1993 Opinions

December 21, 1993

Opinion requesting as to whether a Register of Mesne Conveyance must make available mylar copies of plats.

Requested by: James T. McCarter, P.E., South Carolina State Board of Registration for Professional Engineers and Land Surveyors

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December 20, 1993

Opinion concerning whether a dual office holding situation exists if a member of Lexington County Council simultaneously serves as the chief investigator for the Lexington County Defender Agency, Inc.

Requested by: Ms. Tammy Rish Kitchens

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December 20, 1993

Opinion asking whether state employees who are members of state boards or commissions would be entitled to collect mileage for using their personal vehicles and any subsistence provided to other board members performing like functions, provided the expenses were not paid by the state agency for which they work.

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

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December 15, 1993

Opinion stating that a number of appointments to the South Carolina Business Education Partnership expire as of January 1, 1994 and addressing whether the incumbent member may continue to serve until the vacancy can be filled through the appointment process. The opinion also responds to a request for any opinions on public bodies promulgating operating rules.

Requested by: Robert D. Hazel, Executive Director, South Carolina Business Education Partnership

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December 10, 1993

Opinion relating to the multi-county industrial parks and special source revenue bonds.

Requested by: Wayne L. Sterling, Interim Director, South Carolina Department of Commerce

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December 9, 1993

Opinion asking whether the Fire Academy would be considered a state technical education institution in light of the various statutes respecting the Fire Academy and the Business Enterprise Program of the Commission for the Blind.

Requested by: The Honorable Donald Gist, Commissioner, South Carolina Commission for the Blind

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December 8, 1993

Opinion requesting as to whether the International City Management Association may legally market its deferred compensation plans in South Carolina.

Requested by: Katherine Wolfe, President, Deferred Compensation Commission

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December 7, 1993

Opinion questioning the applicability of constitutional search and seizure issues to the investigations to be performed by coroners and medical examiners pursuant to the referenced provisions.

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

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December 7, 1993

Opinion requesting as to whether a school board or state supported school can prohibit political candidates from campaigning and/or passing out political paraphernalia to persons attending local football games.

Requested by: The Honorable Stephen P. Lanford, Sr., Member, House of Representatives, District No. 35, Spartanburg County

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December 6, 1993

Opinion requesting as to whether “adequate health care,” as including “any medical or nonmedical remedial health care permitted or authorized under state law,” would include solely spiritual or solely other religious means of health care.

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

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November 24, 1993

Opinion concerning the authority of the Lancaster County Natural Gas Authority to make a contribution to the Catawba Indian Settlement.

Requested by: Emil W. Wald, Esquire

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November 23, 1993

Opinion requesting as to whether or not jailers and the jail administrator are subject to the grievance procedures as established by the Williamsburg County Council.”

Requested by: W.E. Jenkinson, III, Esquire

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November 22, 1993

Opinion inquiring whether it is lawful for the Register of Me[sn]e Conveyance[s] of a county who is an elected official to dock an employee’s pay for mistakes that employee makes without any sort of grievance or hearing process.

Requested by: The Honorable Doug Smith, Member, House of Representatives

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November 17, 1993

Opinion questioning whether the proposed ordinance establishing a Beach Preservation Fee for the Town of Hilton Head Island is a valid ordinance?

Requested by: The Honorable Jennings G. McAbee, House of Representatives, District 12 McCormick-Greenwood-Saluda

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November 17, 1993

Opinion requesting as to the meaning of Proviso 20.35, of Act 164, Part I, 1993 S.C. Acts 827.

Requested by: The Honorable Phil P. Leventis, Senator, Sumter County

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November 17, 1993

Opinion advising that referendums to permit Sunday sales of alcoholic beverages have been defeated twice in part of Horry County and asking how S.731 would affect the matter-whether an unincorporated area of Horry County would be required to wait until 48 months had lapsed since the last county referendum on Sunday sales?

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

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November 16, 1993

Opinion stating that the American Party of South Carolina has changed its name to the United States Taxpayers Party of South Carolina and addressing regulations associated with changing the name of a certified political party.

Requested by: James F. Hendrix, Acting Executive Director, South Carolina State Election Commission

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November 16, 1993

Opinion asking whether the Physicians’ Patient Records Act (S.C. Code Ann. §44-115-10 et seq (Supp. 1992)) is applicable to hospitals and other medical providers.

Requested by: The Honorable James H. Harrison, Member, House of Representatives

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November 10, 1993

Opinion showing the sequence of appointments of the member representing the Twelfth Judicial Circuit and addressing the question of when the current member’s term expires.

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

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November 9, 1993

Opinion asking whether a public school teacher who is involved in testing attitudes and behaviors would meet the definition of practicing psychology so as to be required to meet State requirements for being a psychologist.

