Download This Bill in Microsoft Word format
Indicates Matter Stricken
Indicates New Matter
S. 898
STATUS INFORMATION
General Bill
Sponsors: Senators Sheheen, Leventis and Campsen
Document Path: l:\s-res\vas\007gaa2.kmm.doc
Companion/Similar bill(s): 4538
Introduced in the Senate on January 8, 2008
Currently residing in the Senate Committee on Judiciary
Summary: Government Accountability Act of 2008; Solicitation of Charitable Funds Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
-------------------------------------------------------------------------------
12/12/2007 Senate Prefiled
12/12/2007 Senate Referred to Committee on Judiciary
1/8/2008 Senate Introduced and read first time SJ-52
1/8/2008 Senate Referred to Committee on Judiciary SJ-52
1/18/2008 Scrivener's error corrected
1/15/2008 Senate Referred to Subcommittee: Martin (ch), Ritchie, Malloy,
Sheheen, Cleary
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO ENACT THE "GOVERNMENT ACCOUNTABILITY ACT OF 2008", INCLUDING PROVISIONS TO AMEND SECTION 8-27-10(4), RELATING TO THE DEFINITION OF REPORT FOR THE PURPOSES OF THE EMPLOYMENT PROTECTION FOR REPORTS OF VIOLATIONS OF STATE OR FEDERAL LAW OR REGULATION BY PROVIDING THAT A REPORT MAY BE A WRITTEN OR ORAL ALLEGATION OR TESTIMONY TO A LEGISLATIVE COMMITTEE; BY ADDING CHAPTER 2 TO TITLE 2, RELATING TO LEGISLATIVE OVERSIGHT OF EXECUTIVE DEPARTMENTS, TO PROVIDE THAT THE STANDING COMMITTEES OF THE GENERAL ASSEMBLY HAVE A DUTY TO REVIEW AND STUDY THE OPERATIONS OF THE STATE AGENCIES WITHIN THE COMMITTEE'S JURISDICTION, TO ESTABLISH COMMITTEE OVERSIGHT JURISDICTION, TO PROVIDE FOR THE PROCESS BY WHICH A COMMITTEE MAY INITIATE AN OVERSIGHT STUDY OR INVESTIGATION, TO PROVIDE FOR THE MANNER IN WHICH AN INVESTIGATING COMMITTEE MAY ACQUIRE EVIDENCE OR INFORMATION RELATED TO THE STUDY OR INVESTIGATION, TO PROVIDE FOR PROGRAM EVALUATION REPORTS, THE MANNER IN WHICH THEY ARE REQUESTED, AND THE CONTENTS OF THE REPORTS, TO PROVIDE THAT ALL TESTIMONY GIVEN TO AN INVESTIGATING COMMITTEE MUST BE GIVEN UNDER OATH, TO PROVIDE THAT WITNESSES TESTIFYING IN FRONT OF AN INVESTIGATING COMMITTEE MAY BE REPRESENTED BY COUNSEL, AND TO PROVIDE THAT WITNESSES ARE GIVEN THE BENEFIT OF ANY PRIVILEGE WHICH HE COULD HAVE CLAIMED IN COURT AS A PARTY TO A CIVIL ACTION; TO AMEND TITLE 11 OF CHAPTER 11 BY ADDING SECTION 11-11-85 TO REQUIRE THE GOVERNOR'S ANNUAL STATE BUDGET RECOMMENDATION AND THE REPORTS OF THE HOUSE COMMITTEE ON WAYS AND MEANS AND THE SENATE FINANCE COMMITTEE ON THE ANNUAL GENERAL APPROPRIATIONS ACT TO BE IN A PROGRAMMATIC FORMAT BY PROVIDING A NARRATIVE DESCRIPTION OF EACH SEPARATE PROGRAM ADMINISTERED BY A STATE AGENCY AND PROVIDING THE ELEMENTS THAT MUST BE INCLUDED IN THE NARRATIVE, TO REQUIRE THE BUDGET RECOMMENDATION FOR AN AGENCY TO INCLUDE AN OVERALL BUDGET RECOMMENDATION BY BUDGET CATEGORY AND A SIMILAR RECOMMENDATION FOR EACH SEPARATE PROGRAM ADMINISTERED BY THE AGENCY AND THE SPECIFIC SOURCE OF FUNDS APPROPRIATED FOR THE AGENCY; TO REPEAL CHAPTER 3 OF TITLE 11, RELATING TO THE COMPTROLLER GENERAL, TO TRANSFER TO THE STATE AUDITOR THE COMPTROLLER GENERAL'S POWERS AND DUTIES, TO AMEND SECTION 1-11-10, RELATING TO THE COMPOSITION OF THE BUDGET AND CONTROL BOARD, TO PROVIDE THAT THE ATTORNEY GENERAL SHALL REPLACE THE COMPTROLLER GENERAL ON THE BUDGET AND CONTROL BOARD, TO AMEND SECTIONS 11-5-130 AND 11-5-180, RELATING TO THE COMPTROLLER GENERAL, TO CONFORM THEM TO THE PROVISIONS PERTAINING TO THE TRANSFER OF DUTIES TO THE STATE AUDITOR FROM THE COMPTROLLER GENERAL; TO REPEAL CHAPTER 5 OF TITLE 1, RELATING TO THE SECRETARY OF STATE, TO AMEND SECTION 1-30-25, RELATING TO THE DEPARTMENT OF COMMERCE, BY TRANSFERRING CERTAIN POWERS, DUTIES, AND FUNCTIONS TO THE DEPARTMENT OF COMMERCE FROM THE SECRETARY OF STATE, TO AMEND CHAPTER 7 OF TITLE 1, RELATING TO THE ATTORNEY GENERAL, BY ADDING ARTICLE 9 TO TRANSFER CERTAIN POWERS, DUTIES, AND FUNCTIONS TO THE ATTORNEY GENERAL FROM THE SECRETARY OF STATE; TO AMEND CHAPTER 1 OF TITLE 5, RELATING TO INCORPORATION OF MUNICIPAL CORPORATIONS, CHAPTER 1 OF TITLE 26, RELATING NOTARIES PUBLIC, CHAPTER 56 OF TITLE 33, RELATING TO SOLICITATION OF CHARITABLE FUNDS, ARTICLE 11, CHAPTER 15 OF TITLE 39, RELATING TO TRADEMARKS AND SERVICE MARKS, ARTICLE 3, CHAPTER 12 OF TITLE 58, RELATING TO STATE-ISSUED FRANCHISE AUTHORITY FOR CABLE SERVICE PROVIDERS, SECTIONS 39-57-60, 39-57-55, 5-3-90, 5-3-280, 26-6-190, 15-9-245, 6-11-1620, 6-11-1630, 6-11-1640, 39-15-420, 39-15-430, 39-15-440, 39-15-450, AND 39-15-490, ALL RELATING TO VARIOUS POWERS AND DUTIES OF THE SECRETARY OF STATE TO CONFORM THEM TO THE PROVISIONS TRANSFERRING THOSE POWERS, DUTIES, AND FUNCTIONS TO THE DEPARTMENT OF COMMERCE AND THE ATTORNEY GENERAL, RESPECTIVELY; TO AMEND SECTION 46-3-30, RELATING TO THE QUALIFICATIONS FOR THE COMMISSIONER OF AGRICULTURE, TO PROVIDE THAT THE GOVERNOR APPOINTS THE COMMISSIONER WITH THE ADVICE AND CONSENT OF THE SENATE AND THAT THE COMMISSIONER MAY BE REMOVED FROM OFFICE BY THE GOVERNOR AS PROVIDED IN SECTION 1-3-240(C), TO REPEAL SECTION 46-3-40, RELATING TO THE ELECTION AND TERM OF THE COMMISSIONER OF AGRICULTURE, TO AMEND SECTION 1-3-240(C)(1), RELATING TO THE REMOVAL OF OFFICERS BY THE GOVERNOR, TO PROVIDE THAT THE GOVERNOR MAY REMOVE THE COMMISSIONER OF AGRICULTURE FROM OFFICE FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY; TO AMEND SECTION 1-3-240(C)(1), RELATING TO THE REMOVAL OF OFFICERS BY THE GOVERNOR, TO PROVIDE THAT THE STATE INSPECTOR GENERAL MAY BE REMOVED FROM OFFICE FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY, TO AMEND TITLE 1, RELATING TO GENERAL PROVISIONS FOR THE ADMINISTRATION OF THE GOVERNMENT, BY ADDING CHAPTER 6 TO CREATE THE OFFICE OF THE STATE INSPECTOR GENERAL, TO PROVIDE THAT THE STATE INSPECTOR GENERAL IS APPOINTED BY THE GOVERNOR WITH THE ADVICE AND CONSENT OF THE SENATE, TO AUTHORIZE THE STATE INSPECTOR GENERAL TO ADDRESS FRAUD, WASTE, ABUSE, AND WRONGDOING WITHIN THE SOUTH CAROLINA EXECUTIVE GOVERNMENT AGENCIES, AND TO PROVIDE THE POWERS, DUTIES, AND FUNCTIONS OF THE OFFICE; TO AMEND SECTION 1-30-10, RELATING TO THE AGENCIES OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT, BY ADDING THE DEPARTMENT OF ADMINISTRATION; BY ADDING SECTION 1-30-125 TO ESTABLISH THE DEPARTMENT OF ADMINISTRATION AS AN AGENCY OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT TO BE HEADED BY A DIRECTOR APPOINTED BY THE GOVERNOR UPON THE ADVICE AND CONSENT OF THE SENATE, AND TO TRANSFER TO THIS NEWLY CREATED DEPARTMENT CERTAIN OFFICES AND DIVISIONS OF THE STATE BUDGET AND CONTROL BOARD, OFFICE OF THE GOVERNOR, AND OTHER AGENCIES, AND TO PROVIDE FOR TRANSITIONAL AND OTHER PROVISIONS NECESSARY TO ACCOMPLISH THE ABOVE; BY ADDING ARTICLE 6 TO CHAPTER 3 OF TITLE 1 SO AS TO ESTABLISH THE DIVISION OF THE STATE CHIEF INFORMATION OFFICER WITHIN THE DEPARTMENT OF ADMINISTRATION TO BE HEADED BY THE STATE CHIEF INFORMATION OFFICER, TO PROVIDE THAT THE STATE CHIEF INFORMATION OFFICER SHALL BE APPOINTED BY THE GOVERNOR UPON THE ADVICE AND CONSENT OF THE SENATE, AND TO PROVIDE FOR THE POWERS, DUTIES, AND FUNCTIONS OF THE DIVISION; TO CREATE A JOINT INFORMATION TECHNOLOGY REVIEW COMMITTEE, AN INFORMATION TECHNOLOGY BUSINESS CASE REVIEW PANEL, AND AN INFORMATION TECHNOLOGY ARCHITECTURE OVERSIGHT PANEL AND TO PROVIDE FOR THE FUNCTIONS, POWERS, AND RESPONSIBILITIES OF THE COMMITTEE AND PANELS; TO AMEND SECTION 11-35-1580, AS AMENDED, RELATING TO INFORMATION TECHNOLOGY PROCUREMENTS, SO AS TO DELETE CERTAIN RESPONSIBILITIES OF THE INFORMATION TECHNOLOGY MANAGEMENT OFFICE; TO AMEND SECTIONS 1-10-10, 1-11-20, AS AMENDED, 1-11-22, 1-11-55, 1-11-56, 1-11-58, 1-11-65, 1-11-67, 1-11-70, 1-11-80, 1-11-90, 1-11-100, 1-11-110, 1-11-180, 1-11-220, 1-11-225, 1-11-250, 1-11-260, 1-11-270, 1-11-280, 1-11-290, 1-11-300, 1-11-310, 1-11-315, 1-11-320, 1-11-335, 1-11-340, 1-11-435, 2-13-240, CHAPTER 9 OF TITLE 3; 10-1-10, 10-1-30, AS AMENDED, 10-1-40, 10-1-130, 10-1-190, CHAPTER 9 OF TITLE 10, 10-11-50, AS AMENDED, 10-11-90, 10-11-110, 11-9-610, 11-9-620, 11-9-630, 11-35-3810, 11-35-3820, 11-35-3830, 11-35-3840, 13-7-30, 13-7-830, ALL AS AMENDED, 48-46-30, 48-46-40, AS AMENDED, 48-46-50, 48-46-60, 48-46-90, 48-52-410, 48-52-440, AS AMENDED, 48-52-460, 48-52-680, 44-53-530, AS AMENDED, AND 44-96-140; AND TO ADD SECTION 1-11-185, ALL RELATING TO VARIOUS AGENCY OR DEPARTMENT PROVISIONS SO AS TO CONFORM THEM TO THE ABOVE PROVISIONS PERTAINING TO THE NEW DEPARTMENT OF ADMINISTRATION OR TO SUPPLEMENT SUCH PROVISIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "Government Accountability Act of 2008".
SECTION 2. A. Section 8-27-10(4) of the 1976 Code is amended to read:
"(4) 'Report' means:
(a) a written document alleging a written or oral allegation of waste or wrongdoing that contains the following information:
(a i) the date of disclosure;
(b ii) the name of the employee making the report; and
(c iii) the nature of the wrongdoing and the date or range of dates on which the wrongdoing allegedly occurred. A report must be made within sixty days one hundred eighty days of the date the reporting employee first learns of the alleged wrongdoing.; or
(b) sworn testimony regarding wrongdoing, regardless of when the wrongdoing allegedly occurred, given to any standing committee, subcommittee of a standing committee, or study committee of the Senate or the House of Representatives."
B. Chapter 27 of Title 8 is amended by adding a new section to read:
"Section 8-27-60. Each public body must make a summary of this chapter available on the public body's Internet website. The summary must include an explanation of the process required to report wrongdoing, an explanation of what constitutes wrongdoing, and a description of the protections available to an employee who reports wrongdoing. If the public body does not maintain an Internet website, the public body must annually provide a written summary of this chapter to its employees and maintain copies of the summary at all times."
SECTION 3. Title 2 of the 1976 Code is amended by adding:
Section 2-2-10. As used in this chapter:
(1) "Agency" means an authority, board, branch, commission, committee, department, division, or other instrumentality of the executive department of state government, including administrative bodies. 'Agency' includes a body corporate and politic established as an instrumentality of the State. 'Agency' does not include:
(a) the legislative department of state government; or
(b) a political subdivision.
(2) "Investigating committee" means any standing committee or subcommittee of a standing committee exercising its authority to conduct a study or investigation of an agency within its jurisdiction.
(3) "Program evaluation report" means a report compiled by an agency at the request of an investigating committee that may include, but is not limited to, a review of agency management and organization, program delivery, agency goals and objectives, compliance with its statutory mandate, and fiscal accountability.
(4) "Request for information" means a list of questions that an investigating committee serves on a department or agency under investigation. The questions may relate to any matters concerning the department or agency's actions that are the subject of the investigation.
Section 2-2-20. (A) In order to determine whether laws and programs addressing subjects within the jurisdiction of a committee as provided in this chapter are being implemented and carried out in accordance with the intent of the General Assembly and whether they should be continued, curtailed, or eliminated, each standing committee shall review and study on a continuing basis:
(1) the application, administration, execution, and effectiveness of laws and programs addressing subjects within its jurisdiction;
(2) the organization and operation of state agencies and entities having responsibilities for the administration and execution of laws and programs addressing subjects within its jurisdiction; and
(3) any conditions or circumstances that may indicate the necessity or desirability of enacting new or additional legislation addressing subjects within its jurisdiction.
(B) Beginning January 1, 2008, each committee must conduct oversight studies and investigations at least once every four years on all agencies within the committee's jurisdiction.
Section 2-2-30. Jurisdiction for oversight studies or investigations is vested in the following committees:
(A) In the Senate:
(1) The Committee on Agriculture and Natural Resources has jurisdiction over the Department of Agriculture, the Department of Health and Environmental Control, the State Climatology Office, and the Sea Grant Consortium;
(2) The Committee on Banking and Insurance has jurisdiction over the Department of Insurance and the Board of Financial Institutions;
(3) The Committee on Corrections and Penology shares concurrent jurisdiction with the Committee on the Judiciary over the Department of Corrections, the Department of Juvenile Justice, the Department of Probation, Parole, and Pardon Services, and the Department of Public Safety.
(4) The Committee on Education has jurisdiction over the Department of Education, the School for the Deaf and the Blind, the State Board of Education, the Education Oversight Committee, the Governor's School for Science and Math, the Governor's School for Arts and Humanities, the Wil Lou Gray Opportunity School, the John de la Howe School, the State Library, the Lowcountry Graduate Center, the School Improvement Council, the State Board for Technical and Comprehensive Education, the Educational Television Network, and the Higher Education Tuition Grants Commission;
(5) The Committee on Finance has jurisdiction over the Office of the Treasurer, the Office of the Comptroller General, the Office of the State Auditor, the Department of Revenue, the Budget and Control Board, the State Accident Fund, the Education Lottery Commission, the State Housing Finance Development Authority, the Office of the Insurance Reserve Fund, the Materials Management Office, the Patient's Compensation Fund, the Medical Malpractice Patient's Compensation Fund, the Second Injury Fund, the Tourism Expenditure Review Committee, and the Tuition Prepayment Program;
(6) The Committee on Fish, Game, and Forestry has jurisdiction over the Department of Natural Resources, the Department of Parks, Recreation, and Tourism, and the Forestry Commission;
(7) The Committee on the Judiciary, in addition to the concurrent jurisdiction that it shares with the Committee on Corrections and Penology, has jurisdiction over the Judiciary, the Executive Office of the Governor, the Office of the Lieutenant Governor, the Office of the Attorney General, the Office of the Adjutant General, the Administrative Law Court, Santee Cooper, the Department of Archives and History, the Arts Commission, the Division of the Chief Information Officer, the Commission on Indigent Defense, the Commission on Prosecution Coordination, the Confederate Relic Room and Museum, the Criminal Justice Academy, the Election Commission, the Emergency Management Division, the State Ethics Commission, the Human Affairs Commission, the Information Technology Management Office, the State Law Enforcement Division, the Legislative Audit Council, the Office of Local Government, the Commission on Minority Affairs, the Military Department, Patriot's Point Naval and Maritime Museum, the Governor's Commission on Women, and the Worker's Compensation Commission;
(8) The Committee on Labor, Commerce, and Industry has jurisdiction over the Department of Commerce, the Department of Labor, Licensing, and Regulation and related boards and commissions except medical licensing and review boards, the Department of Consumer Affairs, the Employment Security Commission, the South Carolina Independent Living Council, the Fire Academy, the Office of the State Fire Marshall, the Economic Development Authority, the Public Service Commission, the Office of Regulatory Staff, the Public Service Commission, and the Rural Development Council;
(9) The Committee on Medical Affairs has jurisdiction over the Department of Alcohol and Other Drug Abuse Services, the Department of Disabilities and Special Needs, the Department of Health and Human Services, the Department of Mental Health, the Department of Social Services, medical licensing and review boards within the Department of Labor, Licensing, and Regulation, the Commission for the Blind, and the Vocational Rehabilitation Department; and
(10) The Committee on Transportation has jurisdiction over the Department of Transportation, the Department of Motor Vehicles, and the State Ports Authority; and
(B) In the House of Representatives:
(1) The Committee on Agriculture, Natural Resources, and Environmental Affairs has jurisdiction over the Department of Agriculture, the Department of Health and Environmental Control, the Department of Natural Resources, the Department of Parks, Recreation, and Tourism, the State Climatology Office, and the Forestry Commission;
(2) The Committee on Education and Public Works has jurisdiction over the Department of Education, the State Board of Education, the Department of Transportation, Department of Motor Vehicles, Santee Cooper, the State Ports Authority, the School for the Deaf and the Blind, the Education Oversight Committee, the Governor's School for Science and Math, the Governor's School for Arts and Humanities, the Wil Lou Gray Opportunity School, the John de la Howe School, the State Library, the Lowcountry Graduate Center, the School Improvement Council, the State Board for Technical and Comprehensive Education, the Educational Television Network, and the Higher Education Tuition Grants Commission
(3) The Committee on the Judiciary has jurisdiction over the Judiciary, the Executive Office of the Governor, the Office of the Lieutenant Governor, the Office of the Attorney General, the Office of the Adjutant General, the Administrative Law Court, the Department of Corrections, the Department of Juvenile Justice, the Department of Probation, Parole, and Pardon Services, Department of Public Safety, the Department of Archives and History, the Arts Commission, the Division of the Chief Information Officer, the Commission on Indigent Defense, the Commission on Prosecution Coordination, the Confederate Relic Room and Museum, the Criminal Justice Academy, the Election Commission, the Emergency Management Division, the State Ethics Commission, the Human Affairs Commission, the Information Technology Management Office, the State Law Enforcement Division, the Legislative Audit Council, the Office of Local Government, the Commission on Minority Affairs, the Military Department, Patriot's Point Naval and Maritime Museum, the Governor's Commission on Women, and the Worker's Compensation Commission;
(4) The Committee on Labor, Commerce, and Industry has jurisdiction over the Department of Commerce, the Department of Labor, Licensing, and Regulation and related boards and commissions except medical licensing and review boards, the Department of Consumer Affairs, the Employment Security Commission, the South Carolina Independent Living Council, the Fire Academy, the Office of the State Fire Marshall, the Economic Development Authority, the Public Service Commission, the Office of Regulatory Staff, the Public Service Commission, and the Rural Development Council;
(5) The Committee on Medical, Military, Public and Municipal Affairs has jurisdiction over the Department of Alcohol and Other Drug Abuse Services, the Department of Disabilities and Special Needs, the Department of Health and Human Services, the Department of Mental Health, the Department of Social Services, medical licensing and review boards within the Department of Labor, Licensing, and Regulation, the Commission for the Blind, and the Vocational Rehabilitation Department, the Office of the Adjutant General, and the Military Department.
