The following is being printed courtesy of the Municipal Association of South Carolina. It comes from their publication, “Forms and Powers of Municipal Government: An Elected Official’s Guide from the Municipal Association of South Carolina.”
All municipal governments in South Carolina operate under one of three forms of government: mayor-council, council or council-manager.
Forms of Government
Although the revised constitution allowed the legislature to approve by general law up to five forms of government for municipalities, the General Assembly authorized just three in the Home Rule Act. S.C. Code 5-5-10.
• mayor-council form
• council form
• council-manager form
In addition, the Home Rule amendments required the General Assembly to provide two or more optional procedures for framing and adopting a municipal charter setting forth the organization, powers and functions of a particular municipality. S.C. Constitution Article VIII, Section 11.
The General Assembly has never adopted a statute implementing this true Home Rule provision.
All South Carolina municipalities must operate under one of the three forms of government. When Home Rule passed in 1975, municipalities had to select one of the specified three forms “most nearly corresponding to the form in effect in the particular municipality on March 1, 1974” unless they adopted a new form by referendum after March 1, 1974, but before June 1, 1975.
While council’s legislative functions are the same for all three forms, state law or council policy specifically authorizes who performs the executive and administrative functions under each form.
Changing form
An election to change the form of municipal government can be called for by a certified petition of 15 percent of the qualified electors or by an ordinance of council. S.C. Code 5-5-20. A municipality may hold an election to change its form of government only every four years. Under the Voting Rights Act, U.S. Department of Justice must pre-clear implementation of an election result in favor of changing the form of government. Following the election, the municipality must notify the secretary of state’s office if the form of government changes. S.C. Code 5-5-30.
Requirements for all Forms of Government
The General Assembly provides for the powers, duties, functions and responsibilities of municipalities by general law. S.C. Constitution Article VIII, Sections 8 and 9.
The state constitution prohibits local and special laws. S.C. Constitution Article VIII, Sections 7 and 10.
Council must meet at least once in every month. The mayor or a majority of council may call for a special meeting. S.C. Code 5-7-250.
Council must adopt rules of procedure by ordinance. S.C. Code 5-7-250, 270.
Meeting procedures must not conflict with the Freedom of Information Act. The Freedom of Information Act requires written public notice of regular council meetings at the beginning of each calendar year, requires posting of a 24–hour notice for all special and rescheduled meetings, and requires giving notice to the media and other parties who request notice. Council may only take formal actions during a public meeting. S.C. Code 30-4-60, 70. The municipality must take minutes of all public meetings and preserve them as public records. Minutes of executive sessions are not required. S.C. Code 30-4-90.
Council must follow all statutory requirements for form, method of introduction, and adoption of ordinances and resolutions. S.C. Code 5-7-260, 270.
Statutory Powers:
Mayor-Council Form
Municipalities under the council form of governmenthave five, seven or nine members, including a mayor.
The mayor presides over meetings (by tradition), performs ceremonial duties, calls special meetings, designates a temporary judge, performs administrative duties (only if authorized by council), and acts and votes as a member of council. The mayor has no additional statutory authority beyond that of other council members.
Municipalities under the mayor-council form have a mayor and no less than four council members. The mayor presides over meetings (S.C. Code 5-9-30(3)) and calls special meetings. He designates a temporary judge, acts as chief administrative officer, and appoints and removes employees subject to personnel rules adopted by council.
The mayor supervises departments, acts and votes as a member of council, and ensures the faithful execution of laws. In addition, the mayor prepares and submits a budget and capital program to council, makes an annual financial report to the public and council, and reports to the council on the operation of departments.
Council-Manager Form
Municipalities under the council-manager form have a mayor and four, six or eight council members. The mayor presides over meetings (by tradition), calls special meetings, designates a temporary judge, and acts and votes as a member of council. The mayor has no administrative powers and has no additional statutory authority beyond that of other council members.
Council Form
Under the council form, the council has all legislative, policy and administrative power. Council establishes departments and prescribes functions; may hire an administrator to assist council; may appoint an officer to administer departments subject to council direction; investigates departments: appoints a clerk, attorney and judge; elects the mayor pro tempore (S.C. Code 5-7-190); and prepares and adopts a balanced budget.
