1992

Opinion concerning whether a deposit in an account involving a magistrate would be sanctioned by Act 549 of 1990.

Requested by: George A. Markert, Assistant Director, South Carolina Court Administration

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October 12, 1992

Opinion regarding the term “accredited college or university” as used in the statute regarding the licensing of nursing home administrators.

Requested by: William V. Bradley, Interim Executive Director, South Carolina State Board of Examiners for Nursing Home Administrators and Community Residential Care Facility Administrators

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October 9, 1992

Opinion asking interpretation of new § 31-13-445, which provides “No more than twenty percent of trust fund monies expended in a fiscal year may be for projects in any one county.”

Requested by: The Honorable John Courson, Senator, District No. 20

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October 7, 1992

Opinion concerning whether the State Department of Education may limit transportation funding for student transportation only within particular attendance zones.

Requested by: The Honorable Warren K. Giese, Senator, District No. 22

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October 6, 1992

Opinion concerning whether the term “imprisonment” includes time served as part of a suspended sentence, time on parole, or time on probation or if the term is limited to actual time of physical incarceration within a correctional facility.

Requested by: William L. Todd, Assistant Chief Counsel, South Carolina Department of Highways and Public Transportation

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October 5, 1992

Concerning whether persons employed by the Spartanburg County Sheriff’s Office could participate in a sale of abandoned and/or unclaimed items to be conducted by public auction.

Requested by: The Honorable Bill Coffey, Sheriff of Spartanburg County

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September 30, 1992

Opinion reviewing the February 1, 1977 opinion relative to the Office of the Beaufort County Treasurer.

Requested by: The Honorable Joy Logan, Beaufort County Treasurer

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September 29, 1992

Opinion concerning whether a corporation’s bylaw is consistent with §33-35-20, S.C. Code of Laws (1990) when, upon dissolution or final liquidation of the corporation, the bylaw states that residual assets are deemed distributed to the members/ former members based on their patronage of the company and states that such distribution is then deemed donated to an organization described in §501 (c)(12) of the Internal Revenue Code.

Requested by: The Honorable Thomas L. Moore, Senator, Aiken and Edgefield Counties

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September 28, 1992

Opinion concerning the difference in a public official and a state employee.

Requested by: The Honorable Ryan C. Shealy, Senator, District No. 24

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September 21, 1992

Opinion questioning whether the provisions of S.C. Code § 56-3-1950 et seq. which provide for parking for handicapped persons may be enforced on private property.

Requested by: The Honorable Lanny F. Littlejohn, Member, House of Representatives

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September 17, 1992

Opinion concerning whether applicants to represent the First Congressional District should be sought from the old first district or the newly apportioned district.

Requested by: The Honorable D. N. Holt, Jr., Chairman, Joint Charleston County Legislative Delegation

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September 16, 1992

Opinion concerning whether Act No. 434 should be amended to provide a filing period for school trustee elections.

Requested by: The Honorable John W. Matthews, Jr., Member, South Carolina Senate

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September 14, 1992

Opinion asking whether the City of Isle of Palms may charge the public a reasonable fee for use of the facilities to cover the cost of supplies and maintenance.

Requested by: The Honorable Harry M. Hallman, Jr., Member, House of Representatives

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September 11, 1992

Opinion concerning the maximum noise ordinance fine that can be imposed for a first offense and the statute of limitations on setting a trial for a ticket in a municipal court.

Requested by: The Honorable Steve Lanford, Member, House of Representatives

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September 11, 1992

Opinion addressing several questions regarding the authority of a bailiff.

Requested by: Michael M. Hatfield, Chief Deputy, Office of Sheriff, Beaufort County

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September 11, 1992

Opinion concerning whether a dual office holding situation exists if a trustee of the Oconee County School Board simultaneously serves as the county veteran’s affairs officer.

Requested by: James M. Brown, Superintendent of Education, School District of Oconee County

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September 10, 1992

Opinion concerning whether the Department of Social Services, pursuant to S.C. Code Section 20-7-650, must seek a “finding” of an indicated case from family court after the Department indicates a case, notifies family court of its conclusion and a hearing is scheduled concerning the matter.

Requested by: The Honorable James G. Mattos, Member, House of Representatives

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September 8, 1992

Opinion concerning whether a dual office holding situation exists if a police officer simultaneously serves as a member of the York School District No.1 board of trustees.

Requested by: C. D. Morton, Chief, York Police Department

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September 8, 1992

Opinion regarding the redevelopment plan for the Congaree Vista, which is funded by a tax increment financing plan authorized by S.C. Code Ann. § 31-6-10 et seq.