Requested by: The Honorable Michael L. Fair, House of Representatives, Member, District No. 19, Greenville County

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November 8, 1993

Opinion inquiring as to what authority the Spartanburg County Legislative Delegation has concerning the removal of board members, particularly referencing the Commission for Higher Education.

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

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November 8, 1993

Opinion discussing John Smoak’s concern about the amount of money that he must pay in order to establish additional service credit for the time he spent in the military.

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

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November 8, 1993

Opinion asking: can the City of Rock Hill by postponing the 1991 and 1993 general elections extend the terms of office of council members and mayor beyond the required four year terms and can a municipal officer exercise the duties of his or her office once the term of that office has expired?

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

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November 4, 1993

Opinion questioning which of the following may serve as affiant on an arrest warrant for trespassing: a church secretary because the property at issue is church property, or an individual with a group which was holding a private meeting at the site where the incident allegedly occurred.

Requested by: The Honorable Winfred L. Flowers, Chief Magistrate for Darlington County

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November 2, 1993

Opinion addressing multiple questions regarding situations involving shareholders, doctors, and patients associated with a Corporation that provides Occupational Health services.

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

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November 2, 1993

Opinion requesting whether the practice of Psychology is regulated in South Carolina.

Requested by: The Honorable Herbert Kirsh, Chairman, Sunset Subcommittee, State Reorganization Commission

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November 2, 1993

Opinion asking whether the Division on Aging is to have a separate seat on the Human Services Coordinating Council.

Requested by: The Honorable Patrick B. Harris, Chairman, Joint Legislative Committee on Aging

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November 2, 1993

Opinion concerning the State’s potential liability in situations where a third party is exposed to a bloodborne pathogen as a result of having come into contact with contaminated bodily fluids at an accident or crime scene.

Requested by: The Honorable Jerry N. Govan, Jr., Member, House of Representatives

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October 27, 1993

Opinion referencing S.C. Code Section 38-53-50 which provides for review by the “appropriate judge” in circumstances where a surety desires to surrender a defendant.

Requested by: Joe W. Mitchell, Sheriff, York County Detention Center

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October 20, 1993

Opinion addressing a situation involving the payment of overdue ad valorem taxes and tax penalties accrued by the owner of real property, Blackacre, and advising which tax year the County Treasurer or Tax Collector must apply the payments to when they are made.

Requested by: Mr. Michael L. Horton, Assistant Comptroller General

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October 18, 1993

Opinion on the legal authority for removal of the Confederate Battle Flag atop the State House. Requested by The Honorable Darrell Jackson, Member, South Carolina Senate. Read full opinion.

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October 18, 1993

Opinion addressing several issues facing Sumter County Council, as to the effect of a member of Sumter County Council establishing a residence outside the district of his election.

Requested by: Henry B. Richardson, Jr., Esquire, Sumter County Attorney

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October 13, 1993

Opinion referencing a 1992 amendment to the statutes regarding the Pretrial Intervention Program, S.C. Code Sections 17-22-10 et seq. which permits an offender to make an application for participation in the program to the chief administrative judge in the circuit.

Requested by: The Honorable John W. Tucker, Jr., Member, House of Representatives

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October 13, 1993

Opinion concerning whether the community mental health boards exercise sovereign power of the state.

Requested by: The Honorable Patrick B. Harris, Member, House of Representatives

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October 7, 1993

Opinion concerning whether the State Department of Education has the authority to bar for life an applicant for a professional trade and industry certificate from taking the Education Entrance Examination (“EEE”) because such applicant did not earn a passing score on the EEE during the five year period in which he held a provisional trade and industry credential.

Requested by: The Honorable Darrell Jackson, Senator, District No. 21

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October 6, 1993

Opinion concerning whether a County Transportation Committee (CTC) is a “governmental entity” as that term is used in the South Carolina Tort Claims Act.

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

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October 6, 1993

Opinion regarding the availability of information on applicants for appointment or election to boards or commissions over which the Charleston County Legislative Delegation has appointment, election, or recommending authority, pursuant to the Freedom of Information Act.

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

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October 6, 1993

Opinion regarding property interests obtained by a company operating a condominium hotel. The Opinion also addresses questions relating to ownership of the property and relating to real estate broking and property managing license requirements.

Requested by: John A. Birgerson, Staff Counsel, South Carolina Real Estate Commission

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October 5, 1993

Opinion concerning whether a dual office holding situation exists if a member of the State Board of Education simultaneously serves on a School Board Improvement Council. Also, would a dual office holding situation exist if a member of the School District Board of Trustees simultaneously served as a member of a Peer Review Team in another school district?

Requested by: The Honorable Barbara Stock Nielsen, State Superintendent of Education

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October 5, 1993

Opinion regarding what action would be required to finalize a change in form of government for counties and municipalities.