(6) The Committee on Ways and Means has jurisdiction over the Office of the Treasurer, the Office of the Comptroller General, the Office of the State Auditor, the Department of Revenue, the Budget and Control Board, the State Accident Fund, the Education Lottery Commission, the State Housing Finance Development Authority, the Office of the Insurance Reserve Fund, the Materials Management Office, the Patient's Compensation Fund, the Medical Malpractice Patient's Compensation Fund, the Second Injury Fund, the Tourism Expenditure Review Committee, and the Tuition Prepayment Program.
Section 2-2-40. (A) A standing committee of the Senate or the House of Representatives may by majority vote initiate a study or an investigation of an agency within its jurisdiction. The motion calling for the study or investigation must state the subject matter and scope of the study or investigation. The study or investigation may not exceed the scope stated in the motion.
(B) An investigating committee may vest its investigative authority in a subcommittee. When a subcommittee is given the authority to conduct a study or investigation it has all of the power and authority of an investigating committee. A subcommittee leading a study or investigation of an agency must make a full report of its findings and recommendations to the full committee at the conclusion of its study or investigation. No subcommittee leading a study or investigation may consist of fewer than three members.
Section 2-2-50. When conducting a study or investigation, an investigating committee may acquire evidence or information by any lawful means, including, but not limited to:
(A) serve a request for information on the agency being studied or investigated. The request for information must be answered separately and fully in writing under oath and returned to the investigating committee within forty-five days after being served upon the department or agency. The time for answering a request for information may be extended for a period to be agreed upon by the committee and the agency for good cause shown. The head of the department or agency must sign the answers verifying them as true and correct. If any question contains a request for records, policies, audio or video recordings, or other documents, the questions is not deemed to have been answered unless a complete set of records, policies, audio or video recordings or other documents is included with the answer;
(B) depose witnesses upon oral examination. A deposition upon oral examination may be taken from any person that the committee has reason to believe has knowledge of the activities under investigation. The committee must provide the person being deposed and the agency under investigation with no less than ten days notice of the deposition. The notice to the agency shall state the time and place for taking the deposition and name and address of each person to be examined. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena must be attached to or included in the notice. The deposition must be taken under oath administered by the chairman of the investigating committee or his designee. The testimony must be taken stenographically or recorded by some other means and may be videotaped. A person may be compelled to attend a deposition in the county in which he resides or in Richland County.
(C) issue subpoenas and subpoenas duces tecum pursuant to Title 2, Chapter 69; and
(D) require the agency to prepare and submit to the investigating committee a program evaluation report by a date specified by the committee. The investigating committee must specify agency program or programs or agency operations that it is studying or investigating and the information to be contained in the program evaluation report.
Section 2-2-60. (A) An investigating committee's request for a program evaluation report must contain:
(1) the agency program or operations that it intends to investigate;
(2) the information that must be included in the report; and
(3) the date that the report must be submitted to the committee.
(B) An investigating committee may request that the program evaluation report contain any of the following information:
(1) enabling or authorizing law or other relevant mandate, including any federal mandates;
(2) a description of each program administered by the agency identified by the investigating committee in the request for a program evaluation report, including the following information:
(a) established priorities, including goals and objectives in meeting each priority;
(b) performance criteria, timetables, or other benchmarks used by the agency to measure its progress in achieving its goals and objectives;
(c) an assessment by the agency indicating the extent to which it has met the goals and objectives, using the performance criteria. When an agency has not met its goals and objectives, the agency shall identify the reasons for not meeting them and the corrective measures the agency has taken to meet them in the future;
(3) Organizational structure, including a position count, job classification, and organization flow chart indicating lines of responsibility;
(4) financial summary, including sources of funding by program and the amounts allocated or appropriated and expended over the last ten years;
(5) identification of areas where the agency has coordinated efforts with other state and federal agencies in achieving program objectives and other areas in which an agency could establish cooperative arrangements, including, but not limited to, cooperative arrangements to coordinate services and eliminate redundant requirements;
(6) identification of the constituencies served by the agency or program, noting any changes or projected changes in the constituencies;
(7) a summary of efforts by the agency or program regarding the use of alternative delivery systems, including privatization, in meeting its goals and objectives;
(8) identification of emerging issues for the agency;
(9) a comparison of any related federal laws and regulations to the state laws governing the agency or program and the rules implemented by the agency or program;
(10) agency policies for collecting, managing, and using personal information over the Internet and non-electronically, information on the agency's implementation of information technologies;
(11) a list of reports, applications, and other similar paperwork required to be filed with the agency by the public. The list must include:
(a) the statutory authority for each filing requirement;
(b) the date each filing requirement was adopted or last amended by the agency;
(c) the frequency that filing is required;
(d) the number of filings received annually for the last five years and the number of anticipated filings for the next five years;
(e) a description of the actions taken or contemplated by the agency to reduce filing requirements and paperwork duplication.
(12) any other relevant information specifically requested by the investigating committee.
(C) All information contained in a program evaluation report must be presented in a concise but complete manner.
(D) The chairman of the investigating committee may direct the Legislative Audit Council to perform a study of the program evaluation report and report its findings to the investigating committee. The chairman may also direct the Legislative Audit Council to perform its own audit of the program or operations being studied or investigated by the investigating committee.
Section 2-2-70. All testimony given to the investigating committee must be under oath.
Section 2-20-80. Any witness testifying before or deposed by the investigating committee may have counsel present to advise him. The witness or his counsel may, during the time of testimony or deposition, object to any question detrimental to the witness' interests and is entitled to have a ruling by the chairman on any objection. In making his ruling the chairman shall follow as closely as possible the procedures and rules of evidence observed by the circuit courts of this State.
Section 2-20-90. A witness shall be given the benefit of any privilege which he could have claimed in court as a party to a civil action."
SECTION 4. Article 1, Chapter 11, Title 11 of the 1976 Code is amended by adding:
"Section 11-11-85. The Governor's budget recommendation and the reports of the House Ways and Means Committee and the Senate Finance Committee on the annual general appropriations act must contain a narrative regarding each agency and each program administered by the agency. The narrative must include mission, goals, statutory and regulatory basis of each program, and a brief history of the agency's administration of the program. Proposed appropriations for each agency must reflect an overall agency budget comprised of budget categories, but also must include amounts for debt service attributable to the agency and aid to political subdivisions provided by the agency. Additionally, the recommendation must identify specifically the source of funds for appropriations to the agency. Each separate program administered by an agency must be included in the recommendation with that program's share of each of the amounts appropriated for each budget category and specific source of funds for the appropriations. The narratives must conform to a format established by the Office of State Budget for the State Budget and Control Board."
SECTION 5. A. Chapter 3, Title 11 of the 1976 Code relating to the Comptroller General is repealed.
B. Chapter 7, Title 11 of the 1976 Code is amended to read:
Section 11-7-10. The State Budget and Control Board shall select the State Auditor, who shall select employ necessary assistants in conformity with the appropriations for the office.
Section 11-7-20. (A) All State agencies and entities supported partially or entirely by public funds are subject to audit by or under the oversight of the State Auditor, except as otherwise specifically provided by law. The State Auditor, to the extent practicable and consistent with his overall responsibility, shall audit or cause to be audited each State agency and entity annually.
(B) Annually the State Auditor shall audit or cause to be audited the State's basic financial statements prepared by the Comptroller General of South Carolina.
(C) Annually the State Auditor shall audit or cause to be audited the compliance of the State of South Carolina with the U. S. Office of Management and Budget (OMB) Circular A-133 Compliance Supplement as applicable to major Federal programs.
(D) Audits must be conducted in accordance with auditing standards generally accepted in the United States of America; the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States; and OMB Circular A-133, Audits of States, Local Governments, and Nonprofit Organizations.
Section 11-7-25. To the extent practicable and consistent with his overall responsibility, the State Auditor periodically shall audit or cause to be audited the financial records of the county treasurers, municipal treasurers, county clerks of court, magistrates, and municipal courts to report if fines and assessments imposed pursuant to Sections 14-1-205 through 14-1-208 are collected properly and remitted to the State Treasurer. Upon the issuance of an audit report, the State Auditor immediately shall notify the State Treasurer, Division of Court Administration, and the chief administrator of the affected agency, department, county, or municipality.
Section 11-7-30. Reports of audit findings must be available to the Governor, Budget and Control Board, General Assembly, and the general public. The State Auditor shall notify the Governor, the General Assembly, and the Budget and Control Board immediately upon the issuance of an audit report.
Section 11-7-35. In order to carry out his duties, the State Auditor and his assistants or designees must have access to all records and facilities of every state agency during normal operating hours. The State Auditor and his assistants or designees shall have access to all relevant records and facilities of a private organization receiving appropriated state monies, relating to the management and expenditures of these state monies, during the organization's normal operating hours. In the performance of his official duties, the State Auditor and his assistants or designees are subject to the statutory provisions and penalties regarding the confidentiality of records of the agency or organization under review. All audit working papers and memoranda of the State Auditor, except final audit reports, are confidential and not subject to public disclosure.
Section 11-7-40. The State Auditor shall bill the South Carolina Department of Health and Human Services monthly for fifty percent of the costs incurred by the State Auditor in conducting the medical assistance audit. The amount billed by the State Auditor must include those appropriated salary adjustments and employer contributions allowable under the Medicaid program. The Department of Health and Human Services shall remit the amount billed to the credit of the general fund of the State.
Section 11-7-45. As required by professional auditing standards, the State Auditor shall maintain independence in the performance of his authorized duties. Neither the Governor nor an agency or entity of the executive or judicial branches of State government has the authority to limit the scope, direction, or report content of an audit undertaken by the State Auditor.
Section 11-7-50. (A) To preserve the independence and objectivity of the audit function, the State Auditor or his employees may not serve in any capacity on an administrative board, commission, or other organization that they have the responsibility or authority to audit, and they may not have a material, direct or indirect, financial or other economic interest in the transactions of a State agency.
(B) The State Auditor or a member of his staff may not conduct an audit of a program, activity, or agency for which he had management responsibility or by which he has been employed during the last two years.
Section 11-7-55. The State Auditor may obtain the services of independent public accountants as he considers necessary to carry out his duties and responsibilities. The State Auditor may use funds appropriated for personal services to contract with private firms, using a request for proposals, to perform audits.
Section 11-7-60. Each State agency shall remit to the State Auditor an amount representing an equitable portion of the expense of contracting with a certified public accounting firm to conduct a portion of the audit of the State's Comprehensive Annual Financial Report prepared by the Comptroller General's Office. Each state agency's equitable portion of the expense must be determined by a schedule developed by the State Auditor. The remittance must be based upon invoices provided by the State Auditor upon completion of the annual audit. The audit must be rebid using a request for proposals no less frequently than every five years.
Section 11-7-70. The State Auditor shall keep a book in which all appropriations by the General Assembly shall be entered, with all payments made under them; he shall also keep another book, properly indexed, in which he shall enter all contingent accounts allowed by the General Assembly and the time at which payment on such accounts shall be made.
Section 11-7-80. The State Auditor shall annually report to the Treasurer the names of the pensioners of the State and his transactions in regard to unappropriated funds in the State Treasury. After reviewing the report, the Treasurer must transmit the report to the General Assembly.
Section 11-7-90. The State Auditor shall, between the first and tenth day of each month, examine the vouchers in the office of the State Treasurer for all payments made by the Treasurer during the preceding month.
Section 11-7-100. The State Auditor is authorized to honor vouchers in the current fiscal year for advance payment of airfares and registration fees for official travel to meetings and conferences in July and August of the next fiscal year if the advance payment results in a savings and funds are available in the requesting agency's current budget.
Section 11-7-110. All payments by the State Treasurer, except for interest on the public debt and the pay of officers, members and attaches of the General Assembly, shall be made on warrants drawn by the State Auditor, and the vouchers for the same must be filed in his office.
Section 11-7-120. Notwithstanding any other provisions of law to the contrary, the State Auditor, after the installation of an electronic data processing system to serve the offices of State Auditor and State Treasurer, shall present warrants for the payment of each State obligation directly to the State Treasurer, who shall then make payment of the obligation by check. The check form used by the State Treasurer for the payment of such obligation shall be so designated to indicate that payment is made upon authorization of a warrant of the State Auditor.
Section 11-7-130. All warrants issued by the State Auditor for the payment of claims, if not presented for payment within two years from the date thereof, shall be written off of the books of the State Auditor. However, any warrant may be reissued upon satisfactory proof of nonpayment and loss.
Section 11-7-140. In case any warrant issued by the State Auditor shall be lost and fails to reach the person to whom it has been mailed, the State Auditor shall, upon satisfactory proof to him of the fact of such loss and upon receiving a bond in an amount double the sum for which the warrant was drawn, issue to such person a duplicate warrant for the sum for which the original warrant was drawn. The duplicate warrant shall state upon its face that it is a duplicate and payable only in case the original warrant is unpaid. Such duplicate warrant, duly endorsed, shall be sufficient for payment by the State Treasurer.
Section 11-7-150. After the approval of the annual appropriation act by the Governor, moneys may be obtained from the State Treasury only by drawing vouchers upon the State Auditor. All vouchers, except for appropriated salaries, shall be accompanied by a classified and itemized statement of expenditures showing in each case the name of the payee and a list of articles purchased or services rendered, together with a certified statement that such articles or services were purchased or rendered exclusively for the purpose or activity for which the appropriation was made. These statements of expenditures shall be prepared on printed forms prescribed by the State Auditor and they shall be prepared in duplicate, the copy to be retained for the purpose of assisting in the annual audit and as a permanent office record.
Section 11-7-160. The State Auditor shall implement appropriate accounting procedures to consolidate accounts, in connection with lump sum agencies, as necessary for proper accounting and for facilitation of financial reporting in accordance with generally accepted accounting principles.
Section 11-7-170. The expenditure of money appropriated by the General Assembly is by warrant requisitions directed to the State Auditor. Upon receipt of the requisition, accompanied by invoices or other satisfactory evidence of the propriety of the payment, and itemized according to standard budget classifications, the State Auditor shall issue a warrant on the State Treasurer to the payee designated in the requisition. Requisitions for warrants may not be processed for amounts less than one dollar. Upon approval and designation by the State Budget and Control Board, state institutions may requisition funds in favor of their own treasurer, itemized only to the extent of the purpose of the appropriation as expressed in the act or joint resolution appropriating the funds, and may deposit these funds in the name of the institution in the bank or banking institutions designated by the State Treasurer, and disburse these funds by check in order to meet the purposes of the appropriation. Strict account must be kept of all these expenditures according to standard budget classifications. Money may be drawn only when actually owing and due. The State Auditor shall establish rules and regulations for the uniform reimbursement, remittance, and transfers of funds to the general fund of the State as required by law.
Section 11-7-180. The State Auditor shall enter in books, kept for that purpose, such statements of the accounts of persons having the distribution of public money, directed by law to be rendered to him, as will enable him, at any time, to show how such accounts stand between the parties, respectively.
Section 11-7-190. Professional and Occupational Licensing Agencies (POLA'S) as specified in Section 11-5-210 may establish special State Auditor accounts for crediting testing fees received in excess of amounts appropriated to these agencies for test expenses. Funds credited to these accounts may be used only to pay test expenses. Any account balance at the close of the fiscal year must be remitted to the general fund of the State. These accounts must be designated "earmarked other fund accounts" and funds credited to these accounts must be expended according to the JARC process. These accounts may not be used to defer revenue.
Section 11-7-200. Of the amount appropriated in the annual general appropriations act for and to counties for the expense of printing tax forms and supplies, four cents per capita, based on the official United States Census for 1990, must be remitted by the State Auditor to the several counties of the State and must be applied by the counties only for the expense of printing tax forms and supplies for county auditors, treasurers, and tax collectors. Payment must be made to each county treasurer in one annual payment which must be made as soon after the beginning of the fiscal year as practical."
C. Section 11-5-130 of the 1976 Code is amended to read:
"Section 11-5-130. The appropriation made for a State institution shall be paid to the treasurer of the institution, who shall be a bonded officer. The bond shall be approved by the Attorney General as to its form and execution and by the Governor as to its sufficiency and shall be filed with the State Treasurer. The treasurer of the institution shall draw his receipt warrant upon the Comptroller General State Auditor for the amount as needed. Such receipt warrant shall be countersigned by the president or superintendent of the institution and have attached thereto an itemized sworn statement showing the purposes in detail for which the money to be drawn is to be used. All money shall be drawn only when actually owing and due.
Upon the receipt by the Comptroller General State Auditor of the receipt warrant, signed and countersigned and with the statement attached as above provided, the Comptroller General State Auditor shall issue his warrant on the State Treasurer in favor of the treasurer of the institution for the amount drawn, and the State Treasurer shall pay the warrant, the amount thereof to be charged to the appropriation account of such institution by the Comptroller General State Auditor and the State Treasurer."
