Friday Report - April 8, 2022

Both the House and Senate spent most of the week on the floor debating bills in advance of today’s crossover deadline. Any bill that did not pass out of its originating chamber is likely dead for the year.

The Senate gave S. 984, the user fee authorization bill, a third reading on Thursday and sent the bill to the House. Thank you to all county officials who reached out to their Senators to ask for support of this important piece of legislation! Also, a huge thank you to the sponsors of the bill, Sens. Hembree, Massey, Gustafson, and Rankin and also to Sens. Davis, Johnson, and Fanning for stressing the importance of the bill during debate on the Senate floor!

S. 984 and several bills of note will be discussed below in this week’s Friday Report.

Revenue, Finance and Economic Development

User Fee Authorization – S. 984. S. 984, an SCAC priority, is in response to the June 30, 2021, SC Supreme Court decision in Burns v. Greenville County, which imperils various user fees, especially road use fees, imposed by counties and cities in South Carolina. Prior to this decision, user fees were analyzed under the Brown test that found a fee to be valid if: 

1. the revenue generated is used to the benefit of the payers, even if the general public also benefits;
2. the revenue generated is used only for the specific improvement contemplated;
3. the revenue generated by the fee does not exceed the cost of the improvement; and
4. the fee is uniformly imposed on all the payers.

Under the newly imposed Burns test, fees must benefit fee payers differently than the general public regardless of the purpose of the fee or how it benefits the fee payer. S. 984 would legislatively reinstate the Brown test and allow the general public to benefit from a user fee provided the fee payer benefits and the other elements of the Brown tests are met.

On Thursday, the Senate adopted an amendment by Senator Rice that will require any county that repealed its road use fee, raised property taxes in response, and subsequently reimposes their road use fee, to lower property taxes by the amount previously raised. The amendment will also require counties to post on the county website the amount of the fee and the amount of revenue collected annually by the fee. The Senate also adopted an amendment by Senator Kimpson stating that any future legal challenges to service fees would not be subject to Section 8-21-30 of the Code which allows up to ten times damages for those challenging a fee. This amendment also deleted the language that applies the Brown test to all service or user fees imposed after December 31, 1996. Upon adoption of these amendments the Senate gave the bill a third reading and sent S. 984 to the House.

American Rescue Plan Act (ARPA) – H. 4408. The Senate Finance American Rescue Plan Act Subcommittee met Tuesday to take up H. 4408, the House plan for allocating state ARPA funds. The subcommittee amended H. 4408 with a strike and insert amendment that would apply the Senate’s plan passed earlier this year (S. 952) of allocating the first phase of funds.

Under phase one of the Senate’s plan, over $453 million in funding would be allocated to SCDOT, $400 million to the Office of Regulatory Staff (ORS) for the State Broadband Office to expand access to high-speed broadband internet, and $900 million to the South Carolina Rural Infrastructure Authority (RIA). The RIA would be directed to use approximately $800 million of the designated funds to establish three separate grant programs for water, wastewater, and stormwater projects to provide local governments with opportunities to build and update aging infrastructure across the state. The RIA would also designate $100 million of its allotment for projects that are deemed significant to economic development. Additionally, the RIA would be required to transfer $500,000 to each of the 10 Council of Governments (COGs) for planning assistance, development of grant proposals, and compliance assistance related to improvements in water, wastewater, and stormwater infrastructure for smaller systems.

Also included in the subcommittee’s amendment would be the addition of $185 million from the “Capital Project Expenditure Fund” that would be dedicated to broadband projects under ORS as well as funding for a new DHEC public health laboratory. As a result of the changes in the Senate plan, $818 million in state ARPA funds would be left for allocation following the phase one distributions. H. 4408 received a favorable report, as amended, and was sent to the full Senate Finance Committee.

Tax Credits – S. 1120 / H. 5075. S. 1120 and H. 5075 are a pair of companion bills that would cap the state’s Workforce and Senior Affordable Housing Tax Credit Program at $15 million each year. In January, a moratorium was put in place on this tax credit program after demand exceeded financial expectations by hundreds of millions of dollars. As amended, this legislation would preserve no less than 50 percent of the $15 million cap specifically for projects in rural areas that apply for the 9 percent federal low-income housing tax credit. A new scoring program through the Joint Bond Review Committee would also be implemented to award funds to projects that are deemed to be the highest priority, setting up a more competitive process for developers to receive tax credits. The Senate gave S. 1120 third reading and sent it to the House. The House gave H. 5075 third reading and sent it to the Senate. 