Requested by: Hubbard W. McDonald, Jr., Esquire

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September 30, 1993

Opinion regarding S.C. Code Ann. §30-4-50, which in part specifically declares the names, sex, race, title, and dates of employment of all officers and employees of public bodies be public information.

Requested by: The Honorable William C. Mescher, Senator District 37

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September 29, 1993

Opinion questioning can information reported to the Department of Revenue by licensed bingo parties under Chapter 21 of Title 12 be disclosed to the public.

Requested by: Harry T. Cooper Jr., Esquire, Director, Policy and Special Procedures

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September 29, 1993

Opinion asking whether the consent of Williamsburg County Council is necessary in a lease-purchase agreement.

Requested by: The Honorable Alex Chatman, Supervisor of Williamsburg County

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September 21, 1993

Opinion asking whether previous work amounted to more than ordinary maintenance on the billboard, thus causing the non-conforming use to end, considering state outdoor advertising regulations.

Requested by: The Honorable David Wright, Member of House of Representatives

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September 21, 1993

Opinion inquiring whether the Military Department could make payment in furtherance of those service contracts in amounts in excess of the cash balance available in the appropriated fund.

Requested by: Brigadier General Charles L. Blount, Deputy Adjutant General, Office of the Adjutant General

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September 17, 1993

Opinion questioning what is the effect on the amount of revenues to be received by an existing municipality from the Local Option Sales Tax (LOST) in a year in which a new municipality is incorporated.

Requested by: Mr. E. Gregorie Frampton, Executive Director, S.C. Department of Revenue and Taxation

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September 13, 1993

Opinion questioning whether county code enforcement officers commissioned pursuant to S.C. Code Section 4-9-145 may use a blue light to stop vehicles when performing law enforcement duties.

Requested by: Deborah Kelly LeaMond, Esquire, Staff Attorney, Berkeley County Water and Sanitation Authority

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September 10, 1993

Opinion concerning whether a dual office holding situation exists if a member of the Richland/Lexington Board of Disabilities and Special Needs (formerly Mental Retardation Board) Simultaneously serves on the Governor’s Nuclear Advisory Council, the Southeast Interstate Low Level Radioactive Waste Management Compact Advisory Committee, and the Nuclear Waste Consultation Committee.

Requested by: Bob Bartles, Executive Director, Richland/Lexington Mental Retardation Board

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September 9, 1993

Opinion questioning whether counties and municipalities may utilize provisions of the Setoff Debt Collection Act, S.C. Code Sections 12-54-410 et seq. to collect delinquent debts owed as the result of charges imposed on individuals by a state magistrate’s or municipal court.

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

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September 7, 1993

Opinion concerning whether a dual office holding situation exists if a member of the Chesterfield County Board of Education simultaneously serves on the Board of Directors of the Chesterfield County Rural Water Co., Inc.

Requested by: Mr. James N. Sweeney

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September 7, 1993

Opinion concerning the development of regional industrial parks under S.C. Const. Art. VIII § 13, and S.C. Code Ann. § 4-1-170 (Supp. 1992).

Requested by: Mr. Wayne L. Sterling, Interim Director, South Carolina Department of Commerce

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August 30, 1993

Opinion questioning the authority of a municipal judge to order community service.

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

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August 30, 1993

Opinion concerning whether a dual office holding situation exists if a candidate for Spartanburg City Council was simultaneously employed as a Graphics Coordinator for the Spartanburg County Planning Department.

Requested by: Ms. Linda C. Dogan

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August 25, 1993

Opinion questioning whether a magistrate may impose a fine or jail time and order a defendant to make restitution to the victim of a fraudulent check violation.

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

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August 24, 1993

Opinion asking whether appointments can be made at the discretion of the Aiken and Barnwell county legislative delegations to community mental health boards.

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

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August 23, 1993

Opinion concerning as to whether the Area Commission of Williamsburg Technical College has the legal capacity to decline participation in the retirement incentive proviso of this year’s Appropriation Act, Act No. 164, Part I § 14P.6, 1993 S.C. Acts.

Requested by: John T. Wynn, Ph.D., President, Williamsburg Technical College

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August 18, 1993

Opinion concerning S.C. Code Ann. §59-111-20 which was amended during the 1993 legislative session.

Requested by: Bill J. Sams, Director, South Carolina Department of Veterans Affairs

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August 18, 1993

Opinion questioning what traffic offenses should be considered “non-moving traffic offenses” for purposes of assessing and collecting fees on traffic cases.

Requested by: The Honorable Walter Jones, Chief Judge, Richland County Summary Courts

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August 11, 1993

Opinion concerning as to whether Act 581, 1984 S.C. Acts 3221, unconstitutionally limits the authority of the Governor to remove elected officials from office and gives it, instead, to a local government entity.

