1997 Opinions

December 31, 1997

Opinion clarifying S.C. Code Ann. Sec. [40-2-50(C)] of the Accountancy statute.

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

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December 29, 1997

Opinion referencing Whitner v. State of South Carolina, Op. No. 24468 (October 1997) and addressing how that case relates to the mother’s non-criminal conduct.

Requested by: Janet T. Butcher, General Counsel, South Carolina Department of Social Services

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December 23, 1997

Opinion informing that the Beaufort County Council is in the process of enacting important land management planning.

Requested by: The Honorable Edith M. Rodgers, Member, House of Representatives

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December 19, 1997

Opinion informing that a private developer owns approximately 350 acres of land located outside the City of Greenville city limits.

Requested by: The Honorable Mike L. Fair, Senator, District No. 6

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December 19, 1997

Opinion attempting to notify all companies engaged in making real estate loans in this State of the continued validity of South Carolina Supreme Court decision in State v. Buyers Service Co., Inc., 292 S.C. 426, 357 S.E.2d 15 (1987).

Requested by: First Savers Bank

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December 17, 1997

Opinion advising as to whether the Clerks of Court are responsible for the collection and distribution of restitution ordered by a Court.

Requested by: The Honorable Charles R. Sharpe, Member, House of Representatives

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December 17, 1997

Opinion noting that the Strom Thurmond Monument Commission, which was created by the South Carolina General Assembly to establish a monument on the State House grounds to recognize the service of Senator Strom Thurmond, is raising funds entirely from private sources to pay for the monument.

Requested by: The Honorable John Courson, Chairman, Strom Thurmond Monument Commission

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December 10, 1997

Opinion asking: Can the Union County Council remove a member of the Board of Directors of the Union County Fair Association prior to the expiration of the term of such director?

Requested by: Robert E. Guess, Esquire

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December 5, 1997

Opinion stating that you work at night as a summary court judge at the Greenville County Detention Center “and issue warrants, hold Bond Hearings and issue commitments for the county and three municipalities.”

Requested by: The Honorable Harry H. Nelson, Summary Court Judge, Greenville County

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December 5, 1997

Opinion asking whether the dual office holding prohibitions of the State Constitution would be violated if an individual were to simultaneously serve as a duly elected Commissioner of the South Carolina Department of Transportation and as a member of the State Transportation Infrastructure Bank Board.

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

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December 4, 1997

Opinion asking whether it would be “permissible for the SCLEOA to conduct a raffle as a means of raising funds for our Association and under what guidelines must the raffle be conducted?”

Requested by: Marion H. Baker, Jr., President, South Carolina Law Enforcement Officers’ Association

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December 3, 1997

Opinion requesting as to “whether South Carolina residents acting as intermediaries (brokers) in corporate acquisition transactions, where real estate is incidental to the transaction, must be a South Carolina licensed real estate broker in order to earn a fee.”

Requested by: The Honorable Victoria T. Mullen, Member, House of Representatives

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December 1, 1997

Opinion advising that on November 5, 1997, the Town of Blackville received a request from a Barnwell newspaper requesting a copy of all telephone bills including cellular telephone bills from all Blackville Town Departments.

Requested by: Harold D. Sims, Chief of Police, Blackville Police Department

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November 26, 1997

Opinion asking two questions arising out of the November 20, 1997 opinion of this Office which discussed the qualifications of a member of the Ridgeville Town Council.

Requested by: The Honorable Allen Bozardt, Mayor, Town of Ridgeville

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November 25, 1997

Opinion stating that the North Carolina Department of Commerce has contacted the South Carolina State Ports Authority asking permission from the Authority to apply for Foreign-Trade Zone Status for the North Carolina/South Carolina border.

Requested by: Michael D. McGinnis, Jr., Business Development Project Coordinator, South Carolina State Ports Authority

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November 24, 1997

Opinion questioning whether the City of Rock Hill may provide The Saint Anne Church with $65,000, and in return receive ownership of the sewer line.

Requested by: Emil W. Wald, Esquire

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November 24, 1997

Opinion advising as to whether a student is entitled to free college tuition as the son of a disabled veteran who has moved to North Carolina.

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

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November 24, 1997

Opinion asking whether serving as a member of the Francis Marion University Board of Trustees while simultaneously serving as President and Chief Executive Officer of Santee Cooper would violate the dual office holding prohibitions of the South Carolina Constitution.

Requested by: T. Graham Edwards, President and Chief Executive Officer, Santee Cooper

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November 24, 1997

Opinion reviewing an Informal Opinion dated October 10, 1997 in light of a recent amendment to 42 U.S.C. §666(a)(13) this year.

Requested by: Janet T. Butcher, General Counsel, South Carolina Department of Social Services

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November 20, 1997

Opinion seeking as to whether “quail are deemed poultry under the definitions provided in South Carolina’s Code for the purpose of requiring South Carolina to inspect these fowl.”

Requested by: The Honorable Phil P. Leventis, Senator, District No. 35

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November 20, 1997

Opinion concerning three situations which arise out of the fact that one of the members of the Ridgeville Town Council is not a resident of the town.

Requested by: The Honorable Allen Bozardt, Mayor, Town of Ridgeville

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November 17, 1997

Opinion stating that “[a] positive alternative for persons to not drink and drive is to lease a limousine or bus for partying, but recently the point was raised that this may [violate] the ‘open container’ law (Sec. 61-4-110).

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

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November 17, 1997

Opinion clarifying two issues which have come to your attention following the South Carolina Supreme Court’s recent decision Weaver, et al. v. Recreation District, et al., (S.C. Sup. Ct. filed October 13, 1997)(Davis Adv. Sh. No. 29 at 8).

