By admin 
The office of South Carolina’s attorney general has weighed in on the ongoing power struggle between Chapin’s mayor and the other members of the town council.
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Chapin Mayor Pro Tempore Ainslee Bost, one of four council members who have clashed with Mayor Bill Mitchell over the past month in a string of contentious special meetings, wrote to the state’s top legal office asking for a formal opinion on where the balance of power between the mayor and council lies under Chapin’s mayor-council form of government.
South Carolina’s attorney general’s office routinely takes legal questions from elected officials and advises on the legality of local government actions under South Carolina law. Those opinions are published on the office’s website, but no formal opinion was issued in an Aug. 6 response to Bost’s request. Instead, Assistant Attorney General David Leggett referred back to the office’s previously published opinions on S.C. municipal government.
In her request, Bost asked whether the mayor could hire and fire a town attorney, a point of contention before the town council voted to give itself the authority to hire a municipal attorney. Mitchell previously told the council he had hired at least four attorneys in the nine months he has run town hall, something that has become one of the main points of contention between council members and the mayor.
She also asked whether the council or the mayor could direct the town attorney, and whether the mayor could prevent communications between council members and town staff.
The attorney’s opinions supplied by the office would seem to support the position of the council members who have sought more control over how Chapin operates, saying that “under any form of municipal government, the town attorney shall be hired by the town’s council,” and that “authority over the town attorney has been granted to council, not the mayor,” Leggett wrote in an emailed reply obtained by The State.
According to a 2010 opinion cited in the response, state law “is clear that under any form of government, the city council may elect or appoint a municipal attorney. Any other contract with legal counsel would be void.”
“It is the opinion of this Office that the mayor does not have the authority to hire outside counsel without approval except in very extenuating circumstances,” that opinion says.
The attorney general’s previously published opinions also support the idea of open communication between council members and town staff. Chapin council members have complained of being shut out of town operations and of not hearing from department heads during town council meetings.
“It has long been the opinion of this Office that each member of a county or city council should be given access to all records of the county or city,” the email said. State law “makes the mayor responsible for submitting ‘to the council… a complete report on the finances and administrative activities of the municipality as of the end of each fiscal year’ and making ‘such other reports as the council may require concerning the operations of municipal departments, offices and agencies subject to his direction and supervision.’”
While the mayor has a direct supervisor role over town employees under Chapin’s form of government, “the mayor may not use his authorities to preclude the town council from exercising the legislative authority,” Leggett wrote. He attached a previous opinion from the attorney general’s office that spelled out “the legislative functions of council members which may not be usurped.”
The 2013 opinion dealt with a city council member who had attended a staff meeting of the city’s public safety department, and whether that overstepped a council member’s responsibilities. While the law prohibits individual council members from giving direction to municipal employees, the opinion cites precedent that gives a council member leeway in learning about town operations that might impact their official decision-making.
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“South Carolina municipal councils, however, obviously retain their legislative powers and responsibilities to deal with employees and other matters that affect the operation of municipalities,” the opinion reads. “Courts have recognized that the scope of performance of a legislator’s duties is not limited to those acts in a legislative assembly meeting… In addition, courts have concluded that other acts of a legislator, including informal as well as formal information gathering, are part of his or her legislative duties.”
That opinion specifically addresses the council-manager form of government, which places all town employees under a town manager who operates at the direction of the council. But Chapin has a “strong mayor” form of government that places executive power in the hands of the mayor — which may actually give council members more latitude in speaking with town employees, the office wrote.
“As such, the ability of council members to speak with municipal employees should be even wider than what is discussed in the opinion,” Leggett said.
“Determining what limitations on communications are and are not appropriate is a case specific undertaking and requires considering the facts of each situation,” the email says. It directs council members to consult with their attorney.
Bost also submitted some draft ordinances for the office to review, likely some of several changes council members have advanced over Mitchell’s objections at recent meetings. But the office declined to offer an opinion on those, as its attorneys can only answer specific legal questions.
“These ordinances (along with much of your other questions) appear to be born out of political disputes not questions of law, so we decline to comment upon them. We would encourage you to retain legal counsel who can advise you more specifically on this matter,” the email says.
She also asked a question about ratification of a contract. The response from the attorney general’s office doesn’t specify what contract, but this may have been related to a contract with Lexington County requiring sewer service to the Brighton site, which the county now hopes to sell for a new housing development. That 2015 contract is now at the heart of a $20 million lawsuit the county has brought against the town.
“Determining whether a town council has ratified a contract is fact specific and must be considered on a case-by-case basis,” Leggett wrote. “This Office can only render an opinion on general questions of law; it cannot make factual determinations. We recommend that you retain counsel who can advise you more specifically on this question.”
Attempts to contact Bost by The State were not successful before this story was published.
“Overall,” it concludes, “we encourage you, the other members of Town Council, and the Mayor to work collaboratively in pursuant of an amicable resolution to these problems. A functioning government is in the best interest of the public you represent. If you are unable to reach a resolution through discussion and compromise, it may become necessary to pursue litigation.”
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