Requested by: The Honorable Roger M. Young, Member of House of Representatives

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August 9, 1993

Opinion concerning the make-up of the Lexington County Legislative Delegation.

Requested by: The Honorable Joe Wilson, State Senator

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August 5, 1993

Opinion questioning whether property owned by a professional bondsman and property owned by an individual is considered and treated the same way when used as collateral for a bond.

Requested by: The Honorable Lawrence E. Richter, Jr., Senator, District No. 44

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August 3, 1993

Opinion concerning a situation involving an individual wishing to sell thirty pounds of copper to a metal dealer and questioning whether it is required that he show identification if he has a friend with him and has indicated that they are selling the copper together, each selling fifteen pounds.

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

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August 2, 1993

Opinion concerning whether local legislation is needed in order to implement a change in school attendance lines in the four school districts in York County.

Requested by: The Honorable Robert W. Hayes, Jr., Senator, York County

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July 29, 1993

Opinion inquiring if the county legislature delegations can continue to make appointments in light of the present status of the reapportionment lawsuit.

Requested by: The Honorable Joe Wilson, State Senator

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July 28, 1993

Opinion inquiring as to who may be appointed to the newly-created County Transportation Committee to be established for Edgefield County.

Requested by: The Honorable Charles H. Stone, Member of House of Representatives

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July 23, 1993

opinion concerning whether a dual office holding situation exists if a member of the Board of Trustees simultaneously serves the James Island Firemen’s and Inspection Fund and as a member of the Town of James Island Zoning Board of Adjustment.

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

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July 19, 1993

Opinion asking whether you can take with you upon your retirement certain law books, owned by you personally; these law books were used by you during your tenure upon the Court of Appeals.

Requested by: The Honorable John P. Gardner, Sr., Judge, South Carolina Court of Appeals

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July 16, 1993

Opinion concerning whether a dual office holding situation exists if a member of the Old Ninety Six Tourism Commission simultaneously serves on the Ware Shoals Town Council.

Requested by: The Honorable James S. Klauber, Member of House of Representatives

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July 15, 1993

Opinion questioning whether State law mandates retirement by magistrates by the end of the fiscal year of their seventy-second birthday.

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

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July 14, 1993

Opinion concerning the voting status of an ex officio member of the Patriot’s Point Development Authority.

Requested by: William F. Prioleau, Esquire, Legal Counsel, Patriot’s Point Development Authority

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July 14, 1993

Opinion concerning various provisions of the Probate Code as to who would receive the rest and residue of an estate.

Requested by: The Honorable Harriett Pierce Flynn, Probate Judge of Kershaw County

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June 30, 1993

Opinion concerning several aspects of recently enacted H.3669

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

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June 28, 1993

Opinion on impact of September 4, 1992 decision by the U.S. Secretary of Education to deny the Petition for Renewal of Recognition submitted by the Straight Chiropractic Academic Standards Association. Requested by Alana Holmes, Executive Director, South Carolina Board of Chiropractic Examiners. Read full opinion.

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June 28, 1993

Opinion on impact of September 4, 1992 decision by the U.S. Secretary of Education to deny the Petition for Renewal of Recognition submitted by the Straight Chiropractic Academic Standards Association. Requested by Alana Holmes, Executive Director, South Carolina Board of Chiropractic Examiners. Read full opinion.

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June 28, 1993

Opinion advising that Union County proposes to enter into a multi-county industrial park agreement with Spartanburg County and interpreting S.C. Code Ann. §§ 4-1-170 and 4-1-175 as to questions concerning the proposed industrial park.

Requested by: Jack S. Flynn, Esquire

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June 24, 1993

Opinion asking whether the State Constitution and the initiative and referendum provisions of the Home Rule Act, S.C. Code Ann. § 4-9-1210 et seq., would permit: electors to propose and adopt term limitations by ordinance for members of a county council; and electors to propose and adopt recall provisions by ordinance for members of a county council.

Requested by: The Honorable G. Ralph Davenport, Member, House of Representatives

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June 23, 1993

Opinion requesting as to whether it would be constitutionally permissible for the State of South Carolina to provide state-owned vans to a private, for-profit corporation for the purpose of providing transportation services for a portion of the state’s indigent population at a cost of eighteen (18) cents per mile and providing insurance on the vans through the state’s Insurance Reserve Fund at a greatly-reduced premium.

Requested by: The Honorable Jesse E. Hines, Member, House of Representatives

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June 22, 1993

Opinion questioning whether a magistrate should be considered a state employee or a county employee.

Requested by: The Honorable Lee R. Deese, Chief Magistrate, Lancaster County

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June 21, 1993

Opinion questioning the interpretation of pending legislation which provides early retirement incentives as it might apply to a state Highway Patrolman’s nomination for U.S. Marshal, particularly if the appointment becomes effective prior to August 1, 1993.