D. Section 11-5-170 of the 1976 Code is amended to read:
"Section 11-5-170. The State Treasurer shall, at the close of business on each day, send to the Comptroller General State Auditor a report of all moneys paid out by him, to whom paid and on what account, except that paid upon warrants of the Comptroller General State Auditor."
E. Section 11-5-180 of the 1976 Code is amended to read:
"Section 11-5-180. The State Treasurer shall, at the end of every month, report to the Comptroller General State Auditor an accurate statement of the cash transactions of the Treasury, of every description, stating therein every sum of money received or paid away in behalf of the State, particularizing the person and his office of whom received and to whom paid, as also on what account received and for what purpose paid.
He shall, at all times, when required by the Comptroller General State Auditor, produce to him satisfactory statements of the cash in hand and furnish him promptly with the official information, duly certified, relative to any matter connected with the revenue and finance of the State."
F. Section 1-11-10 of the 1976 Code is amended to read:
"Section 1-11-10. The State Budget and Control Board shall be comprised of the Governor, ex officio, who shall be chairman, the State Treasurer, ex officio, the Comptroller General Attorney General, ex officio, and the chairman of the Senate Finance Committee, ex officio, and the chairman of the Ways and Means Committee of the House of Representatives, ex officio."
G. This SECTION takes effect upon approval by the Governor and upon ratification of an amendment to Section 7, Article VI of the Constitution of this State to remove the Comptroller General from the list of state officers that the Constitution requires to be elected as proposed to the qualified electors of this state at the 2008 General Election. One hundred eighty days after the effective date of this SECTION, the office of Comptroller General is abolished and the powers, duties, and functions of the office are devolved upon the State Auditor as herein provided.
SECTION 6. A. Chapter 5, Title 1 of the 1976 Code, relating to the Secretary of State, is repealed.
B. Section 1-30-25 of the 1976 Code is amended to read:
Section 1-30-25. (A) Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Commerce to be initially divided into divisions for Aeronautics, Advisory Coordinating Council for Economic Development, State Development, Public Railways, and Savannah Valley Development:
(A)(1) South Carolina Aeronautics Commission, formerly provided for at Section 55-5-10, et seq.;
(B)(2)Coordinating Council for Economic Development, formerly provided for at Section 41-45-30, et seq.;
(C)(3) Savannah Valley Authority, formerly provided for at Section 13-9-10, et seq.;
(D)(4) Department of Commerce, including the South Carolina Film Commission, except that the department must make reasonable rules and promulgate reasonable regulations to ensure that funds made available to film projects through its film commission are budgeted and spent so as to further the following objectives:
(1)(a) stimulation of economic activity to develop the potentialities of the State;
(2)(b) conservation, restoration, and development of the natural and physical, the human and social, and the economic and productive resources of the State;
(3)(c) promotion of a system of transportation for the State, through development and expansion of the highway, railroad, port, waterway, and airport systems;
(4)(d) promotion and correlation of state and local activity in planning public works projects;
(5)(e) promotion of public interest in the development of the State through cooperation with public agencies, private enterprises, and charitable and social institutions;
(6)(f) encouragement of industrial development, private business, commercial enterprise, agricultural production, transportation, and the utilization and investment of capital within the State;
(7)(g) assistance in the development of existing state and interstate trade, commerce, and markets for South Carolina goods and in the removal of barriers to the industrial, commercial, and agricultural development of the State;
(8)(h) assistance in ensuring stability in employment, increasing the opportunities for employment of the citizens of the State, devising ways and means to raise the living standards of the people of the State;
(9)(i) enhancement of the general welfare of the people; and
(10)(j) encouragement and consideration as appropriate so as to consider race, gender, and other demographic factors to ensure nondiscrimination, inclusion, and representation of all segments of the State to the greatest extent possible.
(E)(5) South Carolina Public Railways Commission, formerly provided for at Section 58-19-10, et seq.
(B) Effective on January 1, 2009, the following functions of the Secretary of State, formerly provided for in Chapter 5, Title 1 as well as the employees, funds, property, and all contractual rights and obligations associated with these functions, are transferred to and incorporated in and shall be administered as part of the Department of Commerce:
(1) statewide registration of corporations and other business entities;
(2) Uniform Commercial Code registrations and filings;
(3) registration of business opportunity sellers as provided for in Chapter 57, Title 39;
(4) licensing employment agencies; and
(5) serve as the central franchising authority to grant a franchise for cable services, as defined in 47 U.S.C. Section 522(6).
C. Chapter 7, Title 1 of the 1976 Code is amended by adding:
Section 1-7-2000. Effective on January 1, 2009, the following functions of the Secretary of State, formerly provided for in Chapter 5, Title 1 as well as the employees, funds, property, and all contractual rights and obligations associated with these functions, are transferred to and incorporated in and shall be administered by the Attorney General:
(1) incorporation of municipalities and special purpose districts;
(2) annexations of land;
(3) escheatment of real property to the State;
(4) certification of Notaries Public and Apostilles;
(5) registration of charities and fundraisers;
(6) agent of service of process on foreign corporations not authorized to do business in the State;
(7) registration of trademarks; and
(8) consumer protection.
Section 1-7-2010. (A) The office of Attorney General is designated as the state office whose responsibility it is to monitor positions on the state boards and commissions specified in this subsection and any elected or appointed state boards and commissions established after the effective date of this section. The dates of the terms of office for appointments to boards and commissions made with the advice and consent of the Senate are the dates as certified to the Attorney General by the Senate. The dates of the terms of office for all other elected or appointed boards and commissions are the dates certified to the Attorney General by the Governor for his direct appointments and the dates for the terms of office for members of boards and commissions elected by the General Assembly shall be the dates as certified to the Attorney General by the clerks of the two houses. The specified boards and commissions referred to in this subsection are:
(1) Accountancy, Board of
(2) Aging, Division on Advisory Council
(3) Agriculture Commission
(4) Architectural Examiners, State Board of
(5) Arts Commission
(6) Athletic Commission
(7) Auctioneer's Commission
(8) Accessibility Committee for the Building Codes Council
(9) Blind, Commission for the
(10) Builders Commission, Residential
(11) Building Code Council
(12) College of Charleston Board of Trustees
(13) Children's Trust Fund Board of Trustees
(14) Children, Foster Care Review Board
(15) Chiropractic Examiners, State Board of
(16) The Citadel Board of Visitors
(17) Clemson University Board of Trustees
(18) Coastal Carolina University Board of Trustees
(19) Consumer Affairs, Commission on
(20) Contractors' Licensing Board
(21) Cosmetology, State Board of
(22) Professional Counselors, Associate Counselors and Marital and Family Therapists, State Board of Examiners
(23) Deaf and Blind, School for the
(24) Dentistry Board
(25) Disabilities and Special Needs Commission
(26) Education, State Board of
(27) Education Board, Southern Regional
(28) Education Council
(29) Educational Television Commission
(30) Election Commission
(31) Employment Security Commission
(32) Registration for Professional Engineers and Land Surveyors
(33) Environmental Certification Board
(34) Ethics Commission
(35) Financial Institutions, Board of
(36) Fisheries Commission, Atlantic States Marine
(37) Office of General Services, State Fleet Management
(38) Forestry Commission
(39) Francis Marion University Board of Trustees
(40) Funeral Service Board
(41) Geologists, Board of Registration for
(42) Governor's Mansion and Lace House Commission
(43) DHEC
(a) Board of Health and Environmental Control
(b) Office of Ocean and Coastal Resource Management Board
(44) Higher Education Commission
(45) Holocaust, Council on the
(46) Housing, Finance and Development Authority
(47) Human Affairs Commission
(48) Indigent Defense, Commission on
(49) Intergovernmental Relations, Advisory Commission on
(50) Jobs and Economic Development Authority
(51) John de la Howe School
(52) Judicial Merit Selection Commission
(53) Juvenile Justice, Dept. of, Board of Juvenile Parole
(54) Lander University Board of Trustees
(55) Law Examiners Board
(56) Legislative Audit Council
(57) Library Board
(58) Liquefied Petroleum Gas Board
(59) Long Term Health Care Administrators, Board of
(60) Manufactured Housing Board
(61) Maternal, Infant and Child Health, Council on
(62) Medical Examiners, Board of
(63) Medical University of South Carolina Board of Trustees
(64) Mental Health, State Department of, Commission
(65) Migrant Farm Workers Commission
(66) Mining Council
(67) Minority Affairs, Commission for
(68) Museum Commission
(69) Natural Resources, Department of
(a) Natural Resources Board
(b) Heritage Trust Advisory Board
(70) Nuclear Advisory Council
(71) Nursing, Board of
(72) Occupational Health and Safety Review Board
(73) Occupational Therapy, Board of
(74) Old Exchange Building Commission
(75) Opportunity School, Wil Lou Gray Board of Trustees
(76) Opticianry, Board of Examiners in
(77) Optometry, Board of Examiners in
(78) Patriots Point Development Authority
(79) Pharmacy, Board of
(80) Physical Therapy Examiners, State Board of
(81) Podiatry Examiners, Board of
(82) Ports Authority Board
(83) Prisoner of War Commission
(84) Probation, Parole and Pardon Services, Board of
(85) Prosecution Coordination, Commission on
(86) Psychology, Board of Examiners in
(87) Public Service Authority, Board of Directors
(88) Public Service Commission
(89) Pyrotechnic Safety, Board of
(90) Radiation Control Technical Advisory Council
(91) Real Estate Commission
(92) Real Estate Appraisers Board
(93) Reorganization Commission
(94) Salary, Executive and Performance Evaluation Commission
(95) Social Work Examiners, Board of
(96) South Carolina State University Board of Trustees
(97) Speech-Language Pathology and Audiology, Board of Examiners
(98) Tax Board of Review
(99) Technical and Comprehensive Education, Board for
(100) Transportation Department Commission
(101) University of South Carolina Board of Trustees
(102) Veterinary Medical Examiners, Board of
(103) Vocational Rehabilitation, Board of
(104) Winthrop University Board of Trustees
(105) Women, Governor's Office, Commission on
(106) Workers' Compensation Commission
(B) The Attorney General must keep in a public record available for inspection an up-to-date compilation of the membership of the boards and commissions listed in subsection (A) and information about the memberships received from state boards and commissions pursuant to Section 1-1-1310 so that members of the General Assembly and interested citizens may be informed of the current composition of these boards and commissions. This compilation must include:
(1) length of term for each office;
(2) the month and year in which terms have expired or will expire;
(3) terms which have expired;
(4) vacancies;
(5) the body or authority which elects or appoints, as appropriate;
(6) any qualifications including, but not limited to, residency requirements or limitations required for a particular vacancy; and
(7) any additional information received from state boards or commissions as required by Section 1-1-1310.
(C) The Attorney General must publicize vacancies, expired terms, and those terms expiring within one year on a semiannual basis statewide.
D. Sections 39-57-50 and 39-57-55 of the 1976 Code are amended to read:
"Section 39-57-50. (A) The seller of every business opportunity shall file with the Secretary of State Department of Commerce a copy of the disclosure statement required by Section 39-57-30 before placing an advertisement or making other representations to prospective purchasers in this State and shall update this filing as a material change in the required information occurs, but no less than biennially. If the seller is required by Section 39-57-40 to provide a bond or establish a trust account, he contemporaneously shall file with the Secretary of State department a copy of the bond or a copy of the formal notification by the depository that the trust account is established. The Secretary of State department shall charge a nonrefundable-filing fee of one hundred dollars for processing and maintaining the information filed by the seller.
(B) The Secretary of State Department of Commerce shall maintain a record of all sellers registering under this chapter and shall assign a registration number to each. The seller must be advised in writing of the assigned registration number, and advertisements, pamphlets, or brochures used in the promotion of the business opportunity by the seller must include the assigned registration number in the following manner: "S.S. D.C. Reg. No. __________."
(C) A person who fails to file is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. Each day a person fails to file constitutes a separate offense.
(D) A seller's registration issued by the Secretary of State shall remain valid under the terms and conditions of this chapter.
Section 39-57-55. (A) Licenses required by Chapter 57 of Title 39 to be registered biennially must be assigned registration periods as provided in this section.
(1) Upon the first reregistration of the licenses by the South Carolina Secretary of State's Office Department of Commerce after the effective date of biennial licensure, a biennial registration period must be implemented as follows:
(a) Licensees whose license numbers end in:
(i) an even number and expire between July 1, 1992, and December 31, 1992, shall obtain a biennial registration;
(ii) an even number and expire between January 1, 1993, and June 30, 1993, shall reregister their licenses for one year. At the end of that time they shall reregister their license for two years and biennially after that time;
(iii) an odd number and expire between July 1, 1992, and December 31, 1992, shall register their licenses for one year. At the end of that time they shall register their license for two years and biennially after that time;
(iv) an odd number and expire between January 1, 1993, and June 30, 1993, shall obtain a biennial registration;
(v) "A" through "L" and expire between July 1, 1992, and June 30, 1993, shall obtain a biennial registration;
(vi) "M" through "Z" and expire between July 1, 1992, and June 30, 1993, shall obtain a one-year registration and obtain a biennial registration after that time.
(b) Licenses issued in South Carolina for the first time between:
(i) July 1, 1992, and December 31, 1992, which end in an even number must be issued for a biennial registration period;
(ii) between July 1, 1992, and December 31, 1992, which end in an odd number must be issued for one year. At the end of that time the license must be renewed for two years and biennially after that time;
(iii) January 1, 1993, and June 30, 1993, which end in an even number must be issued for one year. At the end of that time the license must be renewed for two years and biennially after that time;
(iv) January 1, 1993, and June 30, 1993, which end in an odd number must be issued biennially;
(v) July 1, 1992, and June 30, 1993, and issued license numbers which end in "A" through "L" must be issued biennially;
(vi) between July 1, 1992, and June 30, 1993, and which end in "M" through "Z" must be issued for one year and renewed biennially after that time.
(2) Registrations are valid until the last day of the month in which the registration expires. The license fees charged during the conversion process must be prorated for the length of the license issued.
(B) After June 30, 1993, licensees must be registered and licensed for twenty-four consecutive months, and the registrations expire on the last day of the twenty-fourth month. The registration and licensing of every licensee must be renewed biennially upon application by the holder and by payment of fees required by law to take effect on the first day of the month following the expiration of the registration and licensing to be renewed. This section does not prevent the Secretary of State's Office department from refusing to issue a license."
E. Article 3, Chapter 12 of Title 58 of the 1976 Code is amended to read:
Section 58-12-300. As used in this article, the following terms mean:
(1) "Cable service" is defined as set forth in 47 U.S.C. Section 522(6).
(2) "Cable service provider" means a person or entity who is a cable operator, as defined in 47 U.S.C. Section 522(5), throughout the area it serves pursuant to Section 58-12-310, and is subject to Section 58-12-350.
(3) "Cable system" is defined as set forth in 47 U.S.C. Section 522(7).
(4) "Franchise" means an initial authorization, or renewal of an authorization, issued by a franchising authority regardless of whether the authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, that authorizes the construction and operation of a cable services network in the public rights-of-way.
(5) "Franchising authority" means a governmental entity empowered by federal, state, or local law to grant a franchise for cable services. With regard to the holder of a state-issued certificate of franchise authority within the areas covered by the certificate, the Secretary of State Department of Commerce is the sole franchising authority.
(6) "Gross revenues" means all revenues received from subscribers for the provision of cable services, including cable franchise fees, and all revenues received from non-subscribers for advertising and home shopping services. Gross revenues shall not include:
(a) any tax, surcharge, or governmental fee billed to subscribers including, but not limited to, a business license tax levied by a municipality pursuant to Article 20, Chapter 9, Title 58;
(b) any revenue not actually received, even if billed, such as bad debt;
(c) any revenue received by any affiliate or any other person in exchange for supplying goods or services used by the provider to provide video programming;
(d) refunds, rebates, or discounts;
(e) returned check fees or interest;
(f) sales or rental of property, except such property as the subscriber is required to buy or rent exclusively from the cable service provider to receive cable service;
(g) any revenue received for installing or maintaining inside wiring for services other than cable services;
(h) any revenues from services provided over the network that are associated with or classified as noncable services under federal law, including, without limitation, revenues received from telecommunications services, information services, Internet access services, directory or Internet advertising revenue (including, without limitation, yellow pages, white pages, banner advertisements, and electronic publishing advertising). Where the sale of any such noncable service is bundled with the sale of any cable service or services and sold for a single nonitemized price, the term "gross revenues" shall include only those revenues that are attributable to cable services based on the provider's books and records, such revenues to be allocated in a manner consistent with Generally Accepted Accounting Principles;
(i) sales for resale with respect to which the purchaser is required to pay a franchise fee; or
(j) any reimbursement of costs including, but not limited to, the reimbursements by programmers of marketing costs incurred for the promotion or introduction of video programming.
(7) "Incumbent cable service provider" means the cable service provider serving the largest number of subscribers in a particular municipality or in the unincorporated area of a county on the effective date of this article.
(8) "Public right-of-way" means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, or waterway.
(9) "Video programming" means programming provided by, or generally considered comparable to, programming provided by a television broadcast station, as set forth in 47 U.S.C. Section 522(20).
Section 58-12-310. (A) Except as provided in Section 58-12-325, a person or entity providing cable service in this State on the effective date of this article under a franchise previously granted by the governing body of a municipality or county is not subject to nor may it avail itself of the state-issued certificate of franchise authority provisions of this article with respect to the municipality or county until the franchise expires. Notwithstanding the foregoing, any such cable service provider may seek authorization to provide service in areas where it currently does not have an existing franchise agreement pursuant to provisions of this article.
(B) Subject to the provisions of subsection (A), a person or entity seeking to provide cable service over a cable system as a cable service provider in this State after the effective date of this article must file an application for a state-issued certificate of franchise authority with the Secretary of State Department of Commerce as required by this section. The application must be on a form to be established by the Secretary of State department and must be accompanied by a fee, not to exceed one hundred ten dollars, to be established by the Secretary of State department. If the person or entity is not authorized by other provisions of law to construct, maintain, or operate any type of facilities in the public rights-of-way, the person or entity shall file such an application before constructing, maintaining, or operating any facilities in the public rights-of-way. If the person or entity is authorized by other provisions of law to construct, maintain, or operate any type of facilities in the public rights-of-way, the person or entity shall file the application before providing cable service over a cable system in any given service area. Such application must be accompanied by an affidavit submitted by the applicant and signed by an officer or general partner of the applicant affirming the following:
(1) that the applicant agrees to comply with all applicable federal and state laws and regulations;
(2) a written description of the municipalities and a written description of the unincorporated areas of counties to be served, in whole or in part, by the applicant, which written description must be amended by the applicant before the provision of cable service within an area not described in a previous application or amendment filed by the applicant. For purposes of this subsection, a map or other graphic representation may supplement, but not substitute for, the written description; and
(3) the location of the principal place of business and the names of the principal executive officers of the applicant.
A holder of a state-issued certificate of franchise authority who seeks to amend the certificate to include additional areas to be served shall file an amended application with the Secretary of State department that reflects the new service areas to be served.