License Tax Credits Allowed for Contributions to Qualifying Infrastructure and Development Projects – H. 3340. This legislation, as amended, increases the maximum annual license tax credit amount for eligible infrastructure projects for utility companies beginning in tax year 2021 from $400,000 to $600,000. The bill would also expand the definition of qualifying infrastructure improvements and provides for an additional higher maximum license tax credit at graduated amounts up to an additional $150,000 for eligible projects in Tier II, III, and IV counties based upon the Jobs Tax Credit. H. 3340 received a second and third reading and was sent to the Senate.

Telephone Cooperative Property Tax Exemption – H. 5144. Section 12-37-220(B)(10) provides a property tax exemption to telephone companies and rural telephone cooperatives that were exempt from property taxes as of December 31, 1973. H. 5144 amends this exemption to further exempt all property of these cooperatives, including property used for broadband and other services, which essentially codifies the Farmers Telephone court case. The House gave H. 5144 a second and third reading this week and the bill has been sent to the Senate.

Hurricane and Flood Damage Property Assessments - H. 4243. This bill would require an adjustment in assessed value for real property and improvements which have sustained damage as a result of flooding or a hurricane, provided that the application for correction of the assessment is made prior to payment of the tax. The House adopted an amendment to include wind events such as hurricanes and tornadoes before giving the bill second and third readings and sending it to the Senate.

Electrical Utility Storm Recovery Fees – S. 1077. This legislation would allow the Public Service Commission (PSC) to authorize an electric utility's issuance of securitized bonds to offset and reduce costs incurred for storm recovery activity. The PSC would be responsible for reviewing securitization mechanisms to determine approval, which may only be granted if the electric utility's use of this mechanism provides quantifiable net benefits to customers and will result in the lowest storm recovery charges. The bill further establishes the processes for the authorization of these bonds, and as part of the requirements, electric utilities are required to provide functional exhibits and workpapers to the PSC and to the Office of Regulatory Staff (ORS) supporting any petitions, testimony, and exhibits. S. 1077 received third reading and has been sent to the House.

SCRS and PORS Contributions – H. 3106. This bill provides that an employer may elect to pay all or a portion of the required employee contributions to either the South Carolina Retirement System or the Police Officers Retirement System. The House Ways and Means Committee amended the bill to clarify that employee contributions picked up by an employer pursuant to Section 9-11-225(E) without a reduction or offset from the member's compensation are not compensation for the purposes of the system. H. 3106 received second and third readings in the House this week and was sent to the Senate.

Earnings Limitation – H. 4918. This bill increases the amount that may be earned without affecting the monthly retirement allowance from $10,000 to $50,000 for certain members of the South Carolina Police Officers Retirement System. The House adopted a committee amendment to include members of the South Carolina Retirement System as well as critical needs law enforcement positions as determined by the Law Enforcement Training Council and gave H. 4918, an SCAC policy position, second and third readings before sending the bill to the Senate.

Disabled Veterans Property Tax Exemption – H. 3669. This bill provides that veterans of the Armed Forces of the United States that are permanently and totally disabled as a result of a service-connected disability and who file with the department a certificate signed by the county service officer may immediately claim a property tax exemption for the entire year in which the disability occurs. H. 3669 received second and third readings in the House this week and was sent to the Senate.

Tax Conformity – H. 5057. This bill conforms the state tax code with any changes to the federal tax code and updates the reference year to 2021. The House gave H. 5057 second and third readings this week and sent the bill to the Senate.

Land Use, Natural Resources and Transportation

Electronic Waste – H. 4775. This legislation, an SCAC policy position, establishes a new statewide “Manufacturer Electronic Waste Recovery Program” for covered televisions and computer monitor devices (ex: old CRT TVs). Counties are currently faced with large financial burdens to recycle these items as a result of there being no market for the devices and due to the fact that these devices cannot go into a landfill. Under the old program, manufacturers only had to recycle 80 percent of the pounds sold, leaving counties to shoulder the cost of recycling any devices that remained at county facilities.