Requested by: Major Israel Brooks, Jr., State Highway Patrol

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June 21, 1993

Opinion concerning whether a dual office holding situation or conflict of interest would exist if a deputy county auditor simultaneously serves as town mayor.

Requested by: The Honorable DeWitt Williams, Member, House of Representatives

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June 16, 1993

Opinion asking advice as to whether the Commission’s interpretations of the statutory provisions of Senate Bill S.610 would be lawful.

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

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June 16, 1993

Opinion concerning the constitutionality of S.455, R-211, an act which authorizes the transfer of certain cases from general sessions court to magistrate’s or municipal court.

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

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June 16, 1993

Opinion concerning the constitutionality of H.4219, R-238, an act relating to the Union County Department of Social Services.

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

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June 16, 1993

Opinion concerning the constitutionality of R230 of 1993 which relates to the creation of the Spartanburg County Commission for Technical Education so as to modify the membership of the Commission and to change the name of the program head from President to Director.

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

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June 16, 1993

Opinion concerning the constitutionality of H.3562, R-220, an act creating a Registration and Elections Commission for Bamberg County and providing for the filling of any vacancy on an Orangeburg County school district board.

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

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June 16, 1993

Opinion concerning the constitutionality of H.4218, R-269, an act establishing the Board of Election and Registration for Union County.

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

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June 16, 1993

Opinion concerning the constitutionality of R270 of 1993, which authorizes the Board of Trustees of School District 3 in Marion County to borrow not exceeding $300,000 for construction related matters and to make certain provisions for the terms of the borrowing.

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

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June 16, 1993

Opinion concerning the constitutionality of H.4012, R-232, an act to provide that individuals residing in certain residential care facilities may qualify for a supplement under the Department of Social Services General Assistance program if they otherwise qualify or qualify except for income limitations or because of residing in a facility funded by a governmental entity.

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

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June 16, 1993

Opinion on the constitutionality of R. 270 (authorizes the Board of Trustees of School District 3 in Marion County to borrow funds for construction related matters). Requested by Mark R. Elam, Senior Legal Counsel to the Governor. Read full opinion.

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June 16, 1993

Opinion on the constitutionality of R. 230 (creation of the Spartanburg County Commission for Technical Education). Requested by Mark R. Elam, Senior Legal Counsel to the Governor. Read full opinion.

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June 11, 1993

Opinion questioning whether S.C. Code Ann. §20-7-780 is constitutional, citing the decision of the South Carolina Supreme Court in State, ex rel., The Times and Democrat etc. 276 S.C. 26, 274 S.E.2d 910 (1981) regarding the First Amendment rights of news media.

Requested by: Thomas S. Tisdale, Jr., Esquire

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June 11, 1993

Opinion concerning whether a dual office situation exists if the assistant solicitor simultaneously serves as an appointed city attorney.

Requested by: The Honorable William J. Sebnick, Mayor, City of Lake City

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June 11, 1993

Opinion questioning whether a county council must select three nominees from which an appointment may be made, or may a council select “up to three” nominees which would narrow the choices available.

Requested by: The Honorable William D. Keyserling, Member, House of Representatives

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June 11, 1993

Opinion inquiring what occurs when the person elected no longer resides in the single member district from which he was elected.

Requested by: The Honorable John R. Justice, Solicitor, Sixth Judicial Circuit

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June 8, 1993

Opinion asking if the Colleton County Council may establish a separate school millage to fund the operational budget of the Colleton County School District.

Requested by: Mr. Michael L. Horton, Assistant Comptroller General

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June 8, 1993

Opinion questioning whether contracts can be made with a local private security firm to employ guards to fill staffing needs at a detention center in Greenville County.

Requested by: Perry R. Eichor, Director, Criminal Justice Support Department

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June 7, 1993

Opinion asking if, in a county in which the school district and the county governing body have adopted the provisions of §59-69-215, does the county treasurer disburse to the school district all funds related to school district bonds under the School Bond Act at S.C. Code Ann. §59-71-10 (1976)?

Requested by: Mr. Michael L. Horton, Assistant Comptroller General

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June 2, 1993

Opinion concerning S.C. Code Ann. § 59-17-20 (1990) which provides for the alteration or division of school districts.

Requested by: The Honorable Scott Richardson, Esquire, Representative, Beaufort County

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June 2, 1993

Opinion questioning whether off-duty certified officers of Cayce may serve in such a capacity as to have authority in a Kroger food store after displaying a badge and identifying themselves as off-duty police officers.

Requested by: Thomas D. Pye, Assistant Director, Cayce Department of Public Safety

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June 2, 1993

Opinion inquiring as to the status of the Lowcountry and Resort Islands Tourism Commission, as well as the constitutionality of the legislative act which created the Commission.