Provided, however, a holder of a state-issued certificate of franchise authority must begin to deploy service in each of the municipalities and in each of the unincorporated areas of counties described in subsection (B)(2) within one year of the date of the issuance of the certificate or the certificate becomes null and void. This provision shall not be construed to require deployment of service throughout the municipalities or the unincorporated areas of the counties described in subsection (B)(2).
(C) Within five days of receipt of an application or amended application, the Secretary of State department must notify each affected municipality and county of its receipt of the application or amended application and must request from each affected municipality and county: (1) the franchise fee rate imposed on the incumbent cable service provider, if any, as of the date of the application or amended application; (2) the number of public, educational, and governmental (PEG) access channels the municipality or county has activated under the incumbent cable provider's franchise agreement as of the date of the application or amended application; and (3) whether the municipality or county consents to the state-issued certificate of franchise authority sought in the application or amended application and, if such consent is denied, an explanation of the reasons for the denial of the requested consent. The notification must contain a copy of the application of the cable service provider including the description of the area to be served.
(D) A municipality or county must respond to a request issued by the Secretary of State department pursuant to subsection (C) within sixty-five days of the date of such request. If a municipality or county does not timely respond with the franchise fee rate imposed on the incumbent cable service provider, if any, as of the date of the application or amended application, the franchise fee rate for the applicant in such municipality or county shall be two percent of gross revenue until the county or municipality provides a response and the Secretary of State department issues an amended certificate of franchise authority containing a franchise fee in compliance with Section 58-12-330. If a municipality or county does not timely respond with the number of PEG access channels the municipality or county has activated under the incumbent cable provider's franchise agreement as of the date of the application or amended application or with a statement that it has not activated any PEG access channels under the incumbent cable provider's franchise agreement as of such date, the applicant shall not be required to provide any PEG access channels to the municipality or county until the municipality or county provides a response and the Secretary of State issues an amended certificate of franchise authority containing the number of PEG access channels to be provided to the municipality or county in compliance with Section 58-12-370. If a municipality or county denies consent or does not timely indicate its unconditional consent to the state-issued certificate of franchise authority sought in the application or amended application, the Secretary of State department shall deny the application or amended application with regard to that municipality or county and shall note on the notice of denial that the reason for the denial was the refusal of the applicable municipality or county to grant consent. If the applicant takes the position that the denial of the application or amended application is actionable, it may seek any appropriate relief under state or federal law in state or federal court, and if the applicant takes the position that the denial of consent by the municipality or county is actionable, it may add the municipality or county denying consent as a party to such action. If the Secretary of State department denies the application or amended application under the provisions of this subsection and the affected municipality or county subsequently indicates its unconditional consent to the state-issued certificate of franchise authority sought in the application or amended application, the Secretary of State department must promptly issue an amended certificate of franchise authority that includes such municipality or county.
(E) Within eighty days after making the request described in subsection (C), the Secretary of State department shall issue the applicant a certificate of franchise authority to operate as a cable service provider and the certificate shall contain the following:
(1) a nonexclusive grant of authority to provide cable service in the areas set forth in the application;
(2) a nonexclusive grant of authority to construct, maintain, and operate facilities along, across, or on public rights-of-way in the delivery of that service, subject to the laws of this State including the lawful exercise of police powers of the municipalities and counties in which the service is delivered;
(3) the franchise fee rate for each municipality or county described in the application in compliance with Section 58-12-330; and
(4) the number of public, education, and governmental access channels to be provided upon request to each municipality or county described in the application, in compliance with Section 58-12-370.
(F) The certificate of franchise authority issued by the Secretary of State department is fully transferable to a successor in interest to the applicant to which it is initially granted, provided that the successor in interest files with the Secretary of State department an affidavit that complies with the requirements of subsection (B). A notice of transfer must be filed with the Secretary of State department and the affected municipalities or counties within ten days of the completion of the transfer. The Secretary of State department is neither required nor authorized to act upon the notice.
(G) A holder of a state-issued certificate of franchise authority shall comply with any applicable federal law or regulation addressing a-la-carte programming options.
(H) The certificate of state franchise authority issued pursuant to this article may be terminated by the cable service provider by submitting written notice of the termination to the Secretary of State department and the affected municipalities or counties. The Secretary of State department is neither required nor authorized to act upon such notice.
(I) The state-issued certificate of franchise authority issued pursuant to this article supersedes and is in lieu of any franchise authority or approval required by Sections 58-12-10 and 58-12-30.
(J) The Secretary of State department shall keep for public examination a record of all certificates applied for or granted pursuant to the provisions of this article.
(K) The holder of a state-issued certificate of franchise authority shall give written notification to a municipality or county of the date on which it will actually begin providing service in any part of such municipality or county.
Section 58-12-320. (A) For purposes of this article, a cable service provider is deemed to have or have had a franchise to provide cable service in a specific municipality or unincorporated areas of a county if any predecessor entity of the cable service provider has or, after July 1, 2005, had a cable franchise agreement granted by that specific municipality or county.
(B) The terms "predecessor" or "successor entity" in this section shall include, but not be limited to, an entity receiving, obtaining, or operating under a municipal or county cable franchise through merger, sale, assignment, restructuring, or any other type of transaction.
Section 58-12-325. At the time any certificate of franchise authority is issued by the Secretary of State department, the Secretary of State department immediately shall post information relating to the certificate, specifically including all municipalities and counties described pursuant to Section 58-12-310(B)(2). At any time on or after the date when the holder of a state-issued certificate of franchise authority gives notice, as required by Section 58-12-310(K), that it is beginning to offer service in a given municipality or county, any cable service provider serving such municipality or county shall have the option to terminate existing franchises previously issued by such municipality or county and instead offer cable service in such municipality or county under a certificate of franchise authority that the Secretary of State department shall issue in accordance with the requirements of Section 58-12-310. A cable service provider exercising its termination option shall file a statement of termination with the Secretary of State department on a form as required by the Secretary of State department and submit copies of such filing with any affected municipalities or counties. Termination of existing franchises is effective immediately upon issuance of a certificate of franchising authority by the Secretary of State department granting authority to provide cable service in the described municipalities and counties. Upon termination of existing franchises as provided in this section, the cable service provided by the provider exercising its termination option is governed by the provisions of this article in those municipalities and counties where the franchises have been terminated. The termination option of this section applies only with respect to municipalities and counties which have been described pursuant to Section 58-12-310(B)(2) by a holder of a state certificate of franchise authority and not with respect to franchises issued by other municipalities and counties.
Section 58-12-330. (A) Except as otherwise provided in Section 58-12-310, the holder of a state-issued certificate of franchise authority must pay a municipality or county a franchise fee equal to a specified percentage of the holder's gross revenues received from (1) the provision of cable service to subscribers located within the municipality or unincorporated areas of the county, and (2) from advertising and home shopping services as allocated under subsection (B) below. The specified percentage, hereafter referred to as the "state-issued certificate holder's franchise fee rate", must not exceed the lesser of the incumbent cable service provider's franchise fee rate imposed by the municipality or county, if any, or five percent of the holder's gross revenues as defined in this article. No change to the franchise fee set forth in a state-issued certificate of franchise authority is effective earlier than forty-five days after the Secretary of State department provides the holder of the state-issued certificate of franchise authority written notice of the change.
(B) The amount of a cable service provider's non-subscriber revenues from advertising and home shopping services that is allocable to a municipality or unincorporated area of a county is equal to the total amount of such cable service provider's revenue received from advertising and home shopping services multiplied by the ratio of the number of subscribers in such municipality or in the unincorporated area of such county on the preceding January first to the total number of subscribers receiving cable service from such cable service provider on that date.
(C) A municipality or county must promptly notify the Secretary of State department of any change to its cable service franchise fee rate, and no such change shall be effective as to the holder of a state-issued certificate of franchise authority earlier than forty-five days after the Secretary of State department provides the holder written notice of the change.
(D) The holder of a state-issued certificate of franchise authority must quarterly pay the amount of the franchise fees payable under this section to the affected municipalities and counties. Each quarterly payment must be made within thirty days after the end of the quarter for the preceding calendar quarter. Each payment must be accompanied by a statement showing, for the quarter covered by the payment, the state-issued certificate holder's gross revenues attributable to the municipality or unincorporated areas of the county that imposes a state-issued certificate holder's franchise fee, the applicable state-issued certificate holder's franchise fee rate for the municipality or county, and the portion of the aggregate payment attributable to the municipality or county. Any supporting statements are confidential and are exempt from disclosure under any provision of state law.
(E) The holder of a state-issued certificate of franchise authority may designate that portion of a subscriber's bill attributable to a franchise fee imposed pursuant to this article and may recover such amount from the subscriber as a separate item on the bill.
(F) No municipality or county shall levy a tax, license, fee, or other assessment on a cable service provider other than the collection of the franchise fee authorized by this section or a cable franchise fee imposed upon a cable service provider before January 1, 2006; provided, that nothing in this article shall restrict the right of a municipality or county to impose ad valorem taxes, service fees, sales taxes, or other taxes and fees lawfully imposed on other businesses within the municipality or county.
(G) The franchise fee allowed by this section is in lieu of a permit fee, encroachment fee, degradation fee, or other fee assessed on a holder of a state-issued certificate of franchise authority for its occupation of or work within the public rights-of-way with regard to a cable system.
Section 58-12-340. (A) A municipality or county may, upon reasonable written request but no more than once per year and only once with respect to any given period, review the business records of a cable service provider to the extent necessary to ensure payment of the franchise fee in accordance with Section 58-12-330. Within ninety days after receipt of a request by a county or municipality for business records pursuant to this subsection, a holder of a state-issued certificate of franchise authority must inform the requesting county or municipality of the status of the request. Thereafter, the parties must, upon request by either party, work in good faith to develop a mutually acceptable schedule for the provision of such records.
(B) No municipality, county, or holder of a state-issued certificate of franchise authority may bring any suit arising out of or relating to the amounts allegedly due to a municipality or county under Section 58-12-330, unless that entity has first initiated good-faith settlement discussions in accordance with the negotiation and mediation procedures set forth in subsection (C). All negotiations and mediation pursuant to this section must be confidential and must be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and South Carolina Rules of Evidence.
(C) A municipality, county, or holder of a state-issued certificate of franchise authority shall give the other party written notice of any dispute not resolved in the normal course of business. At the request of the municipality or county, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules that are in effect at the time for the State or for any portion of the State. Representatives of both parties, with authority to settle the dispute, must meet at a mutually agreeable time and place within thirty calendar days after receipt of such notice, and thereafter as often as reasonably deemed necessary, to exchange relevant information and attempt to resolve the dispute. If the dispute has not been resolved within sixty calendar days after receipt of the notice, either the municipality or the county may initiate nonbinding mediation. The mediation must be conducted in accordance with the South Carolina Circuit Court Alternative Dispute Resolution Rules that are in effect at the time for the State or for any portion of the State and must take place at a mutually agreeable time and location.
(D) Any suit with respect to a dispute arising out of or relating to the amount of the franchise fee allegedly due to a municipality or county under Section 58-12-330 must be filed by the municipality or county seeking to recover an additional amount alleged to be due, or by the holder of a state-issued certificate of franchise authority seeking a refund of an alleged overpayment, in a court of competent jurisdiction within three years following the end of the quarter to which the disputed amount relates; provided, however, that the time period may be extended by written agreement between the holder of a state-issued certificate of franchise authority and a municipality or county. Good faith participation in and completion of the negotiation and mediation procedures set forth in subsection (C) shall be a condition precedent to proceeding with the suit beyond its filing to toll the limitations period set forth in this subsection.
(E) Each party shall bear its own costs incurred in connection with any and all of the activities and procedures set forth in this section. A municipality or county may not employ, appoint, or retain any person or entity for compensation that is dependent in any manner upon the outcome of any such audit, including, without limitation, the audit findings or the recovery of fees or other payment by the municipality or county. A person or entity may not solicit or accept compensation dependent in any manner upon the outcome of any such audit, including, without limitation, the audit findings or the recovery of fees or other payment by the municipality or county.
(F) A municipality or county may contract with a third party for the collection of the franchise fees and enforcement of the provisions of this chapter.
Section 58-12-350. No franchising authority, state agency, or political subdivision of the State may impose any cable system construction or cable service deployment build-out requirements on a holder of a state-issued certificate of franchise authority.
Section 58-12-360. The holder of a state-issued certificate of franchise authority must comply with all applicable federal customer service requirements. The South Carolina Department of Consumer Affairs must receive complaints from customers of the holder of a state-issued certificate of franchise authority in accordance with Section 37-6-117. Contact information for the Department of Consumer Affairs must be printed on the customer's bill.
Section 58-12-370. (A) Not later than one hundred twenty days after a request by a municipality or county, the holder of a state-issued certificate of franchise authority shall provide each municipality or county in which it provides cable service with capacity in its network to allow PEG access channels for noncommercial programming consistent with this section.
(B) Except as otherwise provided in Section 58-12-310, the holder of a state-issued certificate of franchise authority shall provide the same number of PEG access channels a municipality or county has activated under the incumbent cable service provider's franchise agreement as of the date of the holder's application or amended application for a state-issued certificate of franchise authority. If a municipality or county did not have PEG access channels as of the date of the holder's application or amended application for a state-issued certificate of franchise authority, the cable service provider shall furnish, upon written request by that municipality or county, up to three PEG channels, one of which may be used by the municipality or county without restrictions relating to repeat programming. No cable service provider shall be required to provide more than three PEG access channels on its cable system. Municipalities, counties, and cable service providers must cooperate in the sharing of channel capacity to provide PEG access for municipalities and counties served by the cable system.
(C) Any PEG channel above the one unrestricted channel provided pursuant to this section that is not utilized by the municipality or county for at least eight hours a day may no longer be made available to the municipality or county but may be programmed at the cable service provider's discretion. At such time as the municipality or county can certify to the cable service provider a schedule for at least eight hours of daily programming, the cable service provider must restore the previously lost channel but is under no obligation to carry that channel on a basic or analog tier.
(D) If a municipality or county has not utilized the maximum number of additional access channels as permitted by subsection (B), access to the additional channel capacity allowed in subsection (B) may be provided upon a one-hundred-twenty-day request only if the municipality or county can demonstrate that all activated PEG channels are "substantially utilized". PEG channels must be considered "substantially utilized" when eight hours are programmed on that channel each calendar day. In addition, at least forty percent of the eight hours of programming for each business day on average over each calendar quarter must be nonrepeat programming.
(E) The operation of any PEG access channel provided pursuant to this section is the responsibility of the municipality, the county, or the Educational Television Commission receiving the benefit of the channel, and the holder of a state-issued certificate of franchise authority bears only the responsibility for the transmission of the channel. The holder of a state-issued certificate of franchise authority must be responsible for providing the connectivity to each PEG access channel distribution point up to the first two hundred feet.
(F) The municipality, the county, or the Educational Television Commission shall ensure that all transmissions of content and programming provided by or arranged by them to be transmitted over a PEG channel by a holder of a state-issued certificate of franchise authority are provided and submitted to the cable service provider in a manner or form that is capable of being accepted and transmitted by the provider over its network without further alteration or change in the content or transmission signal, and which is compatible with the technology or protocol utilized by the cable service provider to deliver its cable services.
(G) Where technically feasible, the holder of a state-issued certificate of franchise authority and an incumbent cable service provider must use reasonable efforts to interconnect their cable systems on mutually acceptable and reasonable terms for the purpose of providing PEG programming. Interconnection may be accomplished by direct cable microwave link, satellite, or other reasonable method of connection. Holders of a state- issued certificate of franchise authority and incumbent cable service providers shall negotiate in good faith, and incumbent cable service providers may not unreasonably withhold interconnection of PEG channels.
(H) A holder of a state-issued certificate of franchise authority is not required to interconnect for, or otherwise to transmit, PEG content that is branded with the logo, name, or other identifying marks of another cable service provider, and a municipality or county may require a cable service provider to remove its logo, name, or other identifying marks from PEG content that is to be made available to another provider.
Section 58-12-380. (A) A cable service provider that has been granted a state-issued certificate of franchise authority may not deny access to service to any group of potential residential subscribers because of the income of the residents in the local area in which the group resides.
(B) For purposes of determining whether a holder of a state-issued certificate of franchise authority has violated Section 58-12-380(A), cost, density, distance, and technological or commercial limitations must be taken into account, and the holder of the state-issued certificate shall have a reasonable time to deploy its service. Use of alternative technologies that provide different or comparable content, service, and functionality may not be considered a violation of this section. The inability to serve a potential residential subscriber because a holder of a state-issued certificate of franchise authority is prohibited from placing its own facilities in a building or property may not be found to be a violation of this section. This section may not be construed as authorizing any build-out requirements on a holder of a state-issued certificate of franchise authority.
(C) Any potential residential subscriber or group of residential subscribers within a municipality or county described pursuant to Section 58-12-310(B)(2) who believe they are being denied access to services in violation of subsection (A) may file a complaint with the Secretary of State, department along with a clear statement of the facts and the information supporting the complaint. At the request of the potential residential subscriber or group of residential subscribers, the parties shall participate in mediation governed by procedures established in the South Carolina Circuit Court Alternative Dispute Resolution Rules that are in effect at the time for the State or for any portion of the State. If requested by the Secretary of State, the Attorney General must investigate the allegations contained in a complaint filed pursuant to this section, assist the Secretary of State in the preparation of a written determination required by this section, and represent the Secretary of State in any proceeding instituted pursuant to this section. Upon receipt of any such complaint, the Secretary of State or the Attorney General acting on behalf of the Secretary of State department shall serve a copy of the complaint and supporting materials upon the subject cable service provider, which shall have sixty days after receipt of such information to submit a written answer and any other relevant information the provider wishes to submit to the Secretary of State department in response to the complaint. If, after investigation of the allegations contained in the complaint, the Secretary of State department determines based on the information submitted or gathered pursuant to such process that a material violation of subsection (A) has occurred, the Secretary of State department or the Attorney General acting on behalf of the Secretary of State department shall issue a written determination setting forth the basis for such findings and giving the cable service provider a reasonable time to cure such violation. If the cable service provider fails to cure such violation within the time permitted in the written determination, the Secretary of State department may seek enforcement of the terms of the written determination in the circuit courts of this State or in any federal court of competent jurisdiction. A cable service provider that is found by the Secretary of State department to be in violation of subsection (A) may challenge that determination in the circuit courts of this State or in any federal court of competent jurisdiction.
(D) The Secretary of State department must not withhold or deny an application for franchise authority due to an alleged violation of subsection (A).
Section 58-12-390. Should the holder of a state-issued certificate of franchise authority be found by a court of competent jurisdiction to be in noncompliance with the requirements of this article, the court must order the holder of the state-issued certificate of franchise authority, within a specified reasonable period of time, to cure the noncompliance.
Section 58-12-395. Nothing in this article affects the ability of a county or municipality to carry out its emergency preparedness responsibilities pursuant to Section 25-1-450(2) or its emergency alert system responsibilities pursuant to 47 CFR Part 11.
Section 58-12-400. (A) The following sections of Article 2, Chapter 12, Title 58 shall apply to a cable service provider who has been granted a state-issued certificate of franchise authority under this article: Sections 58-12-20, 58-12-30 (d) and (f), 58-12-60, 58-12-70, 58-12-110, and 58-12-130(A) and (C).