Requested by: The Honorable Mickey Whatley, Member, House of Representatives

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November 13, 1997

Opinion concerning the new cabinet form of government in place in Greenville.

Requested by: The Honorable Mike L. Fair, Senator, District No. 6

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November 12, 1997

Opinion regarding the proper location to hold a Magistrate’s Court trial in a criminal case or traffic offense.

Requested by: The Honorable George H. Bailey, Member, House of Representatives

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November 10, 1997

Opinion involving the Saluda County Council’s funding of the Saluda County Fire Board.

Requested by: Donald Black, Chairman, Saluda County Fire Board

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November 7, 1997

Opinion questioning the use of pre-set bond amounts for so-called “non-victim” offenses such as those involving intoxication and the like.

Requested by: Russell B. Long, Esquire

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November 6, 1997

Opinion concerning the posting of warning signs and notices as provided by the Equine Liability Immunity Act.

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

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November 6, 1997

Opinion referencing S.C. Code Ann. Sec. 23-3-460 which is a part of the Sex Offender Registration statute.

Requested by: Detective Matt Adair, Beaufort County Sheriff’s Office

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November 4, 1997

Opinion regarding criminal domestic violence in South Carolina.

Requested by: Jeffrey B. Moore, Executive Director, South Carolina Sheriffs’ Association

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November 4, 1997

Opinion concerning the applicability of S.C. Code Ann. Sec. 44-7-110.

Requested by: Kathy Ward Cuttino, Esquire

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October 29, 1997

Opinion “concerning a Game Room, containing Pool Tables, being open on Sundays.”

Requested by: Q.B. Walters, Chief of Police, Town of Branchville

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October 28, 1997

Opinion regarding Section 4-9-195 of the South Carolina Code of Laws.

Requested by: Richard T. Runnels, Deputy Director, South Carolina Department of Archives and History

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October 28, 1997

Opinion referencing House Bill 3820, the proposed Psychology Practice Act. Therein, Section 40-55-90 is amended “to address exemptions from the psychology practice act.”

Requested by: Charles F. Reid, Chief of Staff and Counsel to Speaker, Office of the Speaker, South Carolina House of Representatives

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October 27, 1997

Opinion advising that a member of the Carlisle Town Council has pled guilty to the crime of disorderly conduct and asking whether this member of council has forfeited his office or if he may be removed from office.

Requested by: The Honorable Ann Stevens, Mayor, Town of Carlisle

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October 24, 1997

Opinion concerning the manner in which a city council may appropriate money from the city’s fund balance and a second question based on Section 2-77 of the York City Code.

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

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October 22, 1997

Opinion asking whether Whitner v. State, Op, No. 24468 (July 15, 1996) “is binding on State agencies or the family courts at this time?”

Requested by: Janet T. Butcher, General Counsel, South Carolina Department of Social Services

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October 21, 1997

Opinion referencing a proposed parking ordinance for the Town of Saluda and requesting on its validity.

Requested by: The Honorable Morris L. Davenport, Mayor, Town of Saluda

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October 20, 1997

Opinion concerning the following situation: a Municipal Judge of the Town of Kiawah Island directed a Memorandum and Order to all security organizations and code enforcement officers on Kiawah Island concerning the law enforcement authority of the Charleston County Sheriff on Kiawah Island.

Requested by: G. Trenholm Walker, Esquire

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October 20, 1997

Opinion asking whether “the current statute[s] allow the Board of Cosmetology to require an independent contractor’s license of a registered cosmetologist leasing a booth in a licensed sale.

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

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October 15, 1997

Opinion requesting advice as to whether the consent provisions of § 59-19-250 (1976) apply to Lexington County School District Four when the Lexington County Board of Education has been abolished and its powers devolved upon the school districts board of trustees of that County pursuant to Act No. 601, 1994 S.C. Acts 6068.

Requested by: The Honorable Joe Wilson, Senator, Lexington County

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October 10, 1997

Opinion questioning whether under the South Carolina Consumer Protection Code, a finance company is required to send the consumer another notice of the right to cure when the consumer is late in making the subsequent payment.

Requested by: The Honorable W. Jeffrey Young, Member, House of Representatives

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October 8, 1997

Opinion asking whether the District may increase or expand the compensation package for members of its governing body.

Requested by: Scott Elliott, Esquire

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October 6, 1997

Opinion asking: “Is the landowner initiative as set out in 6-11-20 a prerequisite to action by a county governing body under 4-11-10 et seq in the formation of a fire protection district?”

Requested by: Dan Richardson

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October 6, 1997

Opinion requesting advice as to whether the Clerk of Court may retain personally County deed stamp taxes under the circumstances described.

Requested by: Kenneth G. Goode, Esquire

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September 30, 1997

Opinion asking for advice as to whether S.C. Code Ann. § 59-139-10 (Supp. 1996) or Reg. 43-261 (Vol 24 of the Code (Supp. 1996)) requires a school district to use a “strategic planning process” to develop annual updates to the District’s comprehensive, long-range plan.

Requested by: David C. Eckstrom, Esquire

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September 29, 1997

Opinion asking whether the 1988 Opinion of this Office correctly addresses the State’s treatment of tandem axle limits as separate and distinct from gross weight limits and, therefore, whether the State presently complies with federal law regarding tandem axle limits under the grandfathering provisions in the federal law?

Requested by: William E. Gunn, Interim Director, SC Department of Public Safety

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September 24, 1997

Opinion asking whether a “Family Court Judge can, in fact, require a juvenile to obtain a haircut as part of his/her sentence.”