Requested by: Ladson F. Howell, Beaufort County Attorney

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May 25, 1993

Opinion questioning the impact the disapproval of the referenced regulations and subsequent repeal would have on other provisions, particularly referencing Section 19.

Requested by: C. Jo Ann Wessinger, Esquire, Labor, Commerce and Industry Committee, House of Representatives

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May 25, 1993

Opinion questioning if a sales clerk of a retail business, properly licensed to legally sell beer and wine, sells beer to an underage individual, has the employee made a “transfer” or “given” as those words are used in S.C. Code Section 61-13-287, and may law enforcement agencies employ or utilize underage individuals to cause “transfers” to be made by sales clerks of lawfully licensed beer and wine retail businesses.

Requested by: The Honorable Michael T. Rose, Senator District 38

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May 25, 1993

Opinion inquiring as to the constitutionality of H.3537, a bill which would allow Sunday sales of alcoholic beverages without passage of a local referendum in any area located east of the intercoastal waterway in a county where the annual accommodations tax collections exceed six million dollars.

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

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May 24, 1993

Opinion inquiring as to whether state-chartered banks under the provisions of Title 34, Chapter 33, Section 34-33-10 et seq., S.C. Code Ann., may invest in a Georgia chartered Bankers Bank.

Requested by: The Honorable Grady L. Patterson, Jr., Chairman, State Board of Financial Institutions

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May 21, 1993

Opinion questioning do funds derived from university campus Laundromats and vending machines fall within the purview of part of §129.13 of the current state appropriations act and similar provisions in earlier acts.

Requested by: George L. Schroeder, Director, Legislative Audit Council

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May 21, 1993

Opinion concerning whether service on the Anderson County Board of Education would constitute the holding of an office in the context of dual office holding under the South Carolina Constitution.

Requested by: Mr. Gene Beckman, Boards and Commissions

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May 20, 1993

Opinion concerning Proviso 28.60 of this year’s Appropriations Act which provides as follows: “School districts are required to maintain local salary supplements per teacher, no less than their prior fiscal year level.”

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

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May 20, 1993

Opinion questioning the constitutionality of the requirement set forth in S.C. Code Ann. Section 50-3-316 that mandates residency within a particular county when hiring conservation officers for that county.

Requested by: The Honorable Marion Burnside, Chairman, South Carolina Wildlife & Marine Resources Commission

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May 17, 1993

Opinion concerning the constitutionality of S.593, R-90, an act granting power to the Grand Strand Water and Sewer Authority to round up to the nearest dollar a customer’s bill and disburse the funds realized from this procedure to charitable purposes, with customer approval.

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

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May 12, 1993

Opinion inquiring if the Commission should be required to pay for managers to conduct special elections.

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

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May 10, 1993

Opinion concerning whether the McCormick County Treasurer has the authority to bring an action in Magistrate Court to enforce the collection of unpaid solid waste service fees.

Requested by: The Honorable Glenda Q. Wright, McCormick County Treasurer

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May 4, 1993

Opinion questioning does the fact that a will creates in the surviving spouse a life estate that will terminate upon the remarriage of the spouse prevent the surviving spouse from qualifying for the homestead exemption, so long as the other requirements of the exemption are satisfied.

Requested by: The Honorable Cheryl H. Morgan, Auditor, Lancaster County

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May 4, 1993

Opinion questioning who has the authority in Beaufort County to determine what costs are to be collected as the result of the levy, seizure, and sale of property for delinquent taxes.

Requested by: Mr. Michael L. Horton, Assistant Comptroller General

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May 4, 1993

Opinion concerning whether a dual office holding situation exists if a member of the Highway Commission simultaneously serves on the Board of Commissioners of the Greenville Memorial Auditorium District of Greenville County.

Requested by: Clifford L. Gray, Executive Director, Greenville Memorial Auditorium

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April 26, 1993

Opinion asking as to the constitutionality of H.3787, R-65, an act relating to the New Prospect Area Fire District in Spartanburg County.

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

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April 26, 1993

Opinion asking as to the constitutionality of S.295, R-46, an act relating to the Cherokee Springs Fire District in Spartanburg County.

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

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April 19, 1993

Opinion concerning South Carolina’s Home Detention Act, S.C. Code Ann. Sections 24-13-1510.

Requested by: The Honorable James Cromer, Jr., Member of House of Representatives

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April 16, 1993

Opinion questioning if there is general statutory authority that would allow a county governing body to pay per diem to a member of the County Board of Assessment Appeals when that member travels outside the county and incurs expenses.

Requested by: The Honorable James H. Hodges, Member of House of Representatives

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April 14, 1993

Opinion asking whether an employer is required to give a reservist time for weekend drill when that employee is scheduled to work on that weekend.