(B) In addition to the above, each holder of a state-issued certificate of franchise authority must make available one six megahertz channel if it is using analog transmission technology to deliver local broadcast television programming to subscribers over its network, or one standard digital channel if it is using digital technology for such purpose, for the transmissions of the Educational Television Commission.
(C) The following sections of Article 2, Chapter 12 of Title 58 shall not apply to a cable service provider who has been granted a state-issued certificate of franchise authority: Sections 58-12-10, 58-12-30(a), (b), (c), and (e), 58-12-40, 58-12-50, 58-12-80, 58-12-90, 58-12-100, 58-12-120, and 58-12-130(B).
F. Section 5-3-90 of the 1976 Code is amended to read:
Section 5-3-90. Any municipality increasing its territory shall file a notice with the Secretary of State Attorney General, Department of Transportation, and the Department of Public Safety describing its new boundaries. The notice shall include a written description of the boundary, along with a map or plat which clearly defines the new territory added.
G. Section 5-3-280 of the 1976 Code is amended to read:
Section 5-3-280. Whenever a petition is presented to a city or town council signed by a majority of the resident freeholders of the municipality asking for a reduction of the corporate limits of the city or town, the council shall order an election after not less than ten days' public advertisement. This advertisement shall describe the territory that is proposed to be cut off. If a majority of the qualified electors vote at the election in favor of the release of the territory, the council must issue an ordinance declaring the territory no longer a portion of the municipality and must notify the Secretary of State Attorney General of the new boundaries of the municipality.
H. Chapter 1, Title 5 of the 1976 Code is amended to read:
Section 5-1-10. (A) A municipality having a certificate of incorporation issued by the Secretary of State Attorney General and a township established by act of the General Assembly are declared to be perpetual bodies, politic and corporate, entitled to exercise all the powers and privileges provided for municipal corporations in this State, and subject to all the limitations and liabilities provided for municipal corporations in this State.
(B) The incorporation or corporate capacity of a municipality or township established by act of the General Assembly must not be attacked in any court in this State except as provided by statute.
Section 5-1-20. As used in Chapters 1 through 17 of this title, unless the context clearly indicates otherwise:
(1) "Municipality" means a city or town issued a certificate of incorporation, or township created by act of the General Assembly.
(2) "Publicly-owned property" means any federally-owned, state-owned, or county-owned land or water area.
Section 5-1-22. The General Assembly finds and declares the following to be the public policy of the State of South Carolina:
(1) publicly-owned property may be incorporated or annexed by a municipality as provided by the state's statutory law; however, publicly-owned property is for the benefit of all citizens of the State and is not the exclusive territory of any one municipality; and
(2) incorporation or annexation of publicly-owned property does not confer or convey to a municipality control over the publicly-owned property that in any way:
(a) interferes with the superior authority of the federal, state, or county government; or
(b) prevents an area seeking to be incorporated from using the publicly- owned property to establish contiguity as provided in Section 5-1-30(A)(4).
Section 5-1-24. (A) After June 30, 2005 January 1, 2009, citizens of an area seeking municipal incorporation shall file an application for incorporation with the Secretary of State's Attorney General's office containing:
(1) a petition setting out the corporate limits proposed for the municipality and the number of inhabitants residing within the proposed corporate limits, and signed by fifteen percent of the qualified electors who reside within the proposed municipality; and
(2) documentation concerning the minimum service standard incorporation requirements as provided in Section 5-1-30.
(B) Upon receipt of a filing for a proposed municipal incorporation, the Secretary of State Attorney General shall transfer a copy of the filing to the Joint Legislative Committee on Municipal Incorporation for review.
Section 5-1-26. (A) The Joint Legislative Committee on Municipal Incorporation is created to review the petition and documentation submitted by an area seeking municipal incorporation and to make a recommendation to the Secretary of State Attorney General whether the area meets the minimum service standard incorporation requirements as provided in Section 5-1-30.
(B) The committee consists of seven members:
(1) two Senators appointed by the President Pro Tempore of the Senate;
(2) two members of the House of Representatives appointed by the Speaker of the House of Representatives;
(3) one person appointed by the Governor;
(4) one city manager or elected city official appointed by the President Pro Tempore of the Senate from a list of three persons recommended by the Municipal Association of South Carolina; and
(5) one county council member or county manager or administrator appointed by the Speaker of the House of Representatives from a list of three persons recommended by the South Carolina Association of Counties.
(C) The members are appointed to serve terms of two years, initially beginning on July 1, 2005, and until their successors are appointed and qualify. A vacancy must be filled in the same manner as the original appointment for the unexpired term.
(D) The committee shall elect a chairman from its membership for a one-year term. The position of chairman rotates among the members.
(E) The committee meets at times and places as it may determine.
(F) Staff for the committee must be provided by the President Pro Tempore of the Senate and Speaker of the House of Representatives.
Section 5-1-30. (A) Before issuing a corporate certificate to a proposed municipality, the Secretary of State Attorney General shall determine based on the filing submitted and the recommendation of the Joint Legislative Committee on Municipal Incorporation whether the proposed municipality meets the following requirements:
(1) the area seeking to be incorporated has a population density of at least three hundred persons a square mile according to the latest official United States Census, except as provided in subsections (B) through (E);
(2) no part of the area is within five miles of the boundary of an active incorporated municipality, except as provided in subsections (B) through (E);
(3) the area seeking to be incorporated has filed a service feasibility study that has been reviewed by the Joint Legislative Committee on Municipal Incorporation and approved by the Secretary of State;
(4) the area proposed to be incorporated is contiguous as defined and as described in this item. "Contiguous" means adjacent properties that share a continuous border. If a publicly-owned property intervenes between two areas proposed to be incorporated together, which but for the intervening publicly-owned property would be adjacent and share a continuous border, the intervening publicly-owned property does not destroy contiguity;
(5) the area seeking to be incorporated has filed a proposal for providing either directly or indirectly a substantially similar level of law enforcement services to the area's existing law enforcement coverage prior to seeking incorporation; and
(6) the area seeking to be incorporated has filed a proposal demonstrating that at least three of the following services, either directly or by contract, will be provided to the incorporated area no later than the first day of the third fiscal year following the effective date of incorporation:
(a) fire protection at a minimum service level required in regulations promulgated by the South Carolina Fire Marshal;
(b) solid waste collection and disposal;
(c) water supply, water distribution, or both;
(d) wastewater collection and treatment;
(e) storm water collection and disposal;
(f) enforcement of building, housing, plumbing, and electrical codes;
(g) planning and zoning;
(h) recreational facilities and programs; or
(i) street lighting.
(B)(1) When an area seeking incorporation has petitioned pursuant to Chapter 17 the nearest incorporated municipality to be annexed to the municipality, and has been refused annexation by the municipality for six months, or when the population of the area seeking incorporation exceeds seven thousand persons, then the provision of the five-mile limitation of this section does not apply to the area.
(2) For purposes of item (1) of this subsection, a refusal to annex the area by the municipality includes a statement from the municipality that the area does not meet the statutory requirements for annexation.
(C) The five-mile limit does not apply when the boundaries of the area seeking incorporation are within five miles of the boundaries of two different incorporated municipalities in two separate counties other than the county within which the area seeking incorporation lies, and when the boundaries of the proposed municipality are more than five miles from the boundaries of the nearest incorporated municipality that lies within the same county within which the proposed municipality lies, and when the land area of the territory seeking incorporation exceeds one-fourth of the land area of the nearest incorporated municipality.
(D) The population requirements do not apply to areas bordering on and being within two miles of the Atlantic Ocean and to all sea islands bounded on at least one side by the Atlantic Ocean, both of which have a minimum of one hundred fifty dwelling units and at least an average of one dwelling unit for each three acres of land within the area and for which petitions for incorporation contain the signatures of at least fifteen percent of the qualified electors of the respective areas seeking incorporation.
(E) The five-mile limit does not apply to counties with a population according to the latest official United States Census of less than fifty-one thousand.
Section 5-1-40. (A) The Joint Legislative Committee on Municipal Incorporation shall return the copy of filing to the Secretary of State Attorney General with a written decision of its recommendation concerning the application for municipal incorporation.
(B) The Secretary of State Attorney General shall provide the applicant with a copy of the committee's written decision.
(C) A recommendation by the committee or a determination by the Secretary of State Attorney General that the requirements of Section 5-1-30 have not been met does not preclude the area seeking from submitting a subsequent application.
Section 5-1-50. (A)(1) After receipt of a recommendation from the Joint Legislative Committee on Municipal Incorporation, the Secretary of State Attorney General shall determine whether the requirements of Section 5-1-30 have been met. If the Secretary of State Attorney General determines that the requirements of Section 5-1-30 have been met, he shall issue to three or more persons residing in the area of the proposed municipality, a commission empowering them to:
(a) hold an election not less than twenty days nor more than ninety days after the issuance of the commission; and
(b) appoint three managers of election who shall conduct the election.
(2) Notice of the election must be published in a newspaper of general circulation in the community or by posting in three public places within the area sought to be incorporated which contains detailed information concerning the election. The notice must be published or posted not less than five nor more than fifteen days before the date of the election.
(B)(1) At such election, all registered electors living in the area sought to be incorporated must be allowed to vote on the following questions:
(a) incorporation;
(b) name of the municipality;
(c) the form of government;
(d) method of election as prescribed in Section 5-15-20;
(e) whether the election is partisan or nonpartisan; and
(f) the terms of the mayor and council members.
(2) When any of the above questions proposed in an election contain more than two options, the option receiving the highest number of votes will prevail.
(3) If a community votes in favor of incorporation pursuant to this section and selects a form of government in an election, notwithstanding the results of the selections made by the voters as to questions (d), (e), and (f) in item (1) of this subsection, the initial governing body of the incorporated municipality consists of four council members and a mayor, all elected at large in a nonpartisan election for terms of two years.
(C) The managers of election shall conduct the election, unless otherwise provided for in this chapter, according to the general law governing the conduct of special elections mutatis mutandi.
Section 5-1-60. The managers of the election shall make their sworn returns of the result of the election to the commissioners. The returns must show the total number of those voting in the election, together with the number of those voting on each question proposed.
Section 5-1-70. The commissioners shall certify the result of the election under oath to the Secretary of State Attorney General, and if the result is in favor of incorporation, the Secretary of State Attorney General shall issue a certificate of incorporation to the municipality and the municipality has all the privileges, powers, and immunities and are subject to the limitations provided by law.
Section 5-1-80. Before delivery of a certificate of incorporation, the Secretary of State Attorney General shall require the production of a receipt from the State Treasurer for the payment of the following incorporation fees for municipalities with a population:
(1) of one thousand or less, one hundred dollars;
(2) between one thousand and five thousand, three hundred dollars;
(3) over five thousand, six hundred dollars.
Section 5-1-90. The certificate of incorporation must be issued to the commissioners who immediately shall provide for the election of municipal officers pursuant to Chapter 15 and in accordance with the certificate as to form of government. Until the municipal officers are elected and qualify, the certificate of incorporation does not become effective and the powers of the municipality must be exercised only by the municipal council when the municipal council is created by election.
Section 5-1-100. (A) When following its incorporation a municipality's population has decreased to less than fifty inhabitants, the certificate of the municipality must be automatically forfeited and void. If a majority of the registered electors of a municipality files a petition requesting the municipal certificate be surrendered with the municipal council, the council shall order an election to determine the question, at which election all qualified electors of the municipality must be permitted to vote, and if two-thirds of those voting vote in favor of surrendering the certificate, the council shall certify the result to the Secretary of State Attorney General, who shall cancel the certificate issued to the municipality.
(B) If the Secretary of State Attorney General determines that any previously incorporated municipality is neither performing municipal services nor collecting taxes or other revenues and has not held an election during the past four years, he shall cancel the certificate of the municipality.
Section 5-1-110. A suit to challenge the incorporation procedures of a municipal corporation pursuant to the provisions of Chapters 1 through 17 must be brought within sixty days after the issuance of the certificate of incorporation."
I. Chapter 1, Title 26 of the 1976 Code is amended to read:
Section 26-1-10. The Governor may appoint from the qualified electors as many notaries public throughout the State as the public good shall require, to hold their offices for a term of ten years. A commission shall be issued to each notary public so appointed and the record of such appointment shall be filed in the office of the Secretary of State Attorney General. All commissions issued or renewed after July 1, 1967 shall be for the specified term. All commissions issued prior to July 1, 1967, unless renewed for the term herein provided, shall expire and terminate on January 1, 1970 for any person whose last name begins with A through K and on January 1, 1971 for any person whose last name begins with L through Z.
Section 26-1-20. Each county legislative delegation shall determine whether the endorsement of notaries public must be by (1) one-half of the members of the legislative delegation representing that county in which the applicant resides or, (2) endorsement by the Senator and Representative in whose district the applicant resides, without other endorsers. Each county legislative delegation shall notify the Secretary of State Attorney General in writing if it chooses to utilize method (2) within the individual county. If the county legislative delegation chooses to utilize method (2), the applicant, Senator, and Representative shall indicate their respective districts on the application provided to the Secretary of State Attorney General. If the office of Senator or Representative from that district is vacant at the time the application is submitted, the notary public may be appointed upon the endorsement of a majority of the legislative delegation representing the county in which the applicant resides.
Section 26-1-25. In addition to the methods of endorsement of applications for notary public commissions provided in Section 26-1-20, a legislator may provide for the endorsement of these applications by authorizing either the member serving as chairman or the member serving as secretary of the legislative delegation of the county in which the applicant resides to sign on the legislator's behalf.
A copy of the resolution adopting any or all of these endorsement methods for a county must be forwarded to the Secretary of State Attorney General, after which the method or methods of endorsement shall continue to apply in the county unless rescinded by a subsequent delegation resolution
Section 26-1-30. The fee for the issuance or renewal of a commission is twenty-five dollars, collected by the Secretary of State as other fees.
Section 26-1-40. Every notary public shall take the oath of office prescribed by the Constitution, certified copies of which shall be recorded in the office of the Secretary of State Attorney General.
Section 26-1-50. Every notary public shall, within fifteen days after he has been commissioned, exhibit his commission to the clerk of the court of the county in which he resides and be enrolled by the clerk.
Section 26-1-60. Each notary public shall have a seal of office, which shall be affixed to his instruments of publications and to his protestations. He shall indicate below his signature the date of expiration of his commission. But the absence of such seal or date prior to and after May 30, 1968 shall not render his acts invalid if his official title be affixed thereto.
Section 26-1-70. Any notary public whose name is legally changed during his term of office may apply to the Secretary of State Attorney General in such manner as may be prescribed by him, and the Secretary of State Attorney General may change the name of the notary upon proper application and upon payment of a fee of ten dollars. The term expires at the same time as the original term.
Section 26-1-80. The jurisdiction of notaries public shall extend throughout the State.
Section 26-1-90. A notary public may administer oaths, take depositions, affidavits, protests for nonpayment of bonds, notes, drafts and bills of exchange, acknowledgments and proof of deeds and other instruments required by law to be acknowledged and renunciations of dower and perform all other acts provided by law to be performed by notaries public.
Section 26-1-95. A notary public who, in his official capacity, falsely certifies to affirming, swearing, or acknowledging of a person or his signature to an instrument, affidavit, or writing is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. A notary public convicted under the provisions of this section shall forfeit his commission and shall not be issued another commission. The court in which the notary public is convicted shall notify the Secretary of State Attorney General within ten days after conviction.
Section 26-1-100. A notary public shall exercise no power or jurisdiction in criminal cases.
Section 26-1-110. Any attorney at law who is a notary public may exercise all his powers as a notary notwithstanding the fact that he may be interested as counsel or attorney at law in any matter with respect to which he may so exercise any such power and may probate in any court in this State in which he may be counsel.
Section 26-1-120. A notary public who is a stockholder, director, officer or employee of a corporation may take renunciation of dower in any written instrument, take the acknowledgment or the oath of a subscribing witness of any party to a written instrument executed to or by such corporation, administer an oath to any stockholder, director, officer, employee or agent of such corporation or protest for nonacceptance or nonpayment bills of exchange, drafts, checks, notes and other negotiable instruments which may be owned or held for collection by such corporation. But when a notary public is individually a party to an instrument it shall be unlawful for him to take the acknowledgment or probate to such instrument executed by or to a corporation of which he is a stockholder, director, officer or employee or to protest any such negotiable instrument owned or held for collection by such corporation.
J. Section 26-6-190 of the 1976 Code is amended to read:
"Section 26-6-190. (A) The South Carolina State Budget and Control Board shall adopt standards to coordinate, create, implement, and facilitate the use of common approaches and technical infrastructure, as appropriate, to enhance the utilization of electronic records, electronic signatures, and security procedures by and for public entities of the State. Local political subdivisions may consent to be governed by these standards.
(B) The Secretary of State Attorney General may develop, implement, and facilitate the use of model procedures for the use of electronic records, electronic signatures, and security procedures for all other purposes, including private commercial transactions and contracts. The Secretary of State Attorney General also may promulgate regulations as to methods, means, and standards for secure electronic transactions including administration by the Secretary of State Attorney General or the licensing of third parties to serve in that capacity, or both.
(C) In accordance with Sections 26-6-20(18) and 26-6-195, and in reference to all South Carolina laws, rules, and regulations pertaining to service of process where service shall be made on entities described in Rule 4(d)(3) of the South Carolina Rules of Civil Procedure, those entities shall be served under Rule 4(d)(8) of the South Carolina Rules of Civil Procedure by:
(1) registered or certified mail-return receipt requested, addressed to the office of the registered agent;
(2) registered or certified mail-return receipt requested, addressed to the office of the secretary of the corporation at its principal office;
(3) e-mailing the service of process that has been postmarked by a United States Postal Service Electronic Postmark in a manner approved by the South Carolina Supreme Court to an e-mail address registered with the Secretary of State Department of Commerce for the corporation; or
(4) e-mailing the service of process that has been postmarked by a United States Postal Service Electronic Postmark in a manner approved by the South Carolina Supreme Court to an e-mail address registered with the Secretary of State Department of Commerce for the agent for service of process for the corporation."
K. Chapter 56, Title 33 of the 1976 Code is amended to read:
Section 33-56-10. This chapter may be cited as the "South Carolina Solicitation of Charitable Funds Act".
Section 33-56-20. As used in this chapter, unless a different meaning is required by the context:
(1)(a) "Charitable organization" means a person, as defined in item (7):
(i) determined by the Internal Revenue Service to be a tax exempt organization pursuant to Section 501(c)(3) of the Internal Revenue Code;
(ii) that is or holds itself out to be established for any benevolent, social welfare, scientific, educational, environmental, philanthropic, humane, patriotic, public health, civic, or other eleemosynary purpose, or for the benefit of law enforcement personnel, firefighters, or other persons who protect the public safety; or
(iii) that employs a charitable appeal as the basis of solicitation or an appeal that suggests that there is a charitable purpose to a solicitation, or that solicits or obtains contributions solicited from the public for a charitable purpose.
(b) This definition does not include:
(i) a bona fide religious organization or group affiliated with and forming an integral part of the religious organization where no part of the net income inures to the direct benefit of an individual and its conduct is supported primarily by government grants or contracts, funds solicited from its own membership, congregation, or previous donors, or fees charged for services rendered in furtherance of its tax-exempt purpose; or
(ii) a candidate for national, state, or local office or a political party or other group required to file information with the Federal Election Commission or State Election Commission.
