Legislative Power-Grab Ending?

July 16, 2010

Investigative Reports

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The NerveBetter late than never, as the old saying goes.

More than eight years after the S.C. Supreme Court ruled that county legislative delegations couldn’t control certain state Department of Natural Resources funds for their counties after the General Assembly appropriated the money, the S.C. Senate on June 29 – the last legislative session day of this year – quietly made it official for fiscal year 2010-11, which started July 1.

But there are no guarantees for next fiscal year, says the senator who pushed for the budget language change.

“Next year when this budget is passed by the House, it will be back in there,” predicted Sen. Tom Davis, R-Beaufort, when contacted by The Nerve last week. “It’s like a weed.”

At issue is about $4 million annually, according to DNR Deputy Director Carole Collins.

The Senate on June 29 voted 39-3 to sustain Gov. Mark Sanford’s vetoes of two provisos (37.16 and 37.17) that would have allowed county delegations to determine how money from the state Water Recreational Resource Fund and county hunting and fishing fines earmarked for their counties would be spent by the Department of Natural Resources.

The provisos were among only four budget vetoes that the Senate sustained. The House earlier voted overwhelmingly to override the two vetoes.  To override a veto, both chambers must agree to do so by a two-thirds vote.

In his veto message, Sanford said the provisos violated a 2002 ruling by the S.C. Supreme Court, which overturned a state law giving county delegations the power to tell DNR  how to specifically spend appropriated money  in their counties from the Water Recreational Resource Fund.  The justices unanimously said the law violated the state constitutional separation of powers among the three government branches.

The ruling stemmed from a lawsuit filed against the department by then-Rep. Jake Knotts, R-Lexington, acting as chairman of the Lexington County delegation, and the entire county delegation. (In an ironic twist, Knotts, now a state senator, voted on June 29 to sustain the two proviso vetoes; the only  senators voting to override them were John Land, D-Clarendon; Phil Leventis, D-Sumter; and Glenn Reese, D-Spartanburg.)

“The Founding Fathers’ governmental philosophy was in large measure based on the separation of powers,” Sanford said in his veto message. “These two provisos ignore that principle by having a legislative body execute the laws.”

After the Supreme Court ruling, the General Assembly changed the law (12-28-2730) to allow county delegations to make recommendations only on projects in their counties.  But lawmakers year after year approved budget provisos, which have to be renewed annually, giving them final say over the funds, records reviewed by The Nerve show. Sanford routinely vetoed those provisos, though they easily were overridden by the Legislature.

So why did the Senate finally agree with Sanford this year and sustain his vetoes?

Last year, Davis obtained a formal written opinion from S.C. Attorney General Henry McMaster saying that the provisos violated the 2002 Supreme Court ruling. Davis, an attorney, told The Nerve that he also obtained a similar opinion from the Senate Judiciary Committee’s legal staff.

Armed with the two opinions and the Supreme Court ruling, Davis asked his Senate colleagues this year to strip the provisos out of the 2010-11 budget, which was done.  Records show the House put the provisos back in, and a budget conference committee approved them, but Davis said he made another appeal to the Senate after Sanford’s vetoes of the provisos to keep them out.

“It was just one of those things,” Davis said about his colleagues’ decision. “They eventually got it, and the light went on.”

Davis said stripping out the provisos was more than just an exercise to clarify legal language, noting the provisos “put into the Legislature’s hands both executive and legislative power.”

Contacted last week by The Nerve, Collins, the DNR deputy director, said that about between $2.5 million and $3 million typically is raised annually through the Water Recreational Resource Fund, which is made up of a portion of gasoline user fees; and another approximate $1.5 million is raised for counties through hunting and fishing fines generated in those counties.

Under state law, water recreation funds are apportioned to counties based on the number of registered boats and other watercraft in those counties, and have to be spent by the Department of Natural Resources to “acquire, create or improve water creational resources.”  Those funds, for example, can be used to improve public boat ramps, Collins said.

The hunting and fishing fines have to be spent in the counties where that revenue is generated for the “protection, promotion, propagation and management of wildlife and fish, and the enforcement of related laws,” according to state law. Collins said that money has been used, for example, to buy equipment for enforcement officers and biologists.

Asked if county legislative delegations in recent years have tried to control the department’s spending decisions for those funds, Collins replied, “That is rare. … Usually, it’s just a matter of simple discussion; usually, it’s not really a problem.”

Still, Collins said although her agency didn’t view the earlier budget provisos “as a mandate,” she acknowledged that if lawmakers “have something they want to do, we certainly give it the highest priority,” though she added, “But if it doesn’t meet the letter of the law, it is sent back.”

Collins said the department has “always been open to appropriate uses of those funds,” and that the latest action by the Legislature will not “make any difference on how we do business.”

“We will continue with the same internal process,” she said. “It works fine.”

Reach Brundrett at (803) 254-4411 or at rick@scpolicycouncil.com.