A recent S.C. Attorney General’s opinion regarding the Capital Project Sales Tax has sparked some discussion among Aiken County and City officials.

The opinion, released on April 23 at the request of S.C. Sen. J. Yancey McGill, states that Capital Project Sales Tax items must be completed in the order in which they are listed on the referendum approved by voters.

The opinion also focused on what would happen if not enough money is raised to cover the items on that list, which is an issue not addressed by state law. The Attorney General’s opinion is that if the capital project Sales Tax is reimposed, those funds “must be only for the specific projects approved by voters in the initial referendum.”

The Capital Projects Sales Tax was implemented in 2000 with the second round approved by voters in 2004 and the third round approved in 2010. Those funds cover infrastructure improvement, parks, public safety and other projects that can benefit the public.

City of Aiken

Aiken City Attorney Gary Smith disagrees with the opinion.

Smith said opinions by the Attorney General are given to offer guidance on a particular issue and are an interpretation of state law. Smith said it’s not a court order and, to his knowledge, there’s no lawsuit regarding this issue working its way through the court system.

So far, the City has received sufficient funds to cover its capital projects over the years. City Manager Richard Pearce said that with the first round of the Capital Project Sales Tax, the City had a surplus of $713,000 which went toward the Pawnee Neilson Connector road. Pearce said the law allows surplus funds to go toward another capital project list item and the connector road was on the Round II ballot.

As for the list and the order in which projects are completed, the City has bounced around and completed some projects before others. The referendum for the last two rounds state that the City reserves the right to complete the projects in the order determined by Council.

Problems obtaining right-of-way or other issues that may stall a project cannot always be anticipated, Smith said.

“Projects hit snags, they are delayed and some are sped up,” Pearce said. “Over the years, we’ve had good success borrowing the money from our reserve accounts knowing that it will be repaid.”

One example of the City skipping ahead to complete a project is the $1 million that was advanced through the municipality’s reserve accounts in 2011 to complete the animal shelter item on the Round III list. The referendum was approved, but those funds were not scheduled to be distributed until about 2013. The City decided to continue its long-term partnership with the Aiken SPCA, which opened its new facility in 2012.

The City had to act sooner than later since shovels for that construction were already in the dirt. The money paid for a parcel of land on which the new shelter was constructed, and the City occupies a portion of that building to use for its animal control program.

Several Council members shared a few concerns about the opinion at a work session held earlier this month. Mayor Fred Cavanaugh asked for staff to review how other municipalities are handling their Capital Projects around the state.

Councilman Dick Dewar said that the opinion recognizes that there may be a valid reason why a municipality shouldn’t move on to the next project when the one before it can’t be completed. He said at the work session that the opinion should not be dismissed.

Aiken County

Aiken County Administrator Clay Killian indicated each of the last two sales tax ballot measures offered flexibility when it came to priority of projects.

While state law mandates local governments fund projects in the order they appear on the ballot, it doesn’t specifically require them to be constructed in the same order, he explained.

The referendum for Round II, for instance, outlined that Burnettown, Jackson, Monetta, New Ellenton, Salley, Wagener and Windsor would receive sales tax funding first, but each town council would determine the order in which the projects were completed.

Under Round II, the first $4.2 million collected was distributed to those towns in alphabetical order, as they were listed on the ballot.

The next $97.8 million was distributed to North Augusta, Aiken and Aiken County in that order.

The governing bodies of each area were allowed to prioritize those projects based on the language of the referendum.

Killian noted that, similar to the City, issues like obtaining rights-of-way forced projects to be moved around and completed before others. “We’ll work with you and try to get the right-of-way and move around the best we can from an engineering point of view, but we’re not going to pay for right-of-way because that just eats up too much of the money to pave the road.”

If the County had to complete the projects in the order listed on the ballot, it would create a backlog of pertinent initiatives, he said.

He pointed to a $2 million project in Round II to construct Emergency Medical Services stations in different parts of the County as a notable example.

Due to a lack of reasonably price land, the County is still waiting to complete one of the substations listed first on the ballot. Killian said the next item, a $400,000 project to replace Sheriff’s Office vehicles and other equipment, would still be on hold if the County had to follow the list exactly.

“Everything was put into progress as far as planning to be able to spend the money in a reasonable amount of time. The money gets collected faster than projects can be built,” he said.

He added the County delineated the priority of the projects in the correct manner in accordance with the state.

“We funded it in the order chosen by County Council. That’s what the ballot allowed us to do,” he said.