(2) "Charitable purpose" means a purpose described in Section 501(c)(3) of the Internal Revenue Code or a benevolent, social welfare, scientific, educational, environmental, philanthropic, humane, patriotic, public health, civic, or other eleemosynary objective, including an objective of an organization of law enforcement personnel, firefighters, or other persons who protect the public safety if a stated purpose of the solicitations includes a benefit to a person outside the actual service membership of the organization.
(3) "Commercial co-venturer" means a person that regularly and primarily engages in trade or commerce for profit that, for the benefit of a charitable organization, may raise funds by advertising that the purchase or use of goods, services, entertainment, or other thing of value benefits the charitable organization, if it is offered at a price comparable to similar goods or services in the market.
(4) "Contribution" means the promise, grant, or pledge of money, credit, assistance, or property of any kind or value. It does not include bona fide fees, dues, or assessments paid by members of an organization if membership is not conferred solely as consideration for making a contribution in response to a solicitation, and that membership does not bestow only a right to vote.
(5) "Educational institution" means an organization organized and operated exclusively for educational purposes, which usually maintains a regular faculty and curriculum and usually has a regularly enrolled body of pupils or students in attendance at the place where educational activities are regularly conducted. The term "educational institution" also includes the following persons, entities, or institutions if their fundraising activities are not conducted by professional solicitors as defined by this chapter:
(a) an educational institution that is an eleemosynary junior or senior college in South Carolina whose major campus and headquarters are located within this State and which is accredited by the Southern Association of Colleges and Secondary Schools; and
(b) a person or an entity performing sanctioned fundraising activities on behalf of the educational institutions referenced in subitem (a) above, its foundations, or related or affiliated funds.
(6) "Parent organization" means that part of a charitable organization which coordinates, supervises, or exercises control over policy, fundraising, and expenditures, or assists or advises one or more chapters, branches, or affiliates in this State.
(7) "Person" means an individual, an organization, a trust, a foundation, a group, an association, a partnership, a corporation, a society, or a combination of them.
(8) "Professional fundraising counsel" means a person that for compensation plans, conducts, manages, prepares materials for, advises, or acts as a consultant, directly or indirectly, in connection with soliciting contributions for or on behalf of a charitable organization, but that actually does not solicit contributions as a part of these services. A bona fide salaried officer or employee of a charitable organization maintaining a permanent establishment within this State, or the bona fide salaried officer or employee of a parent organization certified as tax exempt, is not a professional fundraising counsel.
(9) "Professional solicitor" means a person that, for monetary consideration, solicits contributions for or on behalf of a charitable organization, either personally or through its agents, servants, or employees who are specially employed by or for a charitable organization and who are engaged in the solicitation of contributions under the direction of that person. "Professional solicitor" also means a person that plans, conducts, manages, carries on, advises, or acts as a consultant to a charitable organization in connection with the solicitation of contributions but does not qualify as "professional fundraising counsel" within the meaning of this chapter. A bona fide salaried officer, unpaid director, a bona fide employee of a charitable organization, or a part-time student employee of an educational institution is not a professional solicitor. A paid director or employee is not a professional solicitor unless his salary or other compensation is paid as a commission computed on the basis of funds actually raised or to be raised.
(10) "Solicit" and "solicitation" means to request and the request for money, credit, property, financial assistance, or other thing of value, or a portion of it, to be used for a charitable purpose or to benefit a charitable organization. A solicitation takes place whether or not the person making the request receives a contribution.
Section 33-56-30. (A) Except as otherwise provided in this chapter, a charitable organization which intends to solicit contributions within this State or have contributions solicited on its behalf must file a registration statement with the Secretary of State Attorney General, on forms prescribed by the Secretary of State Attorney General, by July first of each year but in all cases prior to solicitation. The registration forms and other documents prescribed by the Secretary of State Attorney General must be (i) signed by the chief executive officer and chief financial officer of the charitable organization, (ii) certified as true, and (iii) filed, along with a fee of fifty dollars.
(B) The statements must contain:
(1) the name of the organization;
(2) the purpose for which it was organized;
(3) the principal address of the organization and the address of offices in this State. If the organization does not maintain an office, the name and address of the person having custody of its financial records;
(4) the names and addresses of the chief executive officer, chief financial officer, directors, trustees, officers, and board members;
(5) the names and addresses of chapters, branches, or affiliates in this State;
(6) the place and date the organization was legally established and the form of its organization;
(7) whether the organization intends to use a professional fundraising counsel, professional solicitor, or commercial co-venturer or hire individuals to solicit and, if so, their names and contact information;
(8) a copy of any determination letter recognizing the charitable organization's tax-exempt status from the Internal Revenue Service and any changes, amendments, or revocations to that letter unless those documents have been previously filed with the Secretary of State Attorney General;
(9) the general purpose for which the solicited contributions are to be used;
(10) whether the organization is authorized by another local, state, or federal governmental authority to solicit contributions and, if so, a list of each;
(11) whether the organization is or has been the subject of a legal or administrative action concerning a charitable solicitation, fundraising campaign, or campaign with a commercial co-venturer by another local, state, or federal governmental authority including, but not limited to, registration or license revocation or denial, fines, injunctions, or suspensions, and an explanation of all actions;
(12) whether any of the organization's officers, directors, trustees, or board members have been the subject of a criminal conviction, including guilty or nolo contendere pleas, involving any charitable solicitations act, fraud, dishonesty, or false statement in a jurisdiction within the United States and, if so, a description and date of any such conviction;
(13) the charitable organization's Federal Employer's Identification Number (EIN);
(14) the name and address of the registered agent of the charitable organization, if incorporated;
(15) an annual financial report for the immediately preceding fiscal year filed on forms prescribed by the Secretary of State Attorney General or on the Internal Revenue Service Form 990, 990EZ, or 990PF, unless that report already has been filed with the Secretary of State Attorney General;
(16) a statement as to the relationship of any of the charitable organization's officers, directors, trustees, or board members by blood, marriage, or adoption to:
(a) each other; or
(b) a director or an officer of a professional fundraising counsel or professional solicitor under contract with the charitable organization.
If so, the names and addresses of the related parties.
Section 33-56-40. The Children's Trust Fund of South Carolina as established by Section 20-7-5010 is required to register with the Secretary of State Attorney General but is not required to pay the annual registration fee provided for in Section 33-56-30.
Section 33-56-45. A fire department conducting or intending to conduct a professional solicitation of charitable funds may comply with the registration and fee requirements of this chapter if the local governing body having jurisdiction over that department and other departments in its area singly registers the multiple departments annually and pays a single annual registration fee of fifty dollars pursuant to Section 33-56-30. The single annual registration and fee payment of fifty dollars effectively registers all fire departments within the jurisdiction of the local governing body. Recordkeeping is the responsibility of individual fire departments, and the Secretary of State Attorney General shall provide all registered fire departments with the appropriate forms.
Section 33-56-50. (A) The following are not required to file registration statements with the Secretary of State Attorney General if their fundraising activities are not conducted by professional solicitors, professional fundraising counsel, or commercial co-venturers:
(1) an educational institution which solicits contributions from only its students and their families, alumni, faculty, friends, and other constituencies, trustees, corporations, foundations, and individuals who are interested in and supportive of the programs of the institution;
(2) a person requesting contributions for the relief of an individual specified by name at the time of the solicitation when all of the contributions collected, without deductions of any kind, are turned over to the named beneficiary for his use, as long as the person soliciting the contributions is not a named beneficiary;
(3) a charitable organization which (a) does not intend to solicit or receive contributions from the public in excess of five thousand dollars during a calendar year, or (b)(i) does not intend to solicit or receive contributions from the public in excess of twenty thousand dollars in a calendar year and (ii) has received a letter of tax exemption from the Internal Revenue Service, if all functions, including fundraising activities, of the organization exempted pursuant to this item are conducted by persons who are compensated no more than five hundred dollars in a year for their services and no part of their assets or income inures to the benefit of or is paid to an officer or a member. If the contributions raised from the public, whether or not the contributions are actually received by a charitable organization during any calendar year, are in excess of these amounts, within thirty days after the date the contributions exceed these amounts, the organization must register with and report to the Secretary of State Attorney General as required by this chapter;
(4) an organization which solicits exclusively from its membership, including a utility cooperative;
(5) a veterans' organization which has a congressional charter; and
(6) the State, its political subdivisions, and an agency or a department of the State which are subject to the disclosure provisions of the Freedom of Information Act.
(B) A charitable organization claiming to be exempt from the registration provisions of this chapter and which solicits charitable contributions must submit annually to the Secretary of State Attorney General, on forms prescribed by the Secretary of State Attorney General, the name, address, and purpose of the organization and a statement setting forth the reason for the claim for exemption. If appropriate, the Secretary of State Attorney General or his appropriate division shall issue a letter of exemption which may be exhibited to the public. A filing fee is not required of an exempt organization.
Section 33-56-55. The provisions of this chapter do not apply to a parent-teacher association affiliated with a school or to a local chamber of commerce. Reporting of fundraising activities or other reporting pursuant to this chapter is not required of a parent-teacher association or a local chamber of commerce whether or not they would be considered exempt organizations under Section 33-56-50, if none of the fundraising activities are conducted by professional solicitors.
Section 33-56-60. (A) A charitable organization soliciting funds in this State, whether individually or collectively with other organizations, and not exempt pursuant to Section 33-56-50, shall file in the office of the Secretary of State Attorney General an annual report of its financial activities, on forms prescribed by the Secretary of State Attorney General or on Internal Revenue Service Form 990, 990EZ, or 990PF, certified to be true by the organization's chief executive officer and chief financial officer. The report must cover the preceding fiscal year and must be filed within four and one-half months of the close of the organization's fiscal year unless a written extension has been granted by the Secretary of State Attorney General. To receive an extension, the organization must file with the Secretary of State Attorney General a copy of the extension request submitted to the Internal Revenue Service.
(B) The annual financial report must include:
(1) specific and itemized support and revenue statements disclosing direct public support from solicitation, indirect public support, government grants, program service revenue, and other revenue. The report must disclose the amount of direct public support received from direct mail solicitation, telephone solicitation, commercial co-venturers, door-to-door solicitations, telethons, and all other itemized sources;
(2) specific and itemized expense statements disclosing program services, public information expenditures, fundraising costs, payments to affiliates, management costs, and salaries paid; and
(3) balance sheet disclosures containing total assets and liabilities.
(C) If a charitable organization is required or elects to file a completed Internal Revenue Service Form 990, 990EZ, or 990PF, the organization may file the form with the Secretary of State Attorney General instead of the report required by subsection (A); however, the form may exclude the information which the Internal Revenue Service would not release pursuant to a Freedom of Information request.
(D) An organization which fails to file a timely annual financial report required by this section may be enjoined from further solicitation of funds in this State in an action brought by the Secretary of State Attorney General and is ineligible to renew its registration as a charitable organization until the required financial statements are filed with the Secretary of State Attorney General. An organization which fails to file a timely annual financial report required by this section may be assessed by the Secretary of State Attorney General administrative fines of ten dollars for each day of noncompliance for each delinquent report not to exceed two thousand dollars for each separate violation.
Section 33-65-70. (A) A contract or agreement between any professional fundraising counsel, professional solicitor, or commercial co-venturer and a charitable organization must be in writing and filed, along with a Notice of Solicitation form, with the Secretary of State Attorney General at least ten days before the professional fundraising counsel, professional solicitor, or commercial co-venturer begins any solicitation activity or any other activity contemplated by the contract or agreement in this State. Solicitations or services pursuant to a contract may not begin in this State until the contract has been filed with the Secretary of State Attorney General and until both the charitable organization and the professional solicitor or professional fundraising counsel are registered properly with the Secretary of State Attorney General.
(B) A contract filed pursuant to this section must disclose the following, if applicable:
(1) legal name and alias name, address, and registration number, if any, of the professional solicitor, professional fundraising counsel, or commercial co-venturer;
(2) legal name, address, and registration number of the charitable organization;
(3) name and residence address of each person directing or supervising the contract solicitation services;
(4) description of the event or campaign;
(5) date the solicitation or campaign commences;
(6) date the solicitation or campaign terminates;
(7) statement of the guaranteed minimum percentage of gross receipts to be remitted or retained by the charitable organization, excluding the amount which the charitable organization must pay for fundraising costs;
(8) statement of the percentage of gross receipts with which the professional solicitor, professional fundraising counsel, or commercial co-venturer is compensated, including the amount the professional solicitor, professional fundraising counsel, or commercial co-venturer must be reimbursed as payment for fundraising costs; and
(9) if applicable, the maximum dollar amount that will benefit the charitable organization.
(C) Every Notice of Solicitation form filed pursuant to this section must disclose:
(1) legal name and alias name, address, and registration number of the professional solicitor, professional fundraising counsel, or commercial co-venturer;
(2) legal name, address, and registration number of the charitable organization;
(3) date the solicitation activity commences and terminates;
(4) name and residence address of phone room directors for any solicitation activities;
(5) location, including physical address, and telephone numbers from which the solicitation activity, including telephone solicitations, is conducted;
(6) description of all solicitation activity; and
(7) the terms of remuneration for the campaign or event pursuant to the contract.
(D) Within ninety days after a solicitation campaign has been completed, or within ninety days after the anniversary of a solicitation campaign lasting more than one year, the professional solicitor must file with the Secretary of State Attorney General a joint financial report for the campaign, including gross revenue, an itemization of expenses, and the amount paid to the sponsor. This joint financial report must be completed on the form prescribed by the Secretary of State Attorney General, signed by both an authorized official of the professional solicitor and an authorized official of the charitable organization, and certified to be true.
(E) A professional fundraising counsel, professional solicitor, or commercial co-venturer failing to comply with this section is ineligible to renew its registration or continue solicitation activities or campaigns until the required information is filed and is liable for an administrative fine not to exceed ten dollars for each day of noncompliance, with a maximum fine of two thousand dollars for each separate violation.
Section 33-56-80. Registration statements and applications, reports, professional fundraising counsel contracts, professional solicitor contracts, or commercial co-venturer contracts, and all other documents and information required to be filed pursuant to this chapter or by the Secretary of State Attorney General are public records in the office of the Secretary of State Attorney General and are open to the general public for inspection at a time and under conditions as the Secretary of State Attorney General may prescribe. The Secretary of State Attorney General shall publish and make available to the public and to persons subject to this chapter explanatory information concerning this chapter, the duties imposed by this chapter, and the means for enforcing this chapter.
Section 33-56-90. (A) At the initial time of solicitation, a professional solicitor must disclose its status as a "professional" or "paid" solicitor. The professional solicitor also must disclose the registered true name of the professional fundraising organization for which it works and the registered true name, location, and purpose of the charitable organizations for which it is soliciting. Upon oral or written request of the solicited party, a professional solicitor also must disclose the percentage of gross receipts with which the professional solicitor is compensated including the amount the professional solicitor must be reimbursed as payment for fundraising costs. The professional solicitor also must disclose the guaranteed minimum percentage of gross receipts to be remitted or retained by the charitable organization excluding the amount which that the charitable organization must pay for fundraising costs.
(B) Upon oral or written request by the solicited party, the professional solicitor must deliver to the solicited party within fifteen business days of the request a:
(1) financial statement of the charitable organization disclosing assets, liabilities, fund balances, revenue, and expenses for the preceding fiscal year. This financial statement must be the most recently submitted annual financial report pursuant to Section 33-56-60; and
(2) copy of the professional solicitor's or charitable organization's current registration certification from the Secretary of State Attorney General.
(C) A professional solicitor that fails to comply with the provisions of this section is liable for an administrative fine not to exceed two thousand dollars for each separate violation.
(D) An offense committed in violation of this section is considered to have been committed at the place where the solicitation either was initiated or was received.
Section 33-56-100. In accordance with the regulations promulgated by the Secretary of State Attorney General, a charitable organization, professional solicitor, professional fundraising counsel, or commercial co-venturer subject to the provisions of this chapter must keep the true fiscal records as to its activities in this State. The records must be retained for at least three years after the end of the period of registration to which they relate.
Section 33-56-110. (A) A person may not act as a professional fundraising counsel or professional solicitor for a charitable organization subject to the provisions of this chapter without first having registered with the Secretary of State Attorney General. Registration includes filing of a complete application and filing fee. An application for registration must be in writing under oath or affirmation in the form prescribed by the Secretary of State Attorney General. The application for registration by a professional fundraising counsel or professional solicitor must be signed by its chief executive officer and chief financial officer, certified as true, and accompanied by an annual fee of fifty dollars.
(B) The application for a professional fundraising counsel or professional solicitor must include the:
(1) legal name of the applicant;
(2) principal address of the applicant and address of officers and directors of the applicant;
(3) list of employees, whether full time, part time, or contract, and their job titles;
(4) form of the applicant's business;
(5) names, addresses, and titles of all current principal officers, directors, individual owners, or partners, and those for the preceding three years;
(6) list of the full names and addresses of each state in which an applicant is registered currently as a professional fundraising counsel or professional solicitor;
(7) list of charitable organizations with which an applicant contracted in this State for the previous three years;
(8) registration fee of fifty dollars;
(9) statement as to whether the applicant, or its directors, principal officers, individual owners, or partners is or has been the subject of a legal or administrative action, including an injunction, concerning a charitable solicitation, fundraising campaign, or campaign with a commercial co-venturer by another local, state, or federal governmental authority including, but not limited to, registration or license revocation or denial, fines, injunctions, suspensions, or voluntary agreement to discontinue any charitable solicitation activity and, if so, a written explanation of those actions;
(10) statement as to whether the applicant, or its directors, principal officers, individual owners, or partners has been the subject of a criminal conviction, including guilty or nolo contendere pleas, involving any charitable solicitations act, fraud, dishonesty, or false statement in a jurisdiction within the United States and, if so, a description and date of any such conviction;
(11) applicant's Federal EIN if incorporated or Social Security number if acting as a sole proprietor;
(12) list of individuals who serve as couriers or employees to personally collect contributed funds from solicited parties, as applicable; and
(13) statement as to the relationship of any of the officers, directors, trustees, or board members of a professional fundraising counsel or professional solicitor to:
(a) each other; or
(b) a director, officer, agent, or employee of a charitable organization under contract with the professional fundraising counsel or solicitor.
(C) At the time of application, a professional solicitor must file with and have approved by the Secretary of State Attorney General a surety bond, and a list of all professional solicitors operating under the bond. The applicant or its employer must be the principal obligor in the sum of fifteen thousand dollars, with one or more sureties that are satisfactory to the Secretary of State Attorney General and whose liability in the aggregate as the sureties at least equals that sum, and must maintain the bond in effect so long as a registration is in effect. A deposit of cash in the amount of fifteen thousand dollars may be accepted instead of the bond. The bond shall run to the State of South Carolina for the use of the Secretary of State Attorney General or his appropriate division and a person who has cause of action against the obligor of the bond for losses resulting from malfeasance, nonfeasance, or misfeasance in the conduct of solicitation activities or any violation of this chapter. A partnership or corporation which is a professional solicitor may file a consolidated bond on behalf of all its members, officers, and employees.