Mayor-Council Form
Under the mayor-council form of government, the council establishes departments, prescribes functions and may employ an administrator to assist the mayor. The council also investigates departments; appoints a clerk; attorney and judge; elects the mayor pro tempore; and adopts a balanced budget
Powers of the
administrator or manager
Council-Manager Form
Under the council-manager form, the council has all legislative and policy powers. Council employs a manager, attorney and judge; elects the mayor pro tempore; establishes departments and functions; and adopts a balanced budget. Also, the council authorizes bond issues, investigates departments, adopts plats and the official map, provides for an annual audit, exercises general police powers, appoints boards and commissions with advice of the manager, appoints a temporary manager (if necessary), and may require surety bonds. The specific statutory powers listed for each form of municipal government primarily reflect the administrative differences between the forms. General powers applicable to all forms exist as well.
Powers of Administrator
or Manager
Council Form
Council may appoint an administrator to assist council.
The administrator only has the authority delegated by council. Council may appoint an officer of the city, other than a member of council to administer departments. S.C. Code 5-7-180.
Mayor-Council Form
Council may appoint an administrator to assist the mayor. The administrator has all authority delegated by the council. However, such authority may not be in conflict with authority delegated by state law
Council-Manager Form
The manager is the chief executive and head of the administrative branch. He appoints, sets salaries and removes employees at will, including the clerk. The manager also prepares and administers the annual budget, makes financial reports, advises council on departments and appointments, and designates a manager during temporary absence.
Powers for all Forms
Municipalities are not sovereign bodies with inherent powers. They are political subdivisions of the state with those powers delegated by state law, fairly implied from state law and not inconsistent with the state constitution and state law.
The Home Rule Act did not change all prior statutes dealing with municipal and county governments, but it extensively broadened the powers of counties and mandated that local government powers be construed liberally rather than strictly. A general grant of power is now construed to include those powers fairly implied and not prohibited by the constitution or in conflict with general law. S.C. Constitution Article VIII, Section 17; S.C. Code 5-7-10.
All powers of a municipality are vested in the council, except as otherwise provided by law. S.C. Code 5-7-160.
The council is the municipality for purposes of exercising the powers granted by state law. Mason v. Williams, 194 S.C. 290, 9 S.E.2d 537 (1940)
Municipal powers are referred to in various ways according to the nature of the authority and procedure for exercising them.
Legislative
The municipal council is a legislative body and is the only municipal body authorized to enact ordinances, adopt resolutions and establish policies. Only council can exercise legislative power. Council may not delegate or contract away this power
Executive
The exercise of executive functions and general control of municipal operation varies with the form of government. In the council form, council exercises executive functions, unless the functions are delegated to the mayor or an administrator employed by council to assist the council. S.C. Code 5-11-40. In the mayor- council form, the mayor is the chief executive with powers granted by statute. S.C. Code 5-9-30.
In the council-manager form, the manager is the chief executive officer and head of the administrative branch of the municipal government. The manager has specific powers granted by statute which council cannot change or abolish. S.C. Code 5-13-90
Judicial
Only municipal courts can exercise judicial powers. The courts are part of the unified court system under the administrative control of the chief justice of the South Carolina Supreme Court. In all forms of municipal government, council appoints municipal court judges. The council may contract with county council to provide a magistrate as judge in the municipal court.
Quasi-Judicial
Building and zoning boards of appeals have powers authorized by statute. The boards are quasi-judicial in that they involve conducting a hearing, introducing and considering evidence, and applying law to the evidence to reach a decision. This process is similar to the judicial functions of courts. An appeal from a board decision is filed in circuit court.
Administrative
Day-to-day implementation of council policies involves administrative duties that vary with the form of government in the same manner as executive functions (council, mayor, manager or administrator).
Discretionary
Discretionary powers involve the exercise of judgment by the council, manager, administrator or public employee with delegated authority. An appointment or discharge of an at-will employee is a discretionary function.
Discretionary powers involve the exercise of judgment by the council, manager, administrator or public employee with delegated authority. An appointment or discharge of an at-will employee is a discretionary function.
Ministerial
Duties performed as required by law without exercise of independent judgment are referred to as ministerial duties. Issuing a license or permit to an applicant who meets all requirements of the applicable law is an example of a ministerial duty.
Contractual
A municipality and another party may be bound by agreement under contract laws in matters such as purchasing goods and services; buying, selling or leasing land; contracting for construction projects; providing services and franchises. Council may delegate the power to contract, unless approval is required to be given by ordinance (e.g., sale or lease of property, franchise for use of streets).
To view this publication in its entirety, please visit the Municipal Association of South Carolina’s website, http://www. masc.sc.