Requested by: The Honorable James Lee Foster, Sheriff, Newberry County

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April 12, 1993

Opinion concerning whether a dual office holding situation exists if persons serving on various professional licensing boards simultaneously serve in other capacities.

Requested by: George L. Schroeder, Director, Legislative Audit Council

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April 12, 1993

Opinion inquiring if a person who has been arrested but not yet tried and convicted and is awaiting trial in a jail or local detention facility has the right to vote.

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

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April 7, 1993

Opinion asking whether the two members of the South Carolina State University board elected last year should be counted as odd-numbered at-large seats and for future reference assign them as seats number 7 and 9, with the third odd-numbered at-large seat being elected this year for a remaining three-year term.

Requested by: The Honorable Eugene C. Stoddard, Chairman, Committee to Screen Candidates for Boards of Trustees

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April 6, 1993

Opinion questioning whether a sentencing judge possesses discretionary authority to suspend any or all of the monetary fine provided by S.C. Code Ann. 56-5-2945.

Requested by: The Honorable David P. Schwacke, Solicitor, Ninth Judicial Court

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April 5, 1993

Opinion asking whether a particular individual might be considered for appointment to the Berkeley County Voter Registration and Election Commission.

Requested by: The Honorable Sandra S. Wofford, Member, House of Representatives

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April 1, 1993

Opinion asking how a vacancy of County Treasurer of Marlboro County should be filled. In this case, the previous holder passed away before commencing her term.

Requested by: The Honorable Douglas Jennings, Jr., Member of House of Representatives

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April 1, 1993

Opinion inquiring about the status of the James Island Public Service District since the incorporation of the new Town of James Island.

Requested by: The Honorable D. N. Holt Jr., Chairman, Charleston County Legislative Delegation; The Honorable Ronald C. Fulmer, Member, House of Representatives; The Honorable Robert A. Barber Jr., Member of House of Representatives

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March 24, 1993

Opinion stating that it is your understanding that the State Law Enforcement Division is taking the position that a process server determines the “whereabouts” of a person under S.C. Code Ann. Section 40-17-20(1)(a), a provision of this State’s Detective and Private Security Agency Act, and is therefore required to obtain a license as a private detective.

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

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March 22, 1993

Opinion asking whether coin-operated video poker machines that have a free play feature, where the store owner disburses money and a player receives money, is a lottery under the State Constitution.

Requested by: The Honorable James H. Hodges, Chairman, Judiciary Committee, House of Representatives

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March 19, 1993

Opinion questioning: is the exclusion of income provided for by S.C. Code Ann. Section 12-7-570 (1976), constitutional in light of Davis v. Michigan, supra?

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March 19, 1993

Opinion on taxation and revenue, compensation of National Guard Members and Reservists. Requested by Office of the Attorney General. Read full opinion.  

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March 18, 1993

Opinion asking whether a public agency might allow an examination of their telephone bills, but is concerned that release of the records would be an invasion of privacy.

Requested by: Candy Y. Waites, Member, House of Representatives

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March 15, 1993

Opinion concerning whether DHEC had the authority to violate the explicit language of Proviso 39.13 that the appropriated funds “shall be used for rape crisis centers around the state” and whether it would be an unlawful delegation of legislative power to allow DHEC, in the face of the language of the proviso, to reduce the funds appropriated under the proviso in excess of the 4% across-the-board reduction.

Requested by: The Honorable Candy Y. Waites, Member, House of Representatives

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March 12, 1993

Opinion concerning the legality of the South Carolina Retirement System adjusting the payments due to retirees who choose Option 4 of S.C. Code Ann. §9-1-1620 and retired before July 1, 1990.

Requested by: Donald E. Beers, Executive Director, South Carolina Association of School Administrators

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March 10, 1993

Opinion concerning whether a dual office holding situation exists if the Public Works Director for the City of Florence simultaneously serves on the South Carolina Wildlife and Marine Resources Commission.

Requested by: Jan Pate, Administrative Assistant to the City Manager, City of Florence

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March 9, 1993

Opinion asking as to the constitutionality of S.239, R-11, an act changing the composition of the Walterboro-Colleton County Airport Commission.

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

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March 8, 1993

Opinion questioning: does the apportionment of taxes allowed by Section 12-45-140 apply to roll back taxes resulting from the change in use of property from agricultural to nonagricultural?

Requested by: The Honorable Lois Sikes, Calhoun County Auditor

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March 5, 1993

Opinion questioning whether when applying for or renewing a notary commission, is it required that the applicant be registered in the county in which he is a resident.

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

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March 5, 1993

Opinion questioning the propriety of deducting the expenses for purchase of drugs and payments to confidential informants prior to the distribution of the funds seized in accordance with S.C. Code Ann. Section 44-53-530.