The new program would require that all covered television and computer monitor devices must be picked up from counties, providing significant cost savings for disposing of these devices. Language in the bill provides protection to counties from financial liability once these devices leave a county facility. This addresses the issue of counties being sued for devices that were stored offsite. The bill provides for a sunset of the program in 2029 and also requires all stakeholders to reconvene on June 1, 2026, to assess how the program is working and whether there needs to be changes or updates to the program going forward. The House gave H. 4775 second and third readings this week and sent the bill to the Senate.

Hazardous Waste Cleanup – H. 4999. This bill provides standards for certain types of hazardous waste cleanup, removal, and remediation. It also provides site-specific remediation standards. The House amended the bill and gave it third reading. H. 4999 has been sent to the Senate.

Public Safety, Corrections and Judicial

Law Enforcement Officer Workers’ Compensation for Psychological Injuries – H. 3939. This bill, as originally introduced, would exempt law enforcement officers from having to establish by a preponderance of the evidence that stress, mental injury, or mental illness arising out of or in the course of employment when the officer is directly involved in, or subject to, the use of deadly force in the line of duty stems from conditions that are extraordinary or unusual relative to the normal conditions of employment for purposes of collecting workers’ compensation. The House amended the bill to do the following:

• Exempts first responders from having to establish by a preponderance of the evidence that stress, mental injury, or mental illness diagnosed as an anxiety disorder, conduct disorder, depression, obsessive-compulsive disorder, sleep-wake disorder, or post-traumatic stress disorder as described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association and arises from the first responder's involvement in a significant traumatic experience or situation in the course and scope of his employment stems from conditions that are extraordinary or unusual relative to the normal conditions of employment for purposes of collecting workers’ compensation.
• Defines “first responders” as law enforcement officers and firefighters, including volunteers.
• Defines “significant traumatic experience” to mean one of 11 defined events. The 11 compensable events in the new language are:

1. Witnessing a deceased minor or the death of a minor;
2. Witnessing an injury to a minor who subsequently died before or upon arrival at a hospital emergency department;
3. Participating in the physical treatment of an injured minor who subsequently died before or upon arrival at a hospital emergency department;
4. Manually transporting an injured minor who subsequently died before or upon arrival at a hospital emergency department;
5. Seeing for oneself a decedent whose death involved grievous bodily harm;
6. Witnessing a death, including suicide, that involved grievous bodily harm;
7. Witnessing a homicide regardless of whether the homicide was criminal or excusable, including murder, mass killing (killing three or more individuals in a single incident), voluntary manslaughter, involuntary manslaughter, and self-defense;
8. Witnessing an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured with grievous bodily harm;
9. Participating in the physical treatment of an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured with grievous bodily harm;
10. 1Manually transporting a person who was injured, including by attempted suicide, and subsequently died before or upon arrival at a hospital emergency department if the person was injured with grievous bodily harm; or
11. Using deadly force or being subjected to deadly force in the course of the employment.

• Defines “grievous bodily harm” as serious bodily injury including fractured or dislocated bones, deep cuts, torn members of the body, serious damages to internal organs, and other severe bodily injuries.

The House further amended the bill to require a law enforcement officer who has received a workers’ compensation benefit and who is later convicted of an unlawful killing to pay the benefit back to his employer. A Senate Judiciary subcommittee amended the bill to mirror a companion bill S. 94 that is on the contested calendar of the Senate by removing all of the other types of mental injuries listed, leaving only post-traumatic stress disorder. They also removed the provision requiring a law enforcement officer convicted of unlawful killing to pay the benefit back to the employer and gave the bill a favorable report as amended. SCAC testified in opposition to the bill and has been asked to work with Senate staff on trying to reach an alternative solution to this issue.

Raise the Age Juvenile Justice Reform – S. 90. This joint resolution proposes an amendment to Section 3, Article XII of the Constitution, to specify that the General Assembly will provide for separate confinement of juvenile offenders under the age of 18. Currently, the age for separate confinement is under the age of 17. Additionally, this proposed amendment will be printed on the ballots for the next general election. If the Constitution is amended, this will require a shift of incarcerated persons who are 17 and currently housed in an adult facility to a juvenile facility. S. 90 received third reading and has been sent to the House.