Requested by: The Honorable Warren K. Giese, Senator, District No. 22

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September 4, 1992

Opinion concerning whether a dual office holding situation exists if a member of the House of Representatives simultaneously serves as director of the Clarendon County Public Service Commission.

Requested by: The Honorable E. B. McLeod, Jr., Member, House of Representatives

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September 3, 1992

Opinion concerning whether a beginner’s permit may be suspended pursuant to S.C. Code § 56-1-80 for failing to verify liability insurance coverage.

Requested by: The Honorable I. A. Smoak, III, Municipal Judge, Walterboro City Hall

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September 3, 1992

Opinion concerning the validity of emergency regulations promulgated on or around June 25, 1992 by the South Carolina Residential Builders Commission.

Requested by: The Honorable Irene K. Rudnick, Member, House of Representatives

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September 3, 1992

Opinion addressing several questions concerning the collection of delinquent municipal taxes by a county.

Requested by: H. Wayne Capell, Lee County Treasurer

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September 2, 1992

Opinion concerning whether the overage funds resulting from the sale of property for delinquent taxes are subject to the Uniform Unclaimed Property Act (1981), or if such funds are subject to disposition under S.C. Code Ann. Section 12-51-130 (Supp. 1991).

Requested by: Ricky Taylor, Office Services, Abandoned Property

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August 31, 1992

Opinion concerning whether it is the responsibility of the Darlington County Council to interpret the coroner’s responsibilities and direct him to perform in a particular manner.

Requested by: James H. Schafer, County Administrator, Darlington County

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August 24, 1992

Opinion questioning whether S.C. Code §16-17-725 makes it illegal to misrepresent one’s identity to a law enforcement officer if the investigation involves one’s own actions.

Requested by: The Honorable I. A. Smoak, III, Municipal Judge, Walterboro City Hall

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August 24, 1992

Opinion concerning whether a dual office holding situation exists if an individual employed by the City of Florence Housing Authority simultaneously serves on the City of Florence Planning Commission.

Requested by: Patricia Singleton-Parr, City Attorney, City of Florence

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August 18, 1992

Opinion concerning a disqualified candidate pursuing a write-in campaign and inquiring if he would be disqualified from holding office if he should win as a write- in candidate.

Requested by: R. Allen Young, Esquire

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August 17, 1992

Opinion concerning whether South Carolina law addresses the removal of a mayor from office when he is willfully and intentionally directing the Chief of Police to disregard and not enforce certain municipal ordinances and asking whether the Governor could intervene, and if so, under what circumstances.

Requested by: The Honorable Harry F. Cato, Member, House of Representatives

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August 14, 1992

Opinion stating that the City of Newberry wishes to create the Newberry Opera House Foundation and the enabling legislation requires either the Mayor or a member of City Council plus the City Manager to be included in the membership of the Foundation’s Board of Directors; and asking whether the membership provision would contravene the dual office holding prohibition.

Requested by: The Honorable T. Edward Kyzer, Mayor, City of Newberry

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August 14, 1992

Opinion addressing confusion that has arisen over the authority of the Sumter police department to enforce fire lane violations which occur on private property.

Requested by: Harold B. Johnson, Chief of Police

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August 12, 1992

Opinion asking whether there is any present language in the State Constitution that addresses the issue of hunting game and how specific an amendment would have to be to preserve and insure hunting as a sport in this State.

Requested by: The Honorable Larry A. Martin, Member, House of Representatives

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August 10, 1992

Opinion questioning whether the provisions of the Home Rule Act, Act No. 283 of 1975, may have impliedly amended the statutes relative to appointment of regional housing authority commissioners.

Requested by: The Honorable Marshall B. Williams, Senator, District No. 40

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August 10, 1992

Opinion concerning the purpose of the South Carolina Coastal Council and the intent of the Legislature in creating it; mentioning provision of public access to the beaches, protection of beach wildlife, preservation of beachfront from improper development and construction, and whether these considerations are in conflict.

Requested by: The Honorable William S. Houck, Jr., M.D., Member, House of Representatives

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August 5, 1992

Opinion concerning whether a dual office holding situation exists if the Municipal Clerk simultaneously serves as the City Recorder for the City of Pamplico.

Requested by: Thomas E. Smith, Jr., Esquire

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August 5, 1992

Opinion concerning whether certain language of §50-21-410 would prohibit the South Carolina Wildlife and Marine Resources Department from releasing information under an FOIA request when the request is not related to boating safety.