Requested by: Officer Patrick Long, D.A.R.E. Instructor, Greenwood Police Department

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September 23, 1997

Opinion regarding the Mayor, Town Council, and Town Attorney of the Town of Santee.

Requested by: Robert L. Williams, Police Chief, Town of Santee.

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September 23, 1997

Opinion regarding Proviso 19.11 of the Appropriations Act.

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

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September 22, 1997

Opinion concerning “why Reserve Officers who have completed at least 240 hours of in service training cannot be certified to operate Radar.”
Requested by: Michael G. Wilkie, Chief of Police. Springdale Police Department

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September 22, 1997

Opinion requesting advice as to payment of salaries or per diem for members of the Orangeburg County consolidated school board and the County Board of Education established by Act No. 526, 1996 S.C. Acts.

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

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September 22, 1997

Opinion concerning: seizure of money at cockfighting, gambling money seized and voluntarily forfeited, and distribution of drugs with proximity of schools, etc.

Requested by: Captain Rick Burgess, Cherokee Metro Narcotic Unit, Cherokee County Sheriff’s Office

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September 19, 1997

Opinion questioning: was the power of the Greenwood County Board of Education to approve the issuance of school bonds under Section 59-71-30 of the South Carolina Code of Laws developed upon the Greenwood County Council upon the dissolution of the Greenwood County Board of Education and what, if any, powers and duties of the Greenwood County Board of Education, other than those powers and duties necessary to the winding up of the Board of Education’s operations and affairs, were devolved upon Greenwood County Council?

Requested by: W. Lee Roper, II, Esquire

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September 18, 1997

Opinion concerning the legality of using the words ‘psychology’ or ‘psychological’ in the professional title of ‘Licensed Specialist in School Psychology’.

Requested by: Charles F. Reid, Chief of Staff and Counsel to Speaker, Office of the Speaker, South Carolina House of Representatives

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September 18, 1997

Opinion concerning whether a dual office holding situation exists if an the mayor simultaneously serves as a magistrate.

Requested by: The Honorable William H. O’Dell, Senator, District No. 4

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September 16, 1997

Opinion asking for a follow-up to a letter written on September 12, 1997 concerning whether a so-called “check collection agency” may seek a criminal warrant for a “bad check” violation.

Requested by: The Honorable Thomas Ed Taylor, Summary Court Judge, Greenville County

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September 12, 1997

Opinion regarding 34-11-60(d).

Requested by: The Honorable Thomas Ed Taylor, Summary Court Judge, Greenville County

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September 11, 1997

Opinion advising as to whether the Georgetown County Council has the authority to direct the manner in which the Clerk of Court accepts payment of child support.

Requested by: Jack M. Scoville, Jr., Esquire

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September 11, 1997

Opinion asking whether a 1955 sub-division covenant is controlling over a 1997 city zoning ordinance.

Requested by: The Honorable Thomas M. Dantzler, Member, House of Representatives

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September 9, 1997

Opinion reviewing the situation involving so-called “lost and found” property turned in to your Department by persons who have come upon the property.

Requested by: Douglas Graffagnino, Chief of Police, Seneca Police Department

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September 4, 1997

Opinion referencing a situation where a portion of a State road has apparently been abandoned by the State due to a rerouting or an alteration in the roadbed.

Requested by: The Honorable James E. Bryan, Jr., Senator, District No. 9

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September 2, 1997

Opinion questioning whether Section 20-1-100 now restricts the effect of Section 20-1-300 despite the latter’s language which permits a marriage license to issue “[w]ithout regard to the age of the female and male?”

Requested by: The Honorable Catherine H. Kennedy, Probate Judge, Richland County

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August 29, 1997

Opinion regarding the Board of Trustees of the School Districts of Anderson County.

Requested by: The Honorable Daniel T. Cooper, Member, House of Representatives

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August 27, 1997

Opinion asking whether “section 8-15-65 of the Code, require[s] a ‘corresponding reduction’ in the county’s appropriations by the state, pursuant to Chapter 27 of Title 6, State Aid to Subdivisions, if a reduction is made in the operational budgets of the specified elected officials by a county council.”

Requested by: Jeffrey B. Moore, Executive Director, South Carolina Sheriffs’ Association

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August 26, 1997

Opinion referencing Section 9.4 of Part I B of the 1996-97 Appropriations Act regarding payroll deductions and their processing.

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

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August 25, 1997

Opinion referencing Act No. 129 of 1997 (H.3317).

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

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August 25, 1997

Opinion concerning the retention of emotionally disturbed children’s medical records.

Requested by: Timothy D. Harbeson, Division Director, Continuum of Care for Emotionally Disturbed Children

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August 21, 1997

Opinion asking this Office to examine a copy of Straight Talk, A Magazine for Teens to determine if it is in compliance with S.C. Code Ann. Sec. 59-32-5 et seq., the Comprehensive Health Education Act.

Requested by: The Honorable William E. “Bill” Sandifer, Member, House of Representatives

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August 20, 1997

Opinion requesting as to whether under the circumstances described in your letter, a violation of the Freedom of Information Act, or any other provision of law, may have occurred.

Requested by: The Honorable Harry C. Stille, Member, House of Representatives

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August 19, 1997

Opinion concerning the number of members present in the Georgetown County Water and Sewer District.

Requested by: The Honorable Vida O. Miller, Member, House of Representatives

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August 19, 1997

Opinion asking as to the constitutionality of S.448 and in regard to the constitutionality of legislation introduced by Senator Smith and Representative Thomas which passed the authority to appoint members of several boards in Georgetown County from county legislative delegation to the county council.

Requested by: The Honorable Vida O. Miller, Member, House of Representatives

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August 19, 1997

Opinion concerning the constitutionality of S.448.