Children in Adult Confinement – S. 22. This bill would prohibit a juvenile that is being held in an adult jail or detention center from being held in that facility for more than 6 hours and require that they be separated from the adults confined in the jail or detention center. It would also reduce the time a juvenile may be held in juvenile detention for a status offense from 72 hours to 48 hours. S. 22 was moved to the contested calendar and is likely done for the session.

Register of Deeds Qualifications – S. 1031. This bill would provide that in order to hold the office of register of deeds, a person must be a US citizen, must be a qualified elector of the applicable county, must hold a four-year bachelor's degree or four years of experience in law, real estate, accounting, or as an employee in a register of deeds office. They must also not have a pattern of failing to record documents in the office in the time and manner prescribed by law. Any register of deeds serving prior to the enactment of S. 1031 would be grandfathered from these requirements. The Senate Judiciary Committee amended S. 1031 to apply to both elected and appointed register of deeds and allows an action to be brought by the Attorney General to remove a register of deeds who does not meet the qualification requirements or who has a pattern of not recording documents in a timely manner. The Senate gave the bill second and third readings and sent it to the House.

Autopsy Photos - H. 4948. This bill allows coroners the discretion to release photographs, videos, or other visual images and audio recordings related to an autopsy to family members and personal representatives of the deceased. Currently, these photographs and videos can be viewed and disseminated to these individuals. This bill is not expected to have an expenditure impact on county governments since it gives coroners the discretion to release certain autopsy information to family members. However, one county indicates that the bill could increase expenses for legal costs depending on the number of denied requests. The House Medical, Military, Public and Municipal Affairs Committee adopted the subcommittee amendment that provides that crime victims have a right to confidentiality and gave the bill a favorable report, as amended. H.4948 received third reading and has been sent to the Senate.

Pregnant Inmates - H. 4541. This bill establishes requirements for prisons, local detention facilities, and prison work camps regarding the treatment of pregnant and postpartum inmates. These requirements include the following:

• within seven days of arrival at a prison, detention center, or prison work camp, an inmate who is confirmed to be pregnant must be scheduled for a pregnancy examination by a qualified provider;
• pregnant inmates must receive a prescribed schedule of prenatal care visits and have access to newborn care;
• pregnant inmates who have used opioids prior to incarceration must be provided with medication-assisted treatment and information on withdrawal;
• an inmate who gives birth after incarceration must be provided with information on relevant community-based programs and be referred to a social worker;
• a pregnant inmate who is in labor must be transported to a state-licensed hospital or birthing center for the purpose of giving birth and may opt to have an approved support person present; and
• postpartum inmates must be allowed 12 weeks for recovery, during which time they must receive follow-up medical care.

The House gave H. 4541 third reading and it has been sent to the Senate.

Opioid Recovery Fund – H. 5182 and S. 1203. These bills are part of the requirement of the opioid lawsuit settlement for this state and the 46 counties and 43 municipalities that were a part of the lawsuit. The bills establish the opioid recovery fund accounts with the state treasurer. It also creates the South Carolina Opioid Recovery Fund Board which will administer and distribute the funds. The Board will be composed of nine members, who shall be appointed as follows:

1. the Governor shall appoint one member, who shall serve as chairperson;
2. the President of the Senate shall appoint one member;
3. the Speaker of the House of Representatives shall appoint one member;
4. the Governor shall appoint five members from a list provided by the South Carolina Association of Counties (SCAC), with at least one member selected from each of the South Carolina public health regions as defined by the South Carolina Department of Health and Environmental Control;
5. the Governor shall appoint one member from a list provided by the Municipal Association of South Carolina; and
6. the members appointed by the Governor, other than the chairperson, shall select one of themselves to serve as vice chairperson.

Instead of five members as specified in H. 5182, S. 1203 states that the Governor shall appoint three members, the Speaker one member, and the President of the Senate one member from a list provided by SCAC, with at least one member selected from each of the South Carolina public health regions as defined by the South Carolina Department of Health and Environmental Control.