Requested by: James A. Quinn, Esquire

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July 31, 1992

Opinion concerning whether a dual office holding situation exists if a probation and parole agent simultaneously serves on the Clarendon County District Two school board.

Requested by: Carl N. Lundberg, Chief Legal Counsel, Department of Probation, Parole, and Pardon Services

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July 31, 1992

Opinion regarding whether a person can vote in the Republican Presidential primary and still be a candidate for office in the Democratic primary.

Requested by: The Honorable Alex Harvin, III, The Majority Leader Emeritus, House of Representatives

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July 31, 1992

Opinion questioning the applicability of recent legislation, R.515, which provides a three percent collection cost charge for fines and restitution payments, to court costs assessed against defendants.

Requested by: The Honorable Liz Godard, Aiken County Clerk of Court

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July 29, 1992

Opinion concerning whether the school district has the right to call bonds for redemption before maturity of the bonds and what responsibility the auditor has to levy the millage to cover the funds needed to accomplish the redemption.

Requested by: The Honorable Mary Jane McCarter, Greenville County Auditor

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July 28, 1992

Opinion concerning whether the Joint Legislative Committee on Energy continues in existence despite a line-item veto by Governor Campbell of funding for the Committee.

Requested by: The Honorable Harriet H. Keyserling, Chairman, Joint Legislative Committee on Energy and The Honorable Timothy F. Rogers, Member, House of Representatives

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July 23, 1992

Opinion reviewing certain policies of the Taylors Fire and Sewer District relative to the Freedom of Information act and addressing the legality of those polices.

Requested by: The Honorable J. Verne Smith, Senator, District No. 5

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July 22, 1992

Opinion concerning whether the county directors [of the SC Department of Social Services], as employees of the Agency, are entitled to grievance rights.

Requested by: The Honorable J. Samuel Griswold, Interim Commissioner, South Carolina Department of Social Services

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July 20, 1992

Opinion concerning whether a family have a private funeral without a funeral director. The opinion also addresses whether State statutes providing for a medical examiner, Sec. 17-5-210 et seq. of the Code refer only to those counties with a medical examiner and whether a family may place a corpse on a platform to burn or just decompose?

Requested by: The Honorable Sue R. Townsend, Coroner of Aiken County

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July 20, 1992

Opinion questioning whether after the expiration of a one-year period and upon determining that an insurer has made a mistake of over-payment on a tax return, is the Department of Insurance required to make a refund or allow an offset against additional taxes due for the amount of overpayment.

Requested by: The Honorable John G. Richards, Chief Insurance Commissioner, Department of Insurance

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July 16, 1992

Opinion requesting whether or not a conviction for willfully burning the lands of another, S.C. Code Ann. §16-11-170 (1976) would be a crime of moral turpitude.

Requested by: Lt. Patricia N. Murphy, Supervisor, Regulatory Services, South Carolina Law Enforcement Division

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July 16, 1992

Opinion concerning when the candidates for the School Board must file for office.

Requested by: John M. Milling, Esquire

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July 13, 1992

Opinion concerning a portion of S.C. Code Ann. § 7-13-40, as amended by Act No. 253 of 1992, concerning transmission of candidates’ filing fees to the State Election Commission.

Requested by: J. Lynn McCants, Executive Director, State Election Commission

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July 10, 1992

Opinion concerning the constitutionality of S.1432, R-519, an act amending Act No. 345 of 1965, relative to the Spartanburg Municipal Civil Service System.

Requested by: Mark R. Elam, Esquire, Senior Legal Counsel to the Governor

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July 9, 1992

Opinion concerning whether the American Legion Post 100, in an instance where the Post’s treasury contains more money than is needed for its activities, may divide the cash assets among the Post members.

Requested by: The Honorable Marion P. Carnell, Member, House of Representatives

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July 8, 1992

Opinion requesting as to whether an individual may carry a pistol in a glove compartment of a motor vehicle.

Requested by: The Honorable Isadore E. Lourie, Senator, District No. 21

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July 6, 1992

Opinion concerning the Campus Incentive Program and local salary supplements for teachers.

Requested by: The Honorable Donny Wilder, Member, South Carolina House of Representatives

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July 2, 1992

Opinion advising as to a county’s responsibility to fund the Solicitor’s office at the appropriate level.

Requested by: Gary A. Smoak, County Administrator, County of Orangeburg

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July 1, 1992

Opinion concerning whether a domesticated foreign corporation can qualify for in-state preference in procurement.