(D) Each registration is valid throughout the State for one year and may be renewed for additional one-year periods upon written application under oath in the form prescribed by the Secretary of State Attorney General and upon payment of the fee prescribed in this chapter.
(E) A professional solicitor or professional fundraising counsel that fails to comply with the provisions of this section is liable for an administrative fine of ten dollars for each day of noncompliance, not to exceed two thousand dollars for each separate violation.
(F) A professional solicitor or professional fundraising counsel that has been convicted of or pled guilty or nolo contendere to a crime involving charitable solicitation activities or a felony involving fraud, dishonesty, or false statement in a jurisdiction within the United States in the past five years may be ineligible for registration as a professional solicitor or professional fundraising counsel in the State of South Carolina.
Section 33-56-120. (A) In connection with the solicitation of contributions for or the sale of goods or services, a person shall not misrepresent or mislead, knowingly and wilfully, a person by any manner, means, practice, or device.
(B) A charitable organization, professional fundraising counsel, or professional solicitor shall not use or exploit the fact of registration so as to lead the public to believe that the registration in any way constitutes an endorsement or approval by the State. However, the use of the following statement is not considered a prohibited exploitation: "Registered with the Secretary of State Attorney General as required by law". Registration does not imply endorsement of a public solicitation for contributions.
(C) In connection with the solicitation of contributions or the sale of goods or services for charitable purposes, a person shall not represent to or mislead a person by any manner, means, practice, or device to believe that another person sponsors or endorses the solicitation of contributions, sale of goods or services for charitable purposes, or approves of the charitable purposes or a charitable organization connected with it when the other person has not given written consent to the use of his name for these purposes. A member of the board of directors or trustees of a charitable organization or another person who has agreed either to serve or to participate in a voluntary capacity in the campaign is considered to have given his consent to the use of his name in the campaign.
(D) A person shall not make any representation that he is soliciting contributions for or on behalf of a charitable organization or shall not use or display any emblem, device, or printed matter belonging to or associated with a charitable organization for the purpose of soliciting or inducing contributions from the public without first being authorized to do so by the charitable organization.
(E) For the purpose of soliciting contributions from a person in this State, a person shall not use the name of another person except that of an officer, a director, or a trustee of the charitable organization by or for which contributions are solicited, without the written consent of the other person. A person is considered to have used the name of another person for the purpose of soliciting contributions if the latter person's name is listed on any stationery, advertisement, brochure, or correspondence in or by which a contribution is solicited by or on behalf of a charitable organization or if his name is listed or referred to in connection with a request for a contribution as one who has contributed to, sponsored, or endorsed the charitable organization or its activities.
(F) Nothing contained in subsection (E) prevents the publication of names of contributors, without their written consent, in an annual or other periodic report issued by a charitable organization for the purpose of reporting on its operations and affairs to its membership or for the purpose of reporting contributions to contributors.
(G) A person shall not knowingly or wilfully use a misleading practice or device to solicit the contribution or sale of goods or services for a charitable purpose in connection with a declared state of emergency or disaster as described in Section 39-5-147. Penalties provided in this chapter are cumulative of and in addition to those provided in Section 39-5-147.
Section 33-56-130. If a charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer soliciting contributions from people in this State and having a principal place of business outside the State, or organized under and by virtue of the laws of a foreign state, is subject to the provisions of this chapter and does not otherwise appoint a registered agent for service of process, that charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer is considered to have appointed irrevocably the Secretary of State Attorney General as an agent upon whom may be served summons, subpoena, subpoena duces tecum, or other process directed to the charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer or a partner, principal officer, or director of it in any action or proceeding brought pursuant to this chapter. Service of process is made by delivering to and leaving with the Secretary of State Attorney General, or with any person designated to receive service at the office of the Secretary of State Attorney General, duplicate copies of the process, notice, or demand. The service is sufficient service if notice of the service and a copy of the process are sent by the Secretary of State Attorney General to the charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer, by registered or certified mail with return receipt requested, at the address provided for in the registration form required to be filed with the Secretary of State Attorney General pursuant to this chapter or, in default of the filing of the form, at the last address known to the Secretary of State Attorney General. Service of process is complete ten days after the receipt by the Secretary of State Attorney General of a return receipt purporting to be signed by the addressee or a person qualified to receive the registered or certified mail, in accordance with the accepted practices of the United States Postal Service or, if acceptance was refused by the addressee, ten days after the return to the Secretary of State Attorney General of the original envelope bearing a notation by the postal authorities that receipt of it was refused.
Section 33-56-140. (A) Upon his own motion or upon complaint of any person, the Secretary of State Attorney General may investigate any charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer to determine if it has violated the provisions of this chapter or has filed an application, or other information required by this chapter, which contains false or misleading statements. The Secretary of State Attorney General may subpoena or audit persons and require the production of books, papers, and other documents to aid in the investigation of alleged violations of this chapter.
(B) If a charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer fails to file a registration application, statement, report, or other information required to be filed with the Secretary of State Attorney General by this chapter, or otherwise violates the provisions of this chapter, the Secretary of State Attorney General must notify the delinquent charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer of this fact by mailing a notice by registered or certified mail, with return receipt requested, to its last known address. If the required registration application, statement, annual report, assurance of voluntary compliance, or other information is not filed, or if the other existing violation is not discontinued, within fifteen days after the formal notification or receipt of the notice, the Secretary of State Attorney General may assess an administrative fine not to exceed two thousand dollars for each separate violation against the charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer.
(C) In addition to other actions authorized by law, the Secretary of State Attorney General, if he has reason to believe that one or more of the following acts or violations listed below has occurred or may occur, may bring an action before an administrative law judge to enjoin the charitable organization, professional fundraising counsel, professional solicitor, commercial co-venturer, or other person from continuing the act or violation, or committing other acts in furtherance of it, and for other relief as the court considers appropriate:
(1) a person knowingly and wilfully operates in violation of the provisions of this chapter;
(2) a person knowingly and wilfully makes a false statement in any registration application, statement, report, or other information required to be filed by this chapter;
(3) a person fails to file a registration statement, annual financial report, or other document required to be filed by this chapter;
(4) a person is using in the solicitation or collection of contributions any device, scheme, or artifice to defraud or to obtain money or property by means of false pretense, representation, or promise;
(5) the officers or representatives of a charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer refuse or fail, after notice, to produce records of the organization; or
(6) the funds raised by solicitation activities are not devoted to the charitable purposes of the charitable organization.
(D) Any registration application, statement, report, or other information required to be filed with the Secretary of State Attorney General pursuant to this chapter by a charitable organization, professional fundraising counsel, professional solicitor, or commercial co-venturer which contains false or misleading statements may be rejected by the Secretary of State Attorney General and returned to the submitting party without being filed.
(E) A person who is assessed an administrative fine, has had his registration suspended, or who is denied registration has thirty days from receipt of certified notice from the Secretary of State Attorney General to pay the fine or request an evidentiary hearing before an administrative law judge. If a person fails to remit fines or request a hearing after the required notice is given and after thirty days from the date of receipt of certified notice has elapsed the Secretary of State Attorney General may suspend his registration pending final resolution and may bring action before the administrative law judge to enjoin the person from engaging in further charitable solicitation activities in this State. The decision of the administrative law judge may be appealed as provided in Section 1-23-610.
(F) The Secretary of State Attorney General may exercise the authority granted in this section against a person that operates under the guise or pretense of being an organization exempted by the provisions of Section 33-56-40 or 33-56-50 but is not in fact an organization entitled to the exemption.
Section 33-56-145. (A) A person that knowingly and wilfully violates a provision of this chapter with the intent to deceive or defraud an individual or a charitable organization is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than five thousand dollars or imprisoned not more than one year, or both. For a second offense or subsequent offense, a person is guilty of a felony and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than five years, or both.
(B) A person that knowingly and wilfully gives false or misleading information to the Secretary of State Attorney General in a registration, filing statement, or report required by this chapter is guilty of a misdemeanor and, upon conviction for a first offense, must be fined not more than two thousand dollars or imprisoned not more than one year, or both. For a second offense or subsequent offense, a person is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.
(C) A person that is convicted or pleads guilty or nolo contendere pursuant to subsection (A) or (B) forfeits the bond described in Section 33-56-110 to the Secretary of State Attorney General and is prohibited from serving as a professional solicitor or fundraising counsel in this State for a minimum of five years from the date of the conviction.
(D) A violation of this chapter involving a solicitation is considered to be committed at the place where the solicitation was either initiated or was received.
Section 33-56-150. There is created in the office of the Secretary of State Attorney General a Division of Public Charities which, under the direction and control of the Secretary of State Attorney General, shall perform the duties imposed upon it by the provisions of this chapter. The executive and administrative head of the division is the Director of Public Charities designated by the Secretary of State Attorney General.
Section 33-56-160. The first two hundred thousand dollars in administrative fine revenue received pursuant to this chapter in a fiscal year may be retained by the Secretary of State Attorney General to offset the expenses of enforcing this chapter. All administrative fines collected pursuant to this chapter in excess of two hundred thousand dollars in a fiscal year must be transmitted to the State Treasurer and deposited in the state general fund. All fees collected pursuant to this chapter must be transmitted to the State Treasurer and deposited in a fund separate and distinct from the state general fund and used by the Secretary of State Attorney General for the purpose of administering the provisions of this chapter.
Section 33-56-170. For purposes of Section 33-56-180:
(1) "Charitable organization" means any organization, institution, association, society, or corporation which is exempt from taxation pursuant to Section 501(c)(3) or 501(d) of Title 26 of the United States Code, as amended.
(2) "Employee" means an agent, servant, employee, or officer of a charitable organization.
Section 33-56-180. (A) A person sustaining an injury or dying by reason of the tortious act of commission or omission of an employee of a charitable organization, when the employee is acting within the scope of his employment, may recover in an action brought against the charitable organization only the actual damages he sustains in an amount not exceeding the limitations on liability imposed in the South Carolina Tort Claims Act in Chapter 78 of Title 15. An action against the charitable organization pursuant to this section constitutes a complete bar to any recovery by the claimant, by reason of the same subject matter, against the employee of the charitable organization whose act or omission gave rise to the claim unless it is alleged and proved in the action that the employee acted in a reckless, wilful, or grossly negligent manner, and the employee must be joined properly as a party defendant. A judgment against an employee of a charitable organization may not be returned unless a specific finding is made that the employee acted in a reckless, wilful, or grossly negligent manner. If the charitable organization for which the employee was acting cannot be determined at the time the action is instituted, the plaintiff may name as a party defendant the employee, and the entity for which the employee was acting must be added or substituted as party defendant when it reasonably can be determined.
(B) If the actual damages from the injury or death giving rise to the action arose from the use or operation of a motor vehicle and exceed two hundred fifty thousand dollars, this section does not prevent the injured person from recovering benefits pursuant to Section 38-77-160 but in an amount not to exceed the limits of the uninsured or underinsured coverage.
Section 33-56-190. The Secretary of State Attorney General may enter into agreements with the appropriate authority of another state for the purpose of exchanging information with respect to charitable organizations, professional fundraising counsel, professional solicitors, and commercial co-venturers.
Section 33-56-200. The provisions of this chapter are severable. The unconstitutionality of one section or clause does not affect the constitutionality of the entire chapter."
L. Section 15-9-245 of the 1976 Code is amended to read:
"Section 15-9-245. (a)(A) Every foreign business or nonprofit corporation which is not authorized to do business in this State, by doing in this State, either itself or through an agent, any business, including any business activity for which authority need not be obtained as provided by Section 33-15-101, is considered to have designated the Secretary of State Attorney General as its agent upon whom process against it may be served in any action or proceeding arising in any court in this State out of or in connection with the doing of any business in this State.
(b)(B) Service of the process is made by delivering to and leaving with the Secretary of State Attorney General, or with any person designated by him to receive such service, duplicate copies of the process, notice, or demand. The Secretary of State Attorney General immediately shall cause one of the copies to be forwarded by certified mail, addressed to the corporation either at its registered office in the jurisdiction of its incorporation, its principal place of business in the jurisdiction, or at the last address of the foreign business or nonprofit corporation known to the plaintiff, in that order.
(c)(C) Proof of service must be by affidavit of compliance with this section and filed, together with a copy of the process, with the clerk of court in which the action or proceeding is pending. There must be filed with the affidavit of compliance the return receipt signed by the foreign business or nonprofit corporation or other official proof of delivery or, if acceptance was refused, there must be filed the original or a photostated or certified copy of the envelope with a notation by the postal authorities that acceptance was refused. If acceptance was refused, a copy of the notice and process, together with notice of the mailing by certified mail and of refusal to accept must be sent promptly to the foreign business or nonprofit corporation. If this section is complied with, the refusal to accept delivery of the certified mail or to sign the return receipt shall not affect the validity of the service, and the foreign corporation refusing to accept the certified mail must be charged with knowledge of the contents thereof.
(d)(D) Service under this section may be made also by delivery of a copy of the process to any foreign business or nonprofit corporation outside the State. Proof of the delivery must be made by affidavit of the person making delivery, and the affidavit must be filed with the clerk of court in which the action or proceeding is pending.
(e)(E) The Secretary of State Attorney General shall charge a fee of ten dollars for the service.
(f)(F) This section does not prescribe the only means, or necessarily the required means, of serving a foreign business or nonprofit corporation not authorized to do business in this State."
M. Sections 6-11-120, 6-11-1630, and 6-11-1640 of the 1976 Code are amended to read:
Section 6-11-1620. (A) Within ninety days after the effective date of this article, and before December thirty-first of every even-numbered year thereafter, the governing bodies of all special purpose districts in this State must notify the Secretary of State Attorney General and the auditor of the county in which the special purpose district is located of their existence.
(B) The notification required by subsection (A) of this section must substantially conform to the following form and all portions of the form must be completed if applicable:
SPECIAL PURPOSE DISTRICT
NOTIFICATION FORM
1. _____________________________________________________________________
Legal Name of Special Purpose District
2. _____________________________________________________________________
Permanent address (If no permanent address,
telephone number, name, and address of agent)
3. _____________________________________________________________________
Services provided
4. _____________________________________________________________________
_____________________________________________________________________
General description of geographical boundary of service area
(Attach legal description)
5. _____________________________________________________________________
Citation of Statutory Authority (Please include copy)
6. _____________________________________________________________________
Date of Origin
7. _____________________________________________________________________
Tax Rate or Fee Charged
8. Names of Members of Governing Body and terms of office:
_______________________________________ _________________________________
_______________________________________ _________________________________
9. _____________________________________________________________________
Method of selecting members of governing body
10. Financial information for prior fiscal year (Please identify year):
_____________________________________________________________________
Total revenues by source including investment earnings
_____________________________________________________________________
Total expenditures
_____________________________________________________________________
Total indebtedness (indicate bonded or otherwise)
_____________________________________________________________________
Total investments (individual amounts, location, rate of interest)
11. _____________________________________________________________________
Person Completing this Form
__________________________________ _________________________________
Title Date
(C) The auditor of the county in which the special purpose district is located must inspect and sign the notification forms.
Section 6-11-1630. (A) Notification as provided in Section 6-11-1620 must be forwarded to the Secretary of State Attorney General and the auditor of the county in which the district is located within ninety days after the election of the governing body of a special purpose district created after the effective date of this article.
(B) The Secretary of State Attorney General shall issue each even-numbered year a directory of active and inactive special purpose districts in the State. The directory shall contain all information provided by the districts as required by the notification form. Inactive districts must be deleted after being listed for two consecutive report cycles. This directory must be mailed to all special purpose districts and general purpose governments in the State.
(C) If the governing body of a public service district fails to report to the Secretary of State Attorney General as provided by this article, the Secretary Attorney General may determine that the district is nonfunctioning and notify the governing body of the county or municipality with a certified copy of the letter to any of the last known members of the governing body of the public service district. Thereafter, the district may not be registered with the Secretary of State Attorney General and it must be declared inactive.
(D) The governing body of any county or municipality so notified shall withhold any fees, taxes, or interest thereon collected for any special purpose district by the municipality or county until the special purpose district complies with the notification requirements of this article.
Section 6-11-1640. (A) The Secretary of State Attorney General shall investigate failures of special purpose districts to disclose information required by this article. Where special failures are a result of good faith efforts to file reports, the Secretary of State Attorney General may grant extensions to districts not to exceed sixty days.
(B) When the reports required by this article have not been produced because of a volitional refusal by the governing body of a special purpose district, the Secretary of State Attorney General or the county auditor may seek a writ of mandamus in the county in which the special purpose district is located to compel the production of the reports.
N. Sections 39-15-420, 39-15-430, 39-15-440, and 39-15-450 of the 1976 Code are amended to read:
"Section 39-15-420. Any person desiring to avail himself of the benefits of this article may make application to the Secretary of State Attorney General, and shall file with the Secretary Attorney General a true copy and description of such identifying mark or brand, which, if entitled thereto under the provisions of this article shall be filed and recorded by the Secretary Attorney General in a book to be provided and kept by him for that purpose and the name of the owner of such brand or mark shall be likewise entered into such record and the Secretary Attorney General shall then assign or designate a permanent registered number to the owner of such brand or mark, such numbers to be assigned progressively as marks and brands are received and recorded. The registered number so assigned shall then become a part of the registered brand or mark and shall plainly and distinctly be made to appear on such field boxes, crates, receptacles and containers, together with the identifying mark or brand referred to in Section 39-15-410. The Secretary of State Attorney General shall determine if such brand or mark so applied for is not a duplication of any brand or mark previously recorded by him or does not so closely resemble any such brand or mark as to be misleading or deceiving. If the brand or mark applied for does so resemble or is such a duplication of a previously recorded brand or mark as to be misleading or deceiving, the application shall be denied and the applicant may file some other brand or mark in the manner described above.
Section 39-15-430. Such application for filing and recording shall be accompanied by a fee of two dollars and thereupon, if consistent with the provisions of this article, the Secretary of State Attorney General shall issue to the person applying for registration and recordation of such mark or brand a certificate of such recordation and of the registered number assigned thereto and thereafter he shall issue such certificates, in any number, to any person applying therefor, upon the payment of a fee of one dollar for each certificate so issued. Any such certificate shall, in all proceedings in all the courts of this State, be taken and held as proof of the adoption and recordation of such identifying mark or brand.
Section 39-15-440. The owner of any such registered mark or brand may transfer, release or sell it by an instrument in writing evidencing such transfer, release or sale and, upon application to the Secretary of State Attorney General when such mark or brand is registered for the recordation of such instrument in writing and upon the filing of it with the Secretary and the payment of a fee of two dollars, the Secretary Attorney General shall cause such instrument of transfer, release or sale to be placed on record in a book provided and kept by him for that purpose and certificates of such transfer, upon application therefor, shall be issued by him in like manner, upon the payment of like fees, as provided for the issuance of certificates under the provisions of Section 39-15-430.
Section 39-15-450. The presence of such identifying mark or brand on any field box, crate, container or receptacle, whenever a copy or description thereof shall have been filed and recorded in the office of the Secretary of State Attorney General as provided in Section 39-15-420, shall, in any court and in any proceedings in this State, be prima facie evidence of the ownership of such boxes, crates, containers or receptacles by the person in whose name such mark or brand may have been recorded, provided that such mark or brand shall bear the registered number provided for in Section 39-15-420."