All members of the board shall be academic, medical, licensed health, or other professionals with significant experience in opioid prevention, treatment, or intervention or who can represent the interest of the victims and families of victims of opioid overuse or misuse.

Several accounts will be set up to administer the funds:

• The Administrative Subfund to be used by the board and the State Fiscal Authority for costs associated with administering the funds;
• The Guaranteed Political Subfund for the counties and municipalities that were part of the lawsuit settlement;
• The Discretionary Subfund to be distributed to other entities that may or may not have been a part of the lawsuit such as nonprofits, at the discretion of the board.

All funds must be spent on opioid abatement strategies and all request for funds must be approved by the board.

A House Judiciary subcommittee amended the bill to conform to the board appointment process in S. 1203 and gave the bill a favorable report. It is likely both bills are dead for the session.

Immigration Enforcement – S. 1032. This bill would repeal the Illegal Immigration Enforcement Unit within the SC Department of Public Safety and move the unit to the South Carolina Law Enforcement Division (SLED) to enforce state and federal immigration laws. SLED would be required to enter into a Memorandum of Agreement with US Immigration and Customs Enforcement. The bill would also allow counties and local law enforcement agencies to enforce applicable state and federal immigration laws. The Senate amended the bill by repealing Title 8, Chapter 30 of the SC Code of Laws pertaining to the reporting of immigration law violations, gave the bill third reading and sent it to the House.

Fitness to Stand Trial – S. 79 and H. 3773. These companion bills would establish restoration treatment as an option for individuals who are found unfit to stand trial, but who are likely to become fit in the foreseeable future. Currently, if an individual is found to be unfit to stand trial but likely to be fit in the foreseeable future, the individual is hospitalized for up to 60 days. After this 60-day period, if the individual is still found to be unfit to stand trial, the solicitor responsible for prosecution shall initiate judicial admission proceedings to have the individual involuntarily hospitalized. This bill would allow individuals found unfit to stand trial who are likely to become fit in the foreseeable future to undergo restoration treatment provided by the Department of Mental Health for up to 180 days. This bill also gives DMH the discretion to provide restoration treatment at a hospital or detention facility if an individual is detained, or in a hospital or outpatient basis if the individual is on bond. The Senate adopted a committee amendment so that a detention center has the option of whether or not to allow a detained individual to receive he restoration treatment while in the detention facility. A court can still impose all of the normal provisions in a bond for an individual receiving restoration treatment. S. 79 was amended to include the provisions of H. 3773. The Senate gave H. 3773 second reading and while S. 79 is pending second reading on the Senate calendar, it is likely dead for the session.

County Government and Intergovernmental

Volunteer Strategic Assistance and Fire Equipment Program (“V-SAFE”) – H. 3252. This legislation amends and updates the “Volunteer Strategic Assistance and Fire Equipment Program” (V-SAFE) which would be housed within the Division of the State Fire Marshall. The program seeks to provide grants to eligible volunteer and combination fire departments for the purposes of protecting local communities and regional response areas from incidents of fire, hazardous materials, and to provide for the safety of volunteer firefighters. In order to be eligible for grant funding, a fire department must have at least 50 percent of its staff serving as volunteers, which was reduced from the 75 percent volunteer requirement in previous years. The existing funding cap of $30,000 to a single fire department once every three years was also removed. Eligible fire departments would receive annual grants totaling approximately $20,000 per department that would be funded. Funding for the V-SAFE program would be provided by increasing the percentage of the insurance premium tax revenue that is allocated to the program and crediting 1 percent of the manufacturer’s depreciation reimbursement amount to the program. H. 3252 received a second and third reading and was sent to the Senate.

"South Carolina Religious Freedom Act" – H. 3105. This legislation would designate religious services that take place in "houses of worship" as essential services during a declared state of emergency. As a result, religious services, as defined under the bill, would be allowed to continue operating throughout the duration of any such state of emergency. Any "houses of worship" that are denied their right to worship in such conditions would be provided the right to seek declaratory and injunctive relief in addition to compensatory damages for pecuniary and nonpecuniary losses. The Senate gave the bill second and third readings, and the bill has been returned to the House with amendments.