Requested by: The Honorable Joe Wilson, Senator, District No. 23

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July 1, 1992

Opinion concerning whether a dual office holding situation exists if a member of the South Carolina Coastal Council simultaneously serves as Executive Director of the State Election Commission.

Requested by: C.C. Harness, III, General Counsel, South Carolina Coastal Council

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June 29, 1992

Opinion addressing a number of questions relative to the Governor’s approval or disapproval of bills after sine die adjournment of the General Assembly.

Requested by: The Honorable Carroll A. Campbell, Jr., Governor of the State of South Carolina

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June 26, 1992

Opinion concerning whether the South Carolina Jobs-Economic Development Authority (“JEDA”) may sub-lease its office facilities to Carolina Capital Investment Corporation (“CCIC”) as well as contract with CCIC for CCIC to assume other major leases and for CCIC to rent from JEDA certain equipment, furniture, and fixtures.

Requested by: Mr. Elliott E. Franks, III, Chief Executive Officer, South Carolina Jobs-Economic Development Authority

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June 16, 1992

Opinion concerning the constitutionality of H.4880, R-573, an act clarifying the status of the Hartsville Community Center Building Commission.

Requested by: Mark R. Elam, Esquire, Senior Legal Counsel to the Governor

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June 16, 1992

Opinion concerning whether the Recycling Market Council is bound by the August, 1992 report date even though the Council was not fully formed until June, 1992.

Requested by: Kay Clamp, Manager of Public Affairs, South Carolina State Development Board

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June 16, 1992

Opinion concerning whether a dual office holding situation exists if individuals serving on the Recycling Market Development Council simultaneously hold an office.

Requested by: Kay D. Clamp, Manager of Public Affairs, South Carolina State Development Board

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June 12, 1992

Opinion concerning whether a dual office holding situation exists if the President of Horry-Georgetown Technical College simultaneously serves in the House of Representatives.

Requested by: D. Kent Sharples, President, Horry-Georgetown Technical College

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June 11, 1992

Opinion concerning whether a dual office holding situation exists if a deputy sheriff simultaneously serves as a member of the North Spartanburg Fire District Commission.

Requested by: The Honorable Carole C. Wells, Chairman, Spartanburg County Legislative Delegation

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June 11, 1992

Opinion concerning whether Richland County Council has the authority to reduce appropriations or to fail to appropriate funds to the Richland County Veterans Affairs Office.

Requested by: The Honorable Isadore E. Lourie, Senator, District No. 21

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June 11, 1992

Opinion concerning whether a dual office holding situation exists if certain members of the House of Representatives are simultaneously employed by the Darlington County Board of Education and by the Florence-Darlington Technical Education College respectively.

Requested by: The Honorable Robert G. Clawson

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June 9, 1992

Opinion addressing several questions arising from Act. No. 310 of 1992 which establishes a procedure for the transfer of specified criminal cases from the general sessions docket to a magistrate or municipal court docket.

Requested by: Motte L. Talley, Esquire, South Carolina Court Administration

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June 1, 1992

Opinion concerning whether jail canteen profits should go to the county general fund, or if there is discretion as to how such funds should be handled.

Requested by: Mr. Jerry A. Hyatt, Director, Sumter County Correctional Center

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June 1, 1992

Opinion regarding the constitutionality of H.4799, R-496, an act to provide for the levying of tax millage for certain political subdivisions, agencies, and commissions in Charleston County.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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May 29, 1992

Opinion concerning the current members of the South Carolina Wildlife and Marine Resources Commission and the effect of the recent redesignation of congressional districts.

Requested by: Dr. James A. Timmerman, Jr., Executive Director, South Carolina Wildlife & Marine Resources Department

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May 29, 1992

Opinion concerning two conflicting letters received by a magistrate regarding his retirement date. While a letter from the State Administrative Office advised him that he must retire due to his being 72 years of age, a letter from the Governor stated that his term would expire in 1995; this opinion addresses the question of which instruction would control.

Requested by: The Honorable Harvey S. Peeler, Jr., Senator, District No. 14

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May 26, 1992

Opinion concerning the proper identification required for the sale of alcoholic beverages.

Requested by: The Honorable Glenn G. Reese, Senator, District No. 11

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May 22, 1992

Opinion concerning the procedure to dissolve a rural water district in South Carolina.

Requested by: The Honorable Robert J. Sheheen, Speaker of the House of Representatives

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May 22, 1992

Opinion concerning what number of votes would constitute a majority of a legislative delegation when voting on appointments.