Requested by: William W. Doar, Jr., Esquire

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August 18, 1997

Opinion seeking as to whether the Legislative Audit Counsel possess the authority to conduct an audit of the GLEAMNS Human Resources agency.

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

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August 15, 1997

Opinion asking whether the Union County School Board has the power to increase their per diem pay or if that power rests with the Union County Legislative Delegation.

Requested by: The Honorable Ronald N. Fleming, Member, House of Representatives

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August 13, 1997

Opinion asking whether employees of the Pickens County Board of Disabilities and Special Needs are subject to the National Labor Relations Act.

Requested by: The Honorable Larry A. Martin, Senator, District No. 2

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August 12, 1997

Opinion referencing the fact that a particular magistrate was unsuccessful in passing the certification examination on two occasions; he was unable to take it the third time due to illness and resigned as magistrate.

Requested by: The Honorable William H. O’Dell, Member, South Carolina Senate

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August 7, 1997

Opinion regarding the scope of S.C. Code Ann. Sec. 16-3-1040.

Requested by: The Honorable Ralph J. Wilson, Solicitor, Fifteenth Judicial Circuit

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August 5, 1997

Opinion concerning the potential prosecution of a magistrate court case by a private attorney.

Requested by: The Honorable Thomas E. Pope, Solicitor, Sixteenth Judicial Circuit

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August 5, 1997

Opinion advising as to whether the Spartanburg County School Districts have been devolved the power to levy taxes to pay for multi-district agreements.

Requested by: J. Mark Hayes, Esquire

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August 4, 1997

Opinion regarding the proper interpretation of S.C. Code Ann. Section 23-3-490.

Requested by: The Honorable Tommy R. Mims, Sheriff, Sumter County

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August 1, 1997

Opinion referencing a “proposed office share management involving a Berkeley County Magistrate’s Office.”

Requested by: The Honorable Ellen L. Karesh, Berkeley County Magistrate

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July 28, 1997

Opinion looking into the question of what duties and responsibilities does the Sheriff have with respect to the security of the courthouse and the courtroom.

Requested by: The Honorable Johnny Mack Brown, Sheriff, Greenville County

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July 23, 1997

Opinion regarding the Comprehensive Health Act (Act) (S.C. Code Ann. §59-32-5, et seq. (1990)).

Requested by: G. Steven Suits, MD, Member, Health and Safety Curriculum Review Panel

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July 23, 1997

Opinion regarding “any applicable law… [with respect] to picketing or protesting at the entrance or around a State supported college.”

Requested by: James T. Bagnall, Chief, Department of Public Safety, Denmark Technical College

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July 22, 1997

Opinion regarding the legality of the operation of this multi-county industrial park in light of Section 4-1-172 of the South Carolina Code of Laws.

Requested by: Hardwick Stuart, Jr., Esquire

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July 18, 1997

Opinion noting that “[d]ue to the amount of property acquired by the police department, any law requiring the department to hold the property for a period of five years will require us to provide additional storage space to store these items.” And, questioning the issue of the seizure of a suspended drivers license or vehicle license plate by a municipal police officer.

Requested by: Douglas Graffagnino, Chief of Police, Seneca Police Department

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July 17, 1997

Opinion concerning whether the power to appoint members of the Newberry County Community Hall Commission (hereinafter “Commission’) rests with the Newberry County Council or the remaining members of the Commission.

Requested by: The Honorable Walton J. McLeod, Member, House of Representatives

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July 16, 1997

Opinion on legality of Union County to expend public funds to do repair work up real property in a cemetery. Requested by Robert E. Guess, Esquire, Attorney for Union County. Read full opinion.

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July 15, 1997

Opinion concerning the “practical implementation” of S.616, R.201 (Act No. not yet assigned).

Requested by: The Honorable Phil P. Leventis, Senator, District No. 35

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July 11, 1997

Opinion concerning “whether magistrates may set bond on an individual who is charged with a violation of Section 16-11-311, Burglary- First Degree.”

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

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July 11, 1997

Opinion asking whether a municipal police officer is required to execute an arrest warrant issued by a magistrate and presented to him for service.

Requested by: The Honorable John Milton Knotts, Jr., Member, House of Representatives

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July 10, 1997

Opinion determining “the legality of using confiscated drug monies to purchase a computerized, video imaging system used in developing lineups used for identification purposes involving this type of criminal activity.”

Requested by: William M. Roth, Chief of Police, Lexington Police Department

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July 10, 1997

Opinion inquiring whether a dual office holdin situation exists if a county magistrate simultaneously serves as a municipal codes enforcement officer.

Requested by: Cecil Kimrey, Town Administrator, Town of Pageland

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July 9, 1997

Opinion requesting on whether it is proper for members of the Georgetown County Planning Commission (hereinafter the “Planning Commission”) to make ex parte communications with interested parties in matters pending before the Commission.

Requested by: Jack M. Scoville, Jr., Esquire

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July 9, 1997

Opinion noting that S.C. Code Ann. Sec. 15-78-140 states that political subdivisions purchasing tort liability through the Insurance Reserve Fund must purchase all its coverage through the fund.

Requested by: Albert C. Byrd, CPCU, Manager, Property/Casualty Department, State Budget and Control Board

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July 8, 1997

Opinion regarding the proper interpretation of S.C. Code Ann. Sec. 17-15-260.

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

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July 1, 1997

Opinion regarding whether the Charleston County Parks and Recreation Commission is authorized by its enabling legislation to enter into lease agreements.

Requested by: The Honorable Lynn Seithel, Member, House of Representatives

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June 27, 1997

Opinion concerning whether a dual office holding situation would exist if an Assistant United States Attorney simultaneously serves as a member of city or county council or member of the General Assembly and whether a dual office holding situation exists if a city prosecutor simultaneously serves as a member of city or county council or member of the General Assembly.

Requested by: Thomas O. Sanders, IV, Esquire

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June 27, 1997

Opinion regarding the status and constitutionality of Section 3 of Act No. 748 of 1978 and, more particularly, whether the provision that “the superintendent shall be appointed for a term of three years” can be interpreted to apply only to the initial appointment of a superintendent, or is it to be interpreted as requiring the Board to appoint the superintendent for a three year term not only initially but always and only for a three year term.

Requested by: The Honorable Warren J. Jeffords, Chairman, Darlington County Board of Education

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June 27, 1997

Opinion noting that “[a]nnually, Lexington County Health Services District, Inc. has an external C.P.A. firm perform a financial audit as well as a management letter which are presented to the Board for the Health District.” The opinion discusses the circumstances under which the audit report and/or management letter could be discussed in executive session.

Requested by: James Randall Davis, Esquire

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June 26, 1997

Opinion seeking clarification on a situation concerning SCE&G (which operates the bus system) and the Concealed Weapons Law. There are concerns that persons may attempt to carry concealed weapons onto the buses, and the company would like to place notices forbidding this.

Requested by: The Honorable Richard M. Quinn, Jr., Member, House of Representatives

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June 26, 1997

Opinion concerning the constitutionality of Section 65 of Part II of the 1997 Appropriations Bill.

Requested by: James M. Holly, Chief of Staff, Office of the State Treasurer

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June 24, 1997

Opinion asking if it is constitutional for a county to set its council members’ salaries as a percentage of a State Legislator’s salary. And if the practice is constitutional, what components of the Legislator’s compensation should be considered salary for use in computing the council member’s salary?

Requested by: The Honorable T. Scott Beck, Member, House of Representatives

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June 23, 1997

Opinion regarding the Freedom of Information Act.

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

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June 23, 1997

Opinion advising that the insurance carrier for the Mullins Police Department has indicated that it is reluctant to insure officers who transport juveniles not charged with an offense by your Department.

Requested by: L.B. Floyd, Assistant Chief, Mullins Police Department

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June 20, 1997

Opinion asking what legal rights the county has to dirt roads which have not been acquired by the county by easement or dedication.

Requested by: Timothy H. Pogue, Esquire

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June 19, 1997

Opinion asking whether a dual office holding situation exists if a member of the Sumter County Transportation Committee simultaneously serve on the Mid-Carolina Commission for Higher Education.

Requested by: C. Leslie Carpenter, Dean of the University, University of South Carolina-Sumter

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June 19, 1997

Opinion regarding the Darlington County Ordinance Summons.

Requested by: Thomas E. Atkins, Deputy County Administrator, Darlington County

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June 18, 1997

Opinion concerning the Law Abiding Citizens Self-Defense Act of 1996.

Requested by: Captain Mark A. Keel, South Carolina Law Enforcement Division

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June 18, 1997

Opinion asking: Can [the Darlington Police Department] legally take a gun from a subject with or without an arrest being made even though he is not on his own property?

Requested by Sergeant S.E. Buffkin, Darlington Police Department

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June 16, 1997

Opinion informing that in March of 1997, Dr. Julian Kelly, then mayor of Pawley’s Island, was indicted for improper use of the telephone and asking as to the legality of two issues involving Dr. Kelly.

Requested by: E.C. McGregor Boyle, Mayor Pro Tempore, Town of Pawley’s Island

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June 12, 1997

Opinion asking whether membership on the Marlboro County Economic Development Partnership would be considered an office for dual office holding purposes.

Requested by: The Honorable George C. McIntyre, Chairman, Marlboro County Council

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June 12, 1997

Opinion regarding the Freedom of Information Act.

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

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June 12, 1997

Opinion concerning the use of aerial traffic observers by the Charleston Police Department’s Aviation Unit.

Requested by: Ira A. Grossman, Assistant City Prosecutor, City of Charleston

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June 12, 1997

Opinion advising that one of the Coastal Carolina University’s board members is not seeking re-election and asking whether this member may remain in the seat until the General Assembly chooses his successor, which would presumably be during the 1998 Legislative Session.

Requested by: Edgar Dyer, University Counsel, Coastal Carolina University

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June 11, 1997

Opinion regarding the constitutionality of certain statutory provisions and noting that S.C. Code Ann. Sec. 12-27-390 deals with the water recreational resources fund.

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

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June 10, 1997

Opinion concerning “the legal use of video tapes, with audio, in the surveillance of high school students during the school day on the campus of a public school.”

Requested by: Lieutenant James E. Palmer, School Resource Officer, Union Public Safety Department

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June 4, 1997

Opinion asking as to a charter school’s eligibility to purchase insurance coverage through the Insurance Reserve Fund.

Requested by: Albert C. Byrd, CPCU, Manager, Property-Casualty Department. South Carolina Insurance Reserve Fund

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June 4, 1997

Opinion regarding an effort to relieve Goose Creek police officers from their duties in the courtroom so that they may return to their duty stations in a more timely manner.

Requested by: Harvey Becker, Chief of Police, City of Goose Creek Police Department

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June 2, 1997

Opinion concerning whether a public hearing upon fifteen days’ notice must be held before a proposed zoning amendment is introduced to county council.

Requested by: Amelia R. Linder, Legal Counsel and Director, Berkeley County Planning and Codes Enforcement

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June 2, 1997

Opinion asking whether a citizen must be notified before a County Council initiates a zoning reclassification.

Requested by: Amelia R. Linder, Legal Counsel and Director, Berkeley County Planning and Codes Enforcement

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June 2, 1997

Opinion requesting advice as to whether, as Clerk, you are entitled to the salary for the office of Probate Judge while serving in that position as a result of a vacancy.

Requested by: The Honorable Douglas C. Murdaugh, Clerk of Court

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May 30, 1997

Opinion asking whether a dual office holding situation exists if the solicitor simultaneously serves as the part-time municipal court judge for Mount Pleasant.

Requested by: R. Allen Young, Esquire

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May 29, 1997

Opinion “seeking both clarification and guidance incident to the Lighthouse Charter School’s diligent efforts to achieve both the racial composition for the student body and to conduct a lottery as required by statute.”

Requested by: James P. Scheider, Jr., Esquire

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May 29, 1997

Opinion stating: [m]y initial concern would be the fact that a violent crime may not traverse jurisdictional limits and therefore, may not come within the scope of Section 23-1-215.

Requested by: Thomas M. Boulware, Esquire

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May 29, 1997

Opinion requesting as to the constitutionality of a city’s assessment of court costs for jury trials.

Requested by: The Honorable Thomas H. Alexander, Mayor, City of Bishopville

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May 27, 1997

Opinion asking as to the constitutionality of S.392.

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

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May 23, 1997

Opinion “concerning whether or not local law enforcement has the authority to enforce state poker machine regulations in their areas of jurisdiction pursuant to § 12-21-2720 (a) (3)…”.

Requested by: William R. Neill, Chief of Police, Beaufort Police Department

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May 23, 1997

Opinion regarding raffles and “casino nights.”

Requested by: The Honorable Scott Beck, Member, House of Representatives

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May 21, 1997

Opinion “concerning the issuance of a Uniform Traffic Ticket for a freshly committed Shoplifting incident, that can be tried in a Municipal or Magistrate Court.”

Requested by: The Honorable B. Lee Miller, Municipal Judge, City of Greenwood

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May 15, 1997

Opinion regarding the election of members to the Commission of the Department of Transportation.

Requested by: The Honorable John David Hawkins, Member, House of Representatives

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May 13, 1997

Opinion regarding whether or not an executive order issued by the Governor of South Carolina expires with the term of the Governor who signed the order.

Requested by: Jane McCue Johnson, Legal Counsel, Legislative Audit Counsel

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May 13, 1997

Opinion noting that this Office concluded that a school district is without authority to pay a school board member’s or an employee’s expenses of representation in a criminal proceeding and inquiring as to “[w]hat legal remedies would be available when public funds continue to be expended for this unlawful purpose?”

Requested by: The Honorable Tracy R. Edge, Member, House of Representatives

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May 13, 1997

Opinion regarding the Spartanburg County Transportation Committee and the county’s expenditure of the gasoline tax found under Section 12-28-2740 of the Code.

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

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May 9, 1997

Opinion asking whether S.C. Code Ann. Section 57-1-320 (B) requires that a district commissioner of the South Carolina Department of Transportation is prohibited from serving more than one term unless another commissioner’s term intervenes.

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

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May 8, 1997

Opinion inquiring whether a dual office holding situation exists if a member of Florence City Council simultaneously serves as a member of the Micro-Loan Program Advisory Committee.

Requested by: James W. Peterson, Jr., Esquire

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May 6, 1997

Opinion regarding whether the actual name of the Comptroller General must appear upon state checks or whether the title of the Office: “Comptroller General” is sufficient.

Requested by: The Honorable Earle E. Morris, Jr., Comptroller General

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May 5, 1997

Opinion asking whether a bill which devolves the authority for appointments and budgetary approvals for certain offices, boards, and commissions from the joint legislative delegation representing Beaufort County to the governing body of Beaufort County (hereinafter “the Bill”) is constitutional.

Requested by: The Honorable Edith Martin Rodgers, Member, House of Representatives

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May 1, 1997

Opinion asking whether the program manager for the mobile home registration program of Aiken County would be considered a public officer.

Requested by: William M. Shepherd, County Administrator, Aiken County

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April 24, 1997

Opinion concerning the following question: [m]ay a Code Enforcement Officer, appointed by County Council, be issued and carry a weapon or pistol during the performance of his duties of office? If so, under what circumstances may he do so?

Requested by: Robert M. Bell, Esquire

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April 23, 1997

Opinion regarding trespassing on private property after a warning is issued by the owner of said property.

Requested by: The Honorable B. Lee Miller, Judge, Municipal Court, City of Greenwood

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April 21, 1997

Opinion informing that the Isle of Palms City Council (hereinafter “City Council”) is considering passage of an emergency powers ordinance that would delegate certain specified powers and functions to the City Administrator, or other designee of the City Council.

Requested by: The Honorable Carmen R. Bunch, Mayor, City of Isle of Palms

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April 16, 1997

Opinion asking whether the offenses of speeding and DUI (1st offense) constitute double jeopardy.

Requested by: Michael G. Wilkie, Chief of Police, Springdale Police Department

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April 16, 1997

Opinion asking whether so-called “scratch and win” cards, which are being distributed at convenience stores throughout South Carolina [are] a lottery and thus illegal under South Carolina law.

Requested by: The Honorable John Drummond, President Pro Tempore, The Senate of South Carolina

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April 9, 1997

Opinion inquiring as to whether an individual may serve simultaneously as mayor of the City of New Ellenton and as a Tax enforcement officer for Aiken County.

Requested by: The Honoarble Ronald G. Carmack, Member, New Ellenton Town Council

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April 7, 1997

Opinion seeking as to “the application of the Charter School Act of 1996 of South Carolina, which was passed by the South Carolina Legislature with the purpose of increasing choices for education of South Carolina families.

Requested by: The Honorable Edith M. Rodgers, Member, House of Representatives

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April 7, 1997

Opinion asking whether commissioners of the Combined Utility System of Easley, SC may change their compensation to salary and, if so, when such a change could be made.

Requested by: James M. Robinson, Esquire

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April 2, 1997

Opinion inquiring whether pursuant to §47-3-760 (C) of the Code of a municipal court has jurisdiction to order a dangerous animal destroyed if the owner has been found guilty in Municipal Court for violating §47-3-760 or “is §47-3-760 (C) considered more civil in nature thus vesting jurisdiction in the Magistrate Court only.”

Requested by: The Honorable Donna Owens, Municipal Judge, City of Florence

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April 2, 1997

Opinion questioning whether a special election may be held to fill the unexpired term of office for the Auditor.

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

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March 31, 1997

Opinion concerning the disposition of weapons and wishing to know whether the Sheriff’s Department, Clerk of Court and County Administrator can enter into an agreement whereby the Sheriff’s Department sells these weapons to a retail gun dealer with the proceeds being used to purchase equipment and supplies for the Sheriff’s Department.

Requested by: Captain Al Eargle, Richland County Sheriff’s Department

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March 31, 1997

Opinion asking for guidance in the areas of statutory provision respecting immunity from arrest.

Requested by: Captain R.D. Abney, Aiken Department of Public Safety

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March 27, 1997

Opinion stating that there are presently a number of state and federal laws requiring the use of quotas or “set-asides” with respect to highway and bridge construction as well as state procurement and inquiring whether these programs are constitutional.

Requested by: The Honorable Michael L. Fair, Senator, District No. 6.

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March 25, 1997

Opinion referencing a problem the Rock Hill Police Department is having “involving seatbelt citations and the imposed fines.”

Requested by: Lt. Frank J. Zebedis, Rock Hill Police Department

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March 25, 1997

Opinion requesting the advice as to the constitutionality of Senate Bill 402 (S402).

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

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March 25, 1997

Opinion concerning whether “there is a South Carolina Law as to how long we must maintain the files on death investigation in our office.”

Requested by: The Honorable Greg L. Shore, Coroner, Anderson County

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March 25, 1997

Opinion asking for an interpretation “as to which court has jurisdiction to enforce title 59 Section 65-20 of the 1976 Code of Laws of South Carolina, as amended.”

Requested by: The Honorable Lee S. Alford, Family Court Judge for the Sixteenth Judicial Circuit

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March 21, 1997

Opinion questioning the constitutionality of Senator Cork’s bill prohibiting persons who lose in a primary or run-off election from serving in an office as a result of write-in votes received in the general election.

Requested by: The Honorable Michael L. Fair, Senator, District No. 6

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March 19, 1997

Opinion concerning construction of toll roads by the South Carolina Department of Transportation in South Carolina.

Requested by: The Honorable Harvey S. Peeler, Jr., Member, South Carolina Senate

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March 17, 1997

Opinion inquiring whether for the purposes of computing military leave, does the term “day’ mean a 24 hour period or does it mean a common 8 hour workday.

Requested by: The Honorable C. Tyrone Courtney, Senator, District No. 13

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March 14, 1997

Opinion regarding debtor-creditor relations.

Requested by: The Honorable James E. Bryan, Jr., Senator, District No. 9

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March 13, 1997

Opinion regarding the constitutionality of Act number 515 of 1996. This Act transfers the power of appointment from the Georgetown County Legislative Delegation to the governing body of Georgetown County.

Requested by: The Honorable Yancey McGill, Member, South Carolina Senate

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March 12, 1997

Opinion regarding use of the Water Recreation Resources Fund.

Requested by: The Honorable Holly A. Cork, Member, South Carolina Senate

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March 10, 1997

Opinion asking as to whether the municipalities must return to the York County Council those “C” funds approved and disbursed by the York County Transportation Committee prior to its dissolution on January 1, 1997.

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

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March 7, 1997

Opinion requesting advice as to what power or authority the Piedmont Area Technical College Area Commission has to “…encourage the count[ies] within the [Commission’s service] district to pay its fair share.”

Requested by: E.W. Roberts, Chair, Piedmont Area Technical College Area Commission

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March 3, 1997

Opinion asking whether a member of the town council charged with a crime may be suspended from the council pending disposition in a court of law and whether a member of the town council may be removed from office if convicted of a crime.

Requested by: The Honorable Ann Stevens, Mayor, Town of Carlisle

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March 3, 1997

Opinion concerning Winthrop’s “practice of allowing Charlotte-area students to pay the lower in-state tuition rate.”

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

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February 21, 1997

Opinion requesting advice as to “the status and constitutionality” of Act 748 §3, 1978 S.C. Acts 2419.

Requested by: The Honorable Warren J. Jeffords, Chairman, Darlington County Board of Education

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February 14, 1997

Opinion asking whether the Beaufort County Legislative Delegation (BCLD) may terminate members of the Beaufort County Transportation Committee (BCTC) and appoint their replacements at any time and whether the BCLD may change the number of members sitting on the BCTC.

Requested by: W. Brantley Harvey, Chairman, Beaufort County Transportation Committee

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February 11, 1997

Opinion asking for guidance concerning a county’s “furnishing assistance to a city, if the city is short of personnel.”

Requested by: Captain James F. Mills, Operations Officer, Bishopville Police Department

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February 10, 1997

Opinion questioning whether directors of a non-profit corporation may vote by proxy.

Requested by: Mr. Hampton J. Walker

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February 10, 1997

Opinion asking for an outline and discussion of the standards which govern the placement of enclosures or fences upon state lands by state officials.

Requested by: Paul S. League, Assistant Chief Counsel, South Carolina Department of Natural Resources

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February 4, 1997

Opinion asking “whether the statute concerning custody of the jail being the responsibility of the board of commissioners in Sumter County is current and applicable.”

Requested by: Jerry A. Hyatt, Regional Administrator/Executive Director, Santee-Lynches Regional Jail System

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February 4, 1997

Opinion asking whether a petition signed by fifteen percent of the qualified electors of Horry County could call for a referendum to repeal Ordinance Number 105-96.

Requested by: The Honorable Dick Elliot, Senator, District No. 28

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February 3, 1997

Opinion involving the handcuffing of a person for temporary detention before establishing grounds for arrest.

Requested by: Sam S. Strickland, Patrol Officer, Horry County Police Department

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February 3, 1997

Opinion questioning if money from can be moved from the DSS fund to pay storage of vehicles that should not have been stored for a long period of time.

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

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February 3, 1997

Opinion stating that for the past 15 years, the Town of Santee has paid the Mayor and four Council members an annual Christmas gift of approximately $400.00 to $500.00.

Requested by: The Honorable Sheryl Patrick, Member of Santee Town Council

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January 30, 1997

Opinion noting that “our County Council is considering actions, along with our County Sheriff, Gene Taylor, to implement regulations to severely restrict nude bars and dancing in Anderson County.”

Requested by: The Honorable Robert L. Waldrep, Jr., Senator, District No. 3

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January 30, 1997

Opinion requesting an interpretation of S.C. Code Ann. § 2-1-120 in regard to a public school teacher’s ability to serve in the General Assembly.

Requested by: The Honorable Molly M. Spearman, Member, House of Representatives

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January 29, 1997

Opinion regarding the validity of video equipment in classrooms and wishing to know whether video cameras can be placed in the classroom for surveillance purposes.

Requested by: Boone Walters, Chief of Police, Town of Branchville

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January 29, 1997

Opinion inquiring whether an individual’s service on both a local constituent school board and the Charleston County Park and Recreation Commission would constitute dual office holding.

Requested by: The Honorable Glenn F. McConnell, Chairman, Joint Delegation, Charleston County Legislative Delegation

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January 29, 1997

Opinion on S.C. Code Ann. Section 17-5-310. Requested by The Honorable Sue R. Townsend, Coroner, Aiken County. Read full opinion.

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January 28, 1997

Opinion regarding Spartanburg County’s proposed charge to house prisoners in Spartanburg County Jail.

Requested by: Barry D. Mallek, Chief of Police, Town of Duncan

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January 27, 1997

Opinion informing that the city of Seneca no longer allows the Seneca Police Department to conduct its “ride-along” program and asking for a ruling on the “ride-along” program.

Requested by: Lt. Stephen F. Baxley

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January 23, 1997

Opinion informing that there are drink and other vending machines located within the Edgefield County Jail which are used by the prisoners and visitors to the County Jail. Coins removed from these machines have been placed in an account designated by the Sheriff, who is also the Chief Jail Keeper, as a recreation fund, and this opinion addresses whether this is an appropriate use of the fund.

Requested by: Thomas A. Mims, Esquire

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January 23, 1997

Opinion indicating that a local merchant had cashed a payroll check given an employee by a business that is out of state.

Requested by: Honorable William V. Hegler, Lancaster County Magistrate

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January 22, 1997

Opinion concerning what is meant by the phrases “discharge from custody” and “bound by the terms of his bond,” as stated in the Magistrates and Municipal Judges Bench Book.

Requested by: The Honorable Jack L. Guedalia, Charleston County Magistrate

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January 17, 1997

Opinion on whether a county council has authority to bind the incoming council on a long term contract for employment of county employee. Requested by The Honorable Randy Scott, Member-Elect, Dorchester County Council. Read full opinion.

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January 16, 1997

Opinion concerning the Department of Parks, Recreation and Tourism’s authority to create the South Carolina Heritage Corridor (the “Foundation”), a South Carolina eleemosynary corporation.

Requested by: Grace G. Young, Director, South Carolina Department of Parks, Recreation and Tourism

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January 16, 1997

Opinion reconsidering the legal conclusions reached in two previously issued opinions.

Requested by: James T. Clark, State Director, South Carolina Department of Social Services

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January 15, 1997

Opinion requesting as to S.C. Code Ann. § 59-121-30 (1990) which provides that no member of the Board of Visitors of the Citadel “…shall be elected or re-elected either by the General Assembly or by the Association of Citadel Men to fill any term of office the duration of which shall extend beyond the member’s seventy-fifth birthday.”

Requested by: The Honorable James M. Miles, Secretary of State, State of South Carolina

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January 14, 1997

Opinion asking what is the impact of the Supreme Court decision, Martin v. Condon, Op. No. 24518 (November 4, 1996), upon the authority of cities and counties to regulate video poker cash payouts.

Requested by: The Honorable Scott Beck, Member, House of Representatives

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January 10, 1997

Opinion stating that you are very concerned about partial birth abortions in light of “last year’s failure by the United States Congress to ban these types of late-term abortions.”

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

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January 8, 1997

Opinion asking whether the City of Newberry may contract with the Newberry Family YMCA to provide recreation programs for city residents.

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

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January 7, 1997

Opinion concerning whether a dual office holding situation exists if a member of the Barnwell County Hospital Board simultaneously serves on the Barnwell County Transportation Committee.

Requested by: Daniel W. Williams, Esquire

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January 3, 1997

Opinion noting that the Spartanburg Department of Public Safety has had a policy of suspending officers charged with domestic violence.”

Requested by: H. Spencer King, Esquire

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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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