Vaccine Mandates – H. 3126. This bill would prohibit political subdivisions from enforcing a federal COVID-19 vaccine mandate or enacting a COVID-19 vaccine mandate. This week, H.3126 was extensively debated on the Senate floor in special order status. As amended by the Senate, H. 3126 does the following:

• the state or any political subdivision, including a school district, may not enact a COVID-19 vaccine mandate for employees, independent contractors, first responders, or nonemployee vendors as a condition of employment or conducting business with the state or a political subdivision;
• if the state or any political subdivision is subject to a federal requirement that would lead to the forfeiture of federal funds due to a failure to require employees, independent contractors, first responders, or nonemployee vendors to receive a COVID-19 vaccination, the employer may require an unvaccinated employee, independent contractor, first responder or nonemployee vendor to undergo weekly COVID-19 testing if the federal requirement allows for testing as an alternative to vaccination or the employee is eligible for unemployment benefits subject to the benefit amounts, duration, and requirements, as provided in Article 1, Chapter 35, Title 41, if the federal mandate gives the employer no alternative to terminating the employee without forfeiting federal funds;
• DHEC and MUSC shall partner with state and local government employers to provide COVID-19 testing;
• Nothing contained in this act shall prevent an employer from encouraging, promoting, or administering vaccinations, and nothing in this act shall prevent an employer from offering incentives to employees who elect to be vaccinated;
• A religious exemption or medical exemption must be honored regarding any COVID-19 vaccine or booster requirement;
• All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation based on the person's vaccination status; and
• A severability clause.

The Senate gave the bill second and third readings, and the bill has been returned to the House with amendments.

Medical Marijuana – S. 150. The bill establishes the "SC Compassionate Care Act." The South Carolina Medical Cannabis Program creates a seed-to-sale system to provide for the sale of medical cannabis to treat a qualifying patient's debilitating medical condition or alleviate symptoms when recommended by a physician. SCAC's policy position is to oppose the legalization of medicinal marijuana due to the lack of FDA approval. A House Medical, Military, Public and Municipal Affairs subcommittee gave the bill a favorable report, as amended, and will be on the next full committee's agenda.

J. Mitchell Graham/Barrett Lawrimore Memorial Awards Call for Entries

The Association is currently accepting applications for the 2022 J. Mitchell Graham/Barrett Lawrimore Memorial Regional Awards Competition. All applications must be submitted online or received at the SCAC Office by 5 p.m. on Friday, May 6. Applicants who meet the submission deadline and all requirements will be scheduled to present their projects in-person on June 9 at SC ETV in Columbia. The competition will be livestreamed, and award winners will be announced during the 2022 Annual Conference.

For more information about the competition and how to apply, please see the 2022 Awards Brochure and the Awards Toolkit on the Association’s website. If you have additional questions, please contact Susan Turkopuls at STurkopuls@scac.sc.

Newly-Introduced Legislation

View/Download Full Text for Newly-Introduced Legislation

Note: If you would like to offer comments to the SCAC staff, please call us toll-free at 1-800-922-6081, fax to (803) 252-0379, or send an email. You can also go to www.scstatehouse.gov and click on "Legislation," then "Introduced Legislation."

Senate Bills

S. 1229 — Sets forth a process for the Department of Revenue and taxpayers to accurately determine net income.

S. 1236 — Creates the "Gas Rebate Fund" which must be used to provide a $100 rebate to certain taxpayers in months that the average retail price of certain gasoline exceeds $4 per gallon.

House Bills

H. 5194 — Makes certain provisions applicable to public officials and public employees of counties, municipalities, and other local governmental entities, as well as to those individuals or entities who are employed, appointed, or retained by another person to influence covered local governmental actions by direct communication with local public officials or public employees.

H. 5195 — Authorizes a law enforcement officer, a prosecutor, or the attorney general to require the disclosure of electronic communications and other related records by a provider of an electronic communication service or remote computing service under certain circumstances.

H. 5196 — Authorizes the governing body of a municipality to annex an area by ordinance if the area is completely surrounded by the municipality.

H. 5223 — Prohibits custodial arrest of a person in possession of a lawful handgun and prohibits confiscation of a lawful handgun under certain circumstances.

H. 5233 — Enacts the "South Carolina Agribusiness, Rural, and Opportunity Zone Jobs Act."