Requested by: The Honorable Jarvis R. Klapman, Chairman, Lexington County Legislative Delegation

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May 18, 1992

Opinion regarding the constitutionality of S.1347, R-415, an act amending Act No. 902 of 1964, relative to the Abbeville County Historic Preservation Commission.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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May 12, 1992

Opinion concerning whether Registers of Mesne Conveyances (RMC’s) and Clerks of Court must accept partial assignments of mortgages for recording.

Requested by: The Honorable Virginia T. Hafen, Register of Mesne Conveyance for Spartanburg County

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May 7, 1992

Opinion concerning whether the State Housing Authority is required to promulgate regulations for its Program Fund (established in § 31-13-340) through the procedures specified in Title I Section 23 of the South Carolina Code of Laws, the State’s Administrative Procedures Act.

Requested by: Kenneth D’Vant Long, Director, State Reorganization Commission

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May 6, 1992

Opinion concerning (1) whether a dual office holding situation exists if a member (and chairman) of the Dorchester County Election Commission simultaneously serves as a member of the State Council on Vocational and Technical Education (2) whether a dual office holding situation exists if a member of the Dorchester County Election Commission simultaneously serves as chairman or a member of the Dorchester County Commission on Alcohol and Drug Abuse (3) whether a dual office holding situation exists if a member of the Dorchester County Voter Registration Board simultaneously serves on the Berkely-Charleston-Dorchester Council of Governments and the Dorchester County Economic Development Board.

Requested by: The Honorable Michael T. Rose, Senator, District No. 38

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May 6, 1992

Opinion clarifying the types of services which regional councils of governments can provide to their member local governments.

Requested by: The Honorable John Drummond, Senator, District No. 10

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May 4, 1992

Opinion concerning whether the $1.00 assessment for the Dillon County Law Library should be turned over to the Clerk of Court or the County Treasurer.

Requested by: The Honorable Tracy Pelt, Summary Court Judge

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May 4, 1992

Opinion regarding the Shock Incarceration Program Act, Sections 24-13-1310 et seq. of the Code and addressing two practices involved in the operation of the program that may be of questionable legality.

Requested by: Mr. Kenneth D’Vant Long, Director, State Reorganization Commission

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April 29, 1992

Opinion concerning whether S.C. Code Ann. Section 43-33-330 provides a limit of terms for all members of the South Carolina Protection and Advocacy System or only for those members appointed by the Governor.

Requested by: The Honorable Joe Wilson, Senator, District No. 23

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April 28, 1992

Opinion regarding whether financial reports submitted by schools to help establish financial stability as part of the Application for License would be subject to disclosure under the Freedom of Information Act.

Requested by: The Honorable Fred R. Sheheen, Commissioner, South Carolina Commission on Higher Education

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April 28, 1992

Opinion referencing a letter written to the Honorable John Drummond, dated December 3, 1991, and providing comments as to the matters raised therein. As to specific actions taken by the Budget and Control Board on certain dates, the opinion addresses the authority of the Budget and Control Board to so act.

Requested by: The Honorable Ernest L. Passailaigue, Jr., Senator, District No. 43

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April 22, 1992

Opinion regarding whether Mr. Perot would be able to substitute a candidate for Vice President in his petition candidacy for President since the present candidate for Vice President, James B. Stockdale, is only an interim Vice Presidential choice that will be replaced at some date in the future.

Requested by: James B. Ellisor, Executive Director, State Election Commission

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April 21, 1992

Opinion concerning the inflation factor that must be applied to determine the local financial effort that must be maintained by school districts.

Requested by: The Honorable Barbara S. Nielsen, Ed. D., State Superintendent of Education

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April 21, 1992

Opinion concerning whether the Williamsburg County Assessor has the same authority in personnel matters as an elected official.

Requested by: The Honorable J. Yancey McGill, Senator, District No. 32

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April 20, 1992

Opinion concerning whether the number of members of the Darlington County Board of Education (County Board) may be reduced from twelve members to eight when the effect of doing so might cut short the terms and eliminate the offices of some members who are in the middle of their terms.

Requested by: The Honorable Denny W. Neilson, Member, House of Representatives

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April 17, 1992

Opinion concerning whether a dual office holding situation exists if a city or county fireman simultaneously serves as county coroner.

Requested by: Mr. Debo Jacks

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April 15, 1992

Opinion regarding what is considered “earnable compensation” as set forth in Section 9-9-10(13) of the Code for retirement purposes for members of the General Assembly.

Requested by: The Honorable Marshall B. Williams, President Pro Tempore, South Carolina Senate

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April 15, 1992

Opinion concerning whether public service districts would be allowed to operate under last year’s budget in the event a veto cannot be overridden this year on legislation similar to that of years past.