O. Section 39-15-490 of the 1976 Code is amended to read:
"Section 39-15-490. The refusal of any person in possession thereof to deliver any field box, crate, container or receptacle so marked or branded and registered as provided in this article to the registered owner thereof or his duly authorized agent, upon the demand of such registered owner or authorized agent, when such demand is accompanied with a display of the certificate of recordation and number thereof, as furnished to the registered owner by the Secretary of State Attorney General, shall be prima facie evidence in any court of this State of a fraudulent intent to convert such field box, crate, container or receptacle to the use of the person so in possession thereof and to deprive the registered owner thereof and any person convicted of a violation of the provisions of this section shall be subject to the penalty provided in Section 39-15-480."
P. Article 11, Chapter 15, Title 39 of the 1976 Code is amended to read:
Section 39-15-1105. As used in this article:
(1) "Applicant" means the person filing an application for registration of a mark under this article and the legal representatives, successors, or assigns of that person.
(2) "Dilution" means the lessening of the capacity of a registrant's mark to identify and distinguish goods or services, regardless of the presence or absence of competition between the parties or the likelihood of confusion, mistake, or deception.
(3) "Mark" includes a trademark or service mark entitled to registration under this article whether registered or not.
(4) "Person" and any other word or term used to designate the applicant or other party entitled to a benefit or privilege or rendered liable under the provisions of this article includes a juristic person, as well as a natural person. The term "juristic person" includes a firm, partnership, corporation, union, association, or other organization capable of suing and being sued in a court of law.
(5) "Registrant" means the person to whom the registration of a mark under this article is issued and the legal representatives, successors, or assigns of that person.
(6) "Secretary" means the Secretary of State or the designee of the secretary charged with the administration of this article.
(7)(6) "Service mark" means a word, name, symbol, or device or any combination of these used by a person to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown. Titles, character names used by a person, and other distinctive features of radio or television programs, motion pictures, newspapers, or magazines may be registered as service marks notwithstanding that they or the programs, may advertise the goods of the sponsor.
(8)(7) "Trade name" means a name used by a person to identify a business or vocation of that person.
(9)(8) "Trademark" means a word, name, symbol, or device or any combination of these used by a person to identify and distinguish the goods of that person, including a unique product, from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown. "Trademark" also means, but is not limited to, the symbol, emblem, sign, insignia, or any combination thereof, of the United States Olympic Committee or the International Olympic Committee.
(10)(9) "Use" means the bona fide use of a mark in the ordinary course of trade and not made merely to reserve a right in a mark. For the purposes of this article, a mark is considered in use:
(a) on goods when it is placed in any manner on the:
(i) goods or other containers or the displays associated with the goods or containers;
(ii) tags or labels affixed to the goods or containers; or
(iii) if the nature of the goods makes placement impracticable, then on documents associated with the goods or other sale and the goods are sold or transported in commerce in this State; and
(b) on services when it is used or displayed in the sale or advertising of services and the services are rendered in this State. For purposes of this article, a mark is considered "abandoned" when:
(i) its use has been discontinued with intent not to resume that use. Intent not to resume may be inferred from circumstances. Nonuse for two consecutive years constitutes prima facie evidence of abandonment; or
(ii) a course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark.
Section 39-15-1110. (A) A mark by which the goods or services of an applicant for registration may be distinguished from the goods or services of others may not be registered if the mark:
(1) consists of or includes immoral, deceptive, or scandalous matter;
(2) consists of or includes matter which may disparage or falsely suggest a connection with or bring into contempt or disrepute a person, living or dead, an institution, belief, or national symbol;
(3) consists of or includes the flag or coat of arms or other insignia of the United States, a state or municipality, or a foreign nation or a simulation of the flag, coat of arms, or other insignia of any of these;
(4) consists of or includes the name, signature, or portrait identifying a particular living individual, except by the individual's written consent;
(5) consists of a mark which:
(a) when used on or in connection with the goods or services of the applicant is merely descriptive or deceptively misdescriptive of them;
(b) when used on or in connection with the goods or services of the applicant is primarily geographically descriptive or deceptively misdescriptive of them; or
(c) is primarily merely a proper name or surname;
(6) consists of or includes a mark which so resembles a mark registered in this State or a mark or trade name previously used by another person in this State and not abandoned as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake or to deceive.
(B) However, nothing in subsection (A)(5) prevents the registration of a mark used by the applicant which has become distinctive of the applicant's goods or services. The secretary Attorney General may accept as evidence that the mark has become distinctive, as used on or in connection with the applicant's goods or services, by proof of continuous use as a mark by the applicant in this State for the five years before the date on which the claim of distinctiveness is made.
Section 39-15-1115 (A) Subject to the limitations set forth in this article, a person who uses a mark may file in the office of the secretary Attorney General, in a manner complying with the requirements of the secretary Attorney General, an application for registration of that mark setting forth, but not limited to, this information:
(1) the name and business address of the person applying for the registration; and if a corporation, the state of incorporation or if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the secretary Attorney General;
(2) the goods or services on or in connection with which the mark is used, the mode or manner in which the mark is used on or in connection with these goods or services, and the class in which these goods or services fall;
(3) the date when the mark was first used anywhere and the date when it was first used in this State by the applicant or a predecessor in interest;
(4) a statement that the applicant is the owner of the mark, that the mark is in use, and that to the knowledge of the person verifying the application no other person has registered either federally or in this State, or has the right to use this mark in its identical form or in near resemblance as to be likely, when applied to the goods or services of another person, to cause confusion or to cause mistake or to deceive.
(B) The secretary Attorney General may also require a statement whether an application to register the mark or portions or a composite of the mark has been filed by the applicant or a predecessor in interest in the United States Patent and Trademark Office; and if so, the applicant shall provide full particulars including the filing date and serial number of each application, the status of the application, and if an application was finally refused registration or has otherwise not resulted in a registration, the reasons for this.
(C) The secretary Attorney General also may require that a drawing of the mark, complying with requirements as the secretary may specify, accompany the application.
(D) The application must be signed and verified by oath, affirmation, or declaration subject to perjury laws by the applicant or by a member of the firm or an officer of the corporation or association applying.
(E) The application must be accompanied by three specimens showing the mark as actually used and accompanied by the application fee payable to the Secretary of State Attorney General.
Section 39-15-1120. (A) Upon the filing of an application for registration and payment of the application fee, the secretary Attorney General may examine the application for conformity with this article.
(B) The applicant shall provide additional pertinent information requested by the secretary Attorney General including a description of a design mark and may make or authorize the secretary Attorney General to make amendments to the application as may be reasonably requested by the secretary Attorney General or considered by the applicant to be advisable to respond to a rejection or objection.
(C) The secretary Attorney General may require the applicant to disclaim an unregisterable component of a mark otherwise registerable, and an applicant may voluntarily disclaim a component of a mark sought to be registered. No disclaimer may prejudice or affect the applicant's or registrant's rights then existing or thereafter arising in the disclaimed matter or the applicant's or registrant's rights of registration on another application if the disclaimed matter is or becomes distinctive of the applicant's or registrant's goods or services.
(D) Amendments may be made by the secretary Attorney General to the application submitted by the applicant with the applicant's consent, or the secretary Attorney General may require that the applicant submit a fresh application.
(E) If the applicant is found not to be entitled to registration, the secretary Attorney General shall notify the applicant of this and of the reasons registration was denied. The applicant must be given a reasonable period of time specified by the secretary Attorney General in which to reply or to amend the application, after which the application must be reexamined. This procedure may be repeated until the secretary Attorney General finally refuses registration of the mark or the applicant fails to reply or amend within the specified period, at which time the application is deemed to have been abandoned.
(F) If the secretary Attorney General finally refuses registration of the mark, the applicant may appeal the decision to the circuit court in Richland County in accordance with the Administrative Procedures Act without costs to the secretary Attorney General.
(G) In the instance of applications concurrently being processed by the secretary Attorney General seeking registration of the same or confusingly similar marks for the same or related goods or services, the secretary Attorney General shall grant priority to the applications in order of filing. If a prior-filed application is granted a registration, the other application or applications must be rejected. A rejected applicant may bring an action for cancellation of the registration upon grounds of prior or superior rights to the mark in accordance with Section 39-15-1145 of this article.
Section 39-15-1125. (A) Upon compliance by the applicant with the requirements of this article, the secretary Attorney General shall issue a certificate of registration to the applicant under the signature of the secretary Attorney General and the seal of the State. The certificate shall show the name and business address and if a corporation, the state of incorporation or if a partnership, the state in which the partnership is organized and the names of the general partners, as specified by the secretary Attorney General, of the person claiming ownership of the mark, the date claimed for the first use of the mark anywhere, the date claimed for the first use of the mark in this State, the class of goods or services, a description of the goods or services on or in connection with which the mark is used, a reproduction of the mark, the registration date, and the term of the registration.
(B) A certificate of registration issued by the secretary Attorney General under this section or a copy of a certificate certified by the secretary Attorney General is admissible in evidence as competent and sufficient proof of the registration of the mark in an action or judicial proceeding in any court of this State.
Section 39-15-1130. (A) A registration of a mark is effective for five years from the date of registration, and upon application filed within six months before the expiration of the registration in a manner complying with the requirements of the secretary Attorney General, the registration may be renewed for five years. A renewal fee payable to the secretary Attorney General shall accompany the application for renewal of the registration. A registration may be renewed for successive periods of five years as provided for in this subsection.
(B) An application for renewal under this article, whether of a registration made under this article or of a registration effected under any prior law, shall include a verified statement that the mark has been and is still in use and a specimen showing actual use of the mark on or in connection with the goods or services.
Section 39-15-1135. (A) A mark and its registration under this article is assignable with the good will of the business in which the mark is used or with that part of the good will of the business connected with the use of and symbolized by the mark. Assignment is by instruments in writing properly executed and may be recorded with the secretary Attorney General upon the payment of the recording fee payable to the secretary Attorney General who upon recording of the assignment shall issue in the name of the assignee a new certificate for the remainder of the term of the registration or of the last renewal of the registration. An assignment of a registration under this article is void against a subsequent purchaser for valuable consideration without notice, unless it is recorded with the secretary Attorney General within three months after the date of the assignment or before the subsequent purchase.
(B) A registrant or applicant effecting a change of the name of the person to whom the mark was issued or for whom an application was filed may record a certificate of change of name of the registrant or applicant with the secretary upon payment of the recording fee. The secretary Attorney General may issue in the name of the assignee a certificate of registration of an assigned application. The secretary Attorney General may issue in the name of the assignee a new certificate or registration for the remainder of the term of the registration or last renewal of the registration.
(C) Other instruments which relate to a mark registered or application pending pursuant to this article including, but not limited to, licenses, security interests, or mortgages, may be recorded in the discretion of the secretary Attorney General if the instrument is in writing and properly executed.
(D) Acknowledgement is prima facie evidence of the execution of an assignment or other instrument, and when recorded by the secretary Attorney General, the record is prima facie evidence of execution.
(E) A photocopy of an instrument referred to in subsections (A), (B), or (C) must be accepted for recording if it is certified to be a true and correct copy of the original by a party to the instrument or their successors.
Section 39-15-1140. The secretary Attorney General shall keep for public examination a record of all marks registered or renewed under this article and a record of all documents recorded pursuant to Section 39-15-1135.
Section 39-15-1145. The secretary Attorney General shall cancel from the register, in whole or in part:
(1) a registration concerning which the secretary Attorney General receives a voluntary request for cancellation of it from the registrant or the assignee of record;
(2) a registration granted under this article and not renewed in accordance with this article;
(3) a registration concerning which a court of competent jurisdiction finds that the:
(a) registered mark has been abandoned;
(b) registrant is not the owner of the mark;
(c) registration was granted improperly;
(d) registration was obtained fraudulently;
(e) mark is or has become the generic name for the goods or services or a portion of the goods or services for which it has been registered;
(f) registered mark is so similar, as to be likely to cause confusion or mistake or to deceive, to a mark registered by another person in the United States Patent and Trademark Office before the date of the filing of the application for registration by the registrant under this article, and not abandoned; however, if the registrant proves that the registrant is the owner of a concurrent registration of a mark in the United States Patent and Trademark Office covering an area including this State, the registration under this article may not be canceled for that area of the State; or
(4) a registration when a court of competent jurisdiction orders cancellation of the registration on any ground.
Section 39-15-1150. (A) The general classification of goods and services provided for in subsections (B) and (C) are established for convenience of administration of this article but does not limit or extend the applicant's or registrant's rights, and a single application for registration of a mark may include goods upon which or services with which the mark is actually being used indicating the appropriate class or classes of goods or services. When a single application includes goods or services which fall within multiple classes, the secretary Attorney General may require payment of a fee for each class. To the extent practical the classification of goods and services shall conform to the classification adopted by the United States Patent and Trademark Office.
(B) The following is the international schedule of classes of goods:
(1) chemical products used in industry, science, photography, agriculture, horticulture, forestry; artificial and synthetic resins; plastics in the form of powders, liquids, or pastes for industrial use; manures (natural and artificial); fire extinguishing compositions; tempering substances and chemical preparations for soldering; chemical substances for preserving foodstuffs, tanning substances, adhesive substances used in industry;
(2) paints, varnishes, lacquers; preservatives against rust and against deterioration of wood, coloring matters, dyestuffs, mordants, natural resins; metals in foil and powder form for painters and decorators;
(3) bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices;
(4) industrial oils and greases (other than oils and fats and essential oils); lubricants; dust laying and absorbing compositions; fuels (including motor spirit) and illuminants; candles, tapers, night lights, and wicks;
(5) pharmaceutical, veterinary, and sanitary substances; infants' and invalids' foods; plasters, material for bandaging; material for stopping teeth, dental wax, disinfectants; preparations for killing weeds and destroying vermin;
(6) unwrought and partly wrought common metals and their alloys, anchors, anvils, bells, rolled and cast building materials, rails and other metallic materials for railway tracks, chains (except driving chains for vehicles), cables and wires (nonelectric), locksmiths' work; metallic pipes and tubes; safes and cash boxes, steel balls; horseshoes; nails and screws; other goods in nonprecious metal not included in other classes; ores;
(7) machines and machine tolls; motors (except for land vehicles); machine couplings and belting (except for land vehicles); large size agricultural implements; incubators;
(8) hand tools and instruments; cutlery, forks, and spoons; side arms;
(9) scientific, nautical, surveying and electrical apparatus and instruments (including wireless), photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), life-saving and teaching apparatus and instruments; coin or counterfreed apparatus; talking machines; cash registers; calculating machines; fire extinguishing apparatus;
(10) surgical, medical, dental, and veterinary instruments and apparatus (including artificial limbs, eyes and teeth);
(11) installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply, and sanitary purposes;
(12) vehicles; apparatus for locomotion by land, air, or water;
(13) firearms; ammunition and projectiles; explosive substances; fireworks;
(14) precious metals and their alloys and goods in precious metals or coated therewith (except cutlery, forks, and spoons); jewelry, precious stones, horological and other chronometric instruments;
(15) musical instruments (other than talking machines and wireless apparatus);
(16) paper and paper articles, cardboard and cardboard articles; printed matter, newspaper and periodicals, books; bookbinding material; photographs; stationery, adhesive materials (stationery); artists' materials; paint brushes; typewriters and office requisites (other than furniture); instructional and teaching material (other than apparatus); playing cards; printers' type and cliches (stereotype);
(17) gutta percha, india rubber, balata and substitutes, articles made from these substances and not included in other classes; plastics in the form of sheets, blocks and rods, being for use in manufacture, materials for packing, stopping, or insulating; asbestos, mica and their products; hose pipes (nonmetallic);
(18) leather and imitations of leather, and articles made from these materials and not included in other classes; skins, hides; trunks and traveling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery;
(19) building materials, natural and artificial stone, cement, lime, mortar, plaster and gravel; pipes of earthenware or cement; roadmaking materials; asphalt, pitch and bitumen, portable buildings; stone monuments; chimney pots;
(20) furniture, mirrors, picture frames; articles (not included in other classes) of wood, cork, reeds, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum, celluloid, substitutes for all these materials, or of plastics;
(21) small domestic utensils and containers (not of precious metals, or coated therewith); combs and sponges, brushes (other than paint brushes); brushmaking materials, instruments and material for cleaning purposes, steel wool; unworked or semi-worked glass (excluding glass used in building); glassware, porcelain and earthenware, not included in other classes;
(22) ropes, string, nets, tents, awnings, tarpaulins, sails, sacks, padding and stuffing materials (hair, kapok, feathers, seaweed, etc.); raw fibrous textile materials;
(23) yarns, threads;
(24) tissues (piece goods); bed and table covers; textile articles not included in other classes;
(25) clothing (including boots, shoes, and slippers);
(26) lace and embroidery, ribands, and braid; buttons, press buttons, hooks and dyes, pins and needles; artificial flowers;
(27) carpets, rugs, mats, and matting; linoleum and other materials for covering existing floors; wall hangings (nontextile);
(28) games and playthings; gymnastic and sporting articles (except clothing); ornaments and decorations for Christmas trees;
(29) meats, fish, poultry, and game; meat extracts; preserved, dried, and cooked fruits and vegetables; jellies, jams; eggs, milk, and other dairy products; edible oils and fats; preserves, pickles;
(30) coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes; flour and preparations made from cereals; bread, biscuits, cakes, pastry, and confectionery, ices; honey, treacle; yeast, baking powder; salt, mustard, pepper, vinegar, sauces, spices; ice;
(31) agricultural, horticultural, and forestry products and grains not included in other classes; living animals; fresh fruits and vegetables; seeds; live plants and flowers; foodstuffs for animals, malt;
(32) beer, ale, and porter; mineral and aerated waters and other nonalcoholic drinks; syrups and other preparations for making beverages;
(33) wines, spirits, and liqueurs;
(34) tobacco, raw, or manufactures; smokers' articles; matches.
(C) The following is the international schedule of classes of services:
(1) advertising and business;
(2) insurance and financial;
(3) construction and repair;
(4) communication;
(5) transportation and storage;
(6) material treatment;
(7) education and entertainment;
(8) miscellaneous.
Section 39-15-1155. A person who procures or who on behalf of another person procures the filing or registration of a mark in the office of the secretary Attorney General under the provisions of this article by knowingly making a false or fraudulent representation or declaration orally, in writing, or by any other fraudulent means is liable to pay all damages sustained in consequence of the filing or registration to be recovered in a court of competent jurisdiction by or on behalf of the party injured.
Section 39-15-1160. (A) Subject to Section 39-15-1180 and subsection (B) of this section, a person is liable in a civil action by the registrant for the remedies provided in Section 39-15-1170 if the person:
(1) uses without the consent of the registrant a reproduction, counterfeit, copy, or colorable imitation of a mark registered under this article in connection with the sale, distribution, offering for sale, or advertising of goods or services on or in connection with which this use is likely to cause confusion or mistake or to deceive as to the source of origin of these goods or services; or
(2) reproduces, counterfeits, copies, or colorably imitates a mark and applies the reproduction, counterfeit, copy, or colorable imitation to a label, sign, print, package wrapper, receptacle, or advertisement intended to be used on or in connection with the sale or other distribution in this State of these goods or services.
(B) Notwithstanding subsection (A) a person liable under subsection