Requested by: The Honorable C Gordon McBride, Solicitor, Fourth Judicial Circuit

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March 3, 1993

Opinion concerning whether a dual office holding situation exists if the Clerk of Court of Clarendon County simultaneously serves as a member of the Forestry Commission Board in Clarendon County.

Requested by: The Honorable Doug H. McFaddin, Clerk of Court of Clarendon County

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March 2, 1993

Opinion concerning whether a school district may increase the size of its local advisory committee under the Comprehensive Health Education Act, S.C. Code Ann. § 59-32-5 et seq. (1990).

Requested by: The Honorable Michael L. Fair, Member, House of Representatives

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February 19, 1993

Opinion stating that a member of the City Council has resigned and concluding that S.C. Code §7-13-190 (1992 Supp) would control the filling of this vacancy and has referenced the municipal ordinances of Greenwood.

Requested by: William K. Charles, III, Esquire

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February 19, 1993

Opinion questioning: what is the administrative appeal procedure for a taxpayer who is denied an agricultural use classification, where the taxpayer purchased property from an owner receiving the agricultural use classification?

Requested by: James L. Brodie, Director, Property Division, South Carolina Tax Commission

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February 17, 1993

Opinion relating to recent actions by the State Department of Highways and Public Transportation involving convictions for careless driving.

Requested by: C. Jo Anne Wessinger, Esquire, Labor, Commerce, and Industry Committee, House of Representatives

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February 17, 1993

Opinion asking whether or not a member of the General Assembly is immune for speeding, pursuant to Article III, Section XIV of the South Carolina Constitution.

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

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February 16, 1993

Opinion asking for an interpretation of S.C. Ann. § 59-125-30 as it relates to a purported vacancy on the Board of Trustees of Winthrop University.

Requested by: The Honorable Eugene C. Stoddard, Member, House of Representatives

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February 11, 1993

Opinion concerning whether a magistrate has the authority to provide for home monitored detention as a condition of bail, and does a magistrate have the authority to provide for a portion of any sentence handed down in Magistrate’s Court to be served through monitored home detention?

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

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February 11, 1993

Opinion concerning “the legality of [The South Carolina Aeronautics Commission] continuing to perform information gathering inspections if a private for profit organization wins the contract.”

Requested by: Joseph J. Saleeby, Director, South Carolina Aeronautics Commission

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February 11, 1993

Opinion concerning whether S.C. Code Ann. Sec. 20-7-340 allows the Office of the Solicitor, the SC Department of Youth Services, or the Family Court to release identifying information on a juvenile to a victim of an offense involving personal injury or property damage by that juvenile for purposes of a civil action; and if so, must that disclosure be made only after the juvenile has been adjudicated delinquent for the offense charged?

Requested by: Frampton Durban, Jr., Esquire, Managing Assistant Solicitor, Ninth Judicial Circuit, Family Court Division

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February 8, 1993

Opinion concerning whether a dual office holding situation exists if the Director of Business Management with the North Charleston Sewer District simultaneously serves on the Town Council of the newly-incorporated Town of James Island.

Requested by: Jimmy L. Green, Director of Business Management, North Charleston Sewer District

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February 5, 1993

Opinion asking whether a constitutional amendment would be required to permit the General Assembly to adopt legislation allowing school districts to incur bonded indebtedness, without a referendum, in excess of eight percent of the assessed value of taxable property within the school district.

Requested by: The Honorable J. Roland Smith, Member, House of Representatives

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January 26, 1993

Opinion requesting clarification regarding a prior opinion of this Office date January 29, 1992 which commented in part on a jail’s obligation to accept a prisoner for detention where the prisoner is injured.

Requested by: Larry W. Powers, Director, Spartanburg County Detention Facility

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January 25, 1993

Opinion questioning whether in determining tax benefit eligibility are calculations authorized which allow some deviation from R-30, R-11 and R-19, so long as the calculations yield the same level of energy efficiency as that which would be achieved from insulation levels of R-30, R-11 and R-19.

Requested by: The Honorable Robert A. Barber, Jr., Member, House of Representatives

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January 22, 1993

Opinion concerning whether a dual office holding situation exists if a member of the Midlands Technical College Board simultaneously serves as county treasurer.

Requested by: The Honorable John R. Russell, Senator, District No. 12

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January 12, 1993

Opinion advising that the Cherokee County Administrator is proposing to move the Probate Court from its present location in the county courthouse into a remodeled hospital and interpreting S.C. Code Ann. § 4-1-80(1976, as revised).

Requested by: The Honorable W. R. Douglas, Probate Judge of Cherokee County

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Columbia, SC

Rembert Dennis Building | 1000 Assembly Street,

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Phone: 1-803-734-3970 | Fax: (803) 253-6283

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