Requested by: The Honorable D. N. Holt, Jr., Chairman, Charleston County Legislative Delegation

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April 14, 1992

Opinion regarding a portion of the newly-enacted amendments to the Freedom of Information Act. Specifically, the opinion addresses whether the terms of H. 3305 (now Act. No. 269 of 1992) inhibit in any way the accessing of home addresses and/or home telephone numbers of public employees for use by non-profit professional organizations in membership recruitment and similar activities.

Requested by: The Honorable Timothy F. Rogers, Member, House of Representatives

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April 9, 1992

Opinion concerning whether a $25.00 fee for expunging criminal records under S.C. Code Ann. Section 8-21-310(21) (Supp. 1991) is limited to one fee per order or whether additional fees may be collected when an order provides for the expungement of multiple offenses. In addition, the opinion addresses whether these fees are subject to the State-County distribution formula under Section 20-7-1510 (1976).

Requested by: Mr. Motte L. Talley, South Carolina Court Administration

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April 9, 1992

Opinion regarding the interpretation of Section 53-1-5 of the Code. Such is a provision of this State’s “blue laws” which are set out in Sections 53-1-5 “(t)he provisions of this chapter do not apply after the hour of 1:30 p.m. on Sunday.”

Requested by: The Honorable James R. Metts, Ed.D., Sheriff, Lexington County

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April 8, 1992

Opinion regarding an interpretation of Section 32 of Part II of Act No. 171 of 1991, the 1991-1992 Appropriations Act, which provides for certain bingo revenues to be placed in the Fund.

Requested by: The Honorable Isadore E. Lourie, Senator, District No. 21

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April 3, 1992

Opinion concerning whether compensation in conjunction with hours worked determines the value of a part-time position. Also, can magistrates be appointed to fill two vacancies created by resignation, and is it not the prerogative and duty of the Chesterfield County Council under Act 678 of 1988 to make this determination?

Requested by: The Honorable Donald H. Holland, Senator, District No. 27

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April 2, 1992

Opinion regarding the requirement for a magistrate to retire by the end of the fiscal year following his 72nd birthday.

Requested by: R. L. McCurdy, Staff Attorney, South Carolina Court Administration

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March 30, 1992

Opinion concerning a request by Florence County to match an in-kind contribution pursuant to Act No. 638, §1, par. 35, 1988 S.C. Acts 11, relative to the Florence County Civic Center.

Requested by: The Honorable Grady L. Patterson, Jr., State Treasurer

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March 30, 1992

Opinion concerning the legality of the Charleston/Dorchester Community Mental Health Center transferring one appointment from Charleston County to Dorchester County.

Requested by: The Honorable D. N. Holt, Jr., Chairman, Charleston County Legislative Delegation

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March 30, 1992

Opinion regarding the meaning of the term “administrative costs” as it appears in S.C. Code Ann. Section 40-54-20.

Requested by: J. Gordon Harris, Chief, Horry County Police Department

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March 30, 1992

Opinion concerning the constitutionality of H.4546, R-323, an act to create the Fairfield County Economic Development Board and provide for its members and their terms, purposes, powers, and duties.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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March 27, 1992

Opinion concerning whether a dual office holding situation exists if a member of the governing body of the South Carolina Reinsurance Facility simultaneously serves on the Spartanburg County Commission for Higher Education.

Requested by: Marion L. McMillan, Jr., First Vice President, Smith Barney Harris Upham & Co., Inc.

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March 27, 1992

Opinion concerning whether the jury commissioners must be present at the same location to draw jurors using the county computer.

Requested by: The Honorable Liz Godard, Aiken County Clerk of Court

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March 25, 1992

Opinion concerning whether a recently enacted ordinance deeming it unlawful for any person to loiter at a public boat landing unless they are actively involved in the retrieval or launching of a water craft is unduly restrictive.

Requested by: The Honorable Landon M. Louthian, Jr., Chief Judge, Municipal Court of Hananhan

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March 23, 1992

Opinion concerning a proposed ordinance purporting to establish certain retirement benefits for certain retired city employees or officers in a manner which seems to bind future city councils from further acting on the matter.

Requested by: The Honorable Donald H. Holland, Senator, District No. 27

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March 20, 1992

Opinion asking whether it is permissible for an employee of the Department of Agriculture to serve on the board of a private, non-profit organization charged with promoting agricultural commodities.

Requested by: Sally M. Rentiers, General Counsel, South Carolina Department of Agriculture

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March 19, 1992

Opinion asking when and how coroners transporting dead bodies can get information on infectious diseases regarding a body for which they are responsible.

Requested by: The Honorable Sue R. Townsend, Coroner, Aiken County

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March 19, 1992

Opinion concerning whether certain revenues derived from certain motor fuel taxes, commonly known as “SHIMS” funds, may be reallocated for purposes unrelated to those purposes for which the fund was created.

Requested by: The Honorable John Drummond, Senator, District No. 10

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March 16, 1992

Opinion questioning whether Section 16-23-20 would allow a licensed retail pistol dealer to carry a pistol in the course of his business or whether a permit authorizing the carrying of a pistol would be required.

Requested by: Robert M. Stewart, Chief, South Carolina Law Enforcement Division

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March 16, 1992

Opinion questioning whether an individual who holds a firearm dealer’s license may carry a pistol on his person away from his place of business.

Requested by: Walter M. Bailey, Jr., Corporation Counsel, Town of Summerville

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March 10, 1992

Opinion questioning whether off-duty deputies of the Lexington County Sheriff’s Department may wear uniforms of the Town of Pine Ridge while patrolling the Town pursuant to an agreement between the Town and the Sheriff’s Department.

Requested by: O. T. Watts, Chief of Police, Town of Pine Ridge

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March 9, 1992

Opinion concerning the constitutionality of H.4308, R-300, an act relative to the Board of Commissioners of the Marion County Hospital District.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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March 5, 1992

Opinion asking whether, in appointing the South Carolina Director of Veterans Affairs, the Governor must presently accept the recommendation of the American Legion in making this appointment.

Requested by: The Honorable David C. Waldrop, Jr., Member, House of Representatives

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March 4, 1992

Opinion questioning whether there are any constitutional or other potential legal problems with proposed legislation, H.4133.

Requested by: The Honorable Joseph B. Wilder, Chairman, Joint Legislative Committee for the Disabled

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March 3, 1992

Opinion questioning whether the term “municipality” as used in Section 58-23-60(1) of the Code includes a county.

Requested by: Gayle B. Nichols, Staff Counsel, The Public Service Commission

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February 27, 1992

Opinion examining H.4244, which would establish a State Health Services Cost Review Commission and prescribe its functions, for “legal problems” specifically related to the manner of appointment of commission members.

Requested by: The Honorable William S. Houck, Jr., M.D., Member, House of Representatives

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February 25, 1992

Opinion inquiring as to whether the Beaufort County Board of Education is affected by a referendum concerning the Beaufort County Council. The referendum reorganizes the County Council and its election districts.

Requested by: The Honorable Harriet Keyserling, Member, House of Representatives

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February 25, 1992

Opinion concerning whether a dual office holding situation exists if the Fire Chief or Fire Marshal of the Clarendon County Fire District simultaneously serves as mayor of an incorporated town in which he has no responsibility.

Requested by: Carter H. Jones, Chief of Department, Clarendon County Fire District

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February 25, 1992

Opinion concerning the constitutionality of S.797, R-284, an act revising the area of the Fairfield County Recreation District.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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February 20, 1992

Opinion regarding whether a proposed amendment to a provision in Section 3 of Act 643 of 1960, if enacted, would have to be cleared beforehand by the Justice Department under a Voting Rights Act review, and whether the Justice Department would require the trustee districts to be single-member.

Requested by: The Honorable Ronald P. Townsend, Member, House of Representatives

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February 20, 1992

Opinion questioning the authority of Chief Magistrate McLeod to assign Magistrate Lynch to weekend duty in the Florence area, since such duty in Florence removes Magistrate Lynch from his usual work location.

Requested by: The Honorable Woodrow M. McKay, Member, House of Representatives

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February 20, 1992

Opinion referencing recently enacted ethics legislation, Act No. 248 of 1991, which prohibits legislators from serving on state boards and commissions except where specifically authorized. The opinion then addresses a situation involving the appointment of a non-legislative member to the Wildlife and Marine Resources Commission and applies the aforementioned ethics legislation.

Requested by: The Honorable L. Edward Bennett, Chairman, Agricultural, Natural Resources and Environmental Affairs Committee, House of Representatives

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February 18, 1992

Opinion regarding the constitutionality of S.988, R-267, an act authorizing the Anderson County Fire Protection Commission to appoint and commission fire investigators.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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February 18, 1992

Opinion regarding the constitutionality of H.4042, R-277, an act reconstituting the governing body of the St. Paul’s Fire Commission in Charleston County.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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February 18, 1992

Opinion concerning the constitutionality of S.C. Code Ann. § 22-2-190(4) to revise magistrates’ jury areas for Anderson County.

Requested by: Mark R. Elam, Esquire, Senior Counsel to the Governor

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February 13, 1992

Opinion regarding the introduction of legislation to provide an exemption for agriculture from all county or municipal enacted zoning and development standard ordinances except for buildings designed for public access.

Requested by: The Honorable John J. Snow, Jr., Member, House of Representatives

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February 13, 1992

Opinion regarding whether a county is required to pay a part-time magistrate for a minimum of ten hours a week and referencing Section 22-8-10(3) of the Code, which states that a part-time magistrate is defined as a magistrate who regularly works less than forty hours a week performing official duties.

Requested by: The Honorable Glenn G. Reese, Senator, District No. 11

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February 6, 1992

Opinion concerning whether an additional filing fee can be charged for the filing of an Amended Transcript.

Requested by: The Honorable Liz Godard, Clerk of Court, Aiken County

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February 4, 1992

Opinion concerning whether an individual appointed as a Spartanburg County magistrate must reside within the magisterial district for which he is appointed.

Requested by: The Honorable Glenn G. Reese, Senator, District No. 11

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January 31, 1992

Opinion concerning whether a dual office holding situation exists if a sergeant with Wackenhut Services at the Savannah River nuclear facilities simultaneously serves as a commissioned law enforcement officer for the town.

Requested by: Robin D. Rucker, Chief, Wagener Police Department

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January 31, 1992

Opinion questioning whether a law enforcement officer can arrest or detain a juvenile when the officer has probable cause to believe that the juvenile has committed an offense without a pick-up order or other formal arrest warrant. Also, if a formal arrest document is necessary, must it be a pick-up order, or is some other arrest warrant or document permissible?

Requested by: The Honorable L. Mendel Rivers, Jr., Judge, The Family Court of The Ninth Judicial Circuit

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January 28, 1992

Opinion asking: if a person is arrested with a warrant issued by a probation agent and taken to any jail in South Carolina, is the jail required to accept the prisoner for detention upon delivery of the prisoner and a copy of the warrant. And assuming the jail is required to accept the prisoner, are there any exceptions to the rule that would allow a jailer to refuse to accept custody?

Requested by: The Honorable Michael J. Cavanaugh, Commissioner, Department of Probation, Parole and Pardon Services

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January 28, 1992

Opinion referencing a 1990 amendment to the South Carolina Code and discussing the applicability of § 40-3-165 in several different circumstances.

Requested by: The Honorable Louis P. Batson, III, Chairman, State Board of Architectural Examiners

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January 21, 1992

Opinion advising that the Joint Appropriations Review Committee is a joint legislative committee responsible for authorizing receipt and expenditure of non-State appropriated funds that are not included in the annual appropriations act.

Requested by: The Honorable Patrick B. Harris, Chairman, Joint Appropriations Legislative Review Committee

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January 21, 1992

Opinion reviewing an earlier opinion issued on May 6, 1986, which construed S.C. Code Ann. §7-13-800 (1976) and concluded that voting machines which would permit voters to write in candidates’ names by an electronic keyboard or touchpad would not appear to comport with the requirements of §7-13-800.

Requested by: James B. Ellisor, Executive Director, South Carolina State Election Commission

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January 16, 1992

Opinion concerning whether the Family Counseling Center of Greenville, Inc., would be considered a public body under the Freedom of Information Act.

Requested by: The Honorable Nick A. Theodore, Lieutenant Governor, State of South Carolina

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January 13, 1992

Opinion asking whether the November 20, 1981 opinion attached to the opinion request remains a valid published opinion.

Requested by: The Honorable James L. Solomon, Jr., Commissioner, South Carolina Department of Social Services

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January 9, 1992

Opinion questioning whether Sumter County is required to be financially responsible for prisoners of the City of Sumter charged with general sessions offenses who are housed in the Sumter County Correctional Center prior to the prisoners being formally charged with an offense by a warrant or indictment, whichever occurs first.

Requested by: Henry B. Richardson, Jr., Esquire

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January 9, 1992

Opinion concerning whether a dual office holding situation exists if a member of the Edgefield County Water and Sewer Authority simultaneously serves on the Edgefield County Hospital Board.

Requested by: T. C. McCain, Edgefield County Administrator

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January 3, 1992

Opinion concerning whether persons from another state may serve on the Wil Lou Gray Opportunity School’s Board of Trustees nominated by the Alumni Association.

Requested by: George M. Smith, Director of Development, Wil Lou Gray Opportunity School

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Columbia, SC

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