In the private sector, corporate boards of directors often work using committees, each made of select members of the entire board. These subsidiary bodies may perform delegated functions, make recommendations to the board and streamline operations. City and town councilmembers often ask if committees or other subsidiary bodies of the council may accomplish similar roles in local government.
In general, councils may freely establish subsidiary bodies, but significant limitations apply to them. Creating committees can also lead to friction among councilmembers in the form of questions about how they should be structured and what authority they should have. Two principles of South Carolina law — only the council may exercise the legislative function, and governments must conduct their business in the open — serve as restrictions on committee work.
Establishing a committee and making appointments
When councils decide to establish standing committees of their members, they should enact an ordinance to define how the system will work. The ordinance should establish clearly that the committees are subordinate to council and that they exist entirely as a resource to the council — for example, by vetting issues and promoting efficiency in the council’s work.
The ordinance should also specify how the council appoints members to the committees, and define the length of the appointments. State law does not specify how a council should handle the appointments. Unless a local ordinance states otherwise, the Municipal Association of SC recommends that councils operate with the assumption that the power to decide on committee appointments falls to the entire council, rather than just with the mayor or any other subgroup.
Restrictions on delegating power
SC Code Section 5-7-160
provides that “[a]ll powers of the municipality are vested in the council.” The courts and the SC Attorney General have interpreted this provision to mean that councils cannot delegate legislative powers. For example, the Attorney General’s office issued an opinion on November 13, 2003
, stating “[a] municipal governing body cannot delegate to a municipal officer or even to one of its own committees the power to decide legislative matters” [emphasis added].
The hard question is to identify those “legislative” functions that cannot be delegated. Any matter that requires an ordinance under SC Code Section 5-7-260
cannot be delegated. Many other council functions, however, are legislative and so the council cannot delegate them. The best practice for city and town councils is to avoid allowing subsidiary bodies to make final decisions on any council business unless specifically allowed by law.
The SC Freedom of Information Act applies to “committees, subcommittees, advisory committees, and the like.” In Quality Towing v. City of Myrtle Beach
, the SC Supreme Court held that FOIA open meeting laws applied to a committee consisting entirely of staff who could only recommend a procurement award. FOIA requires open meetings after appropriate notice, even for a committee with no elected officials and without final decision-making authority.
It is sometimes difficult to determine whether a subsidiary body is a “committee, subcommittee, advisory committee, [or] the like.” If the council itself established the subsidiary body, then open-meeting rules will almost certainly apply. Other situations may present a closer call. The safest course is to assume that any formally constituted subsidiary body will be subject to open-meeting requirements.
Learn more about open-meeting requirements under FOIA in the SC Press Association’s
Public Official’s Guide to Compliance with the S.C. Freedom of Information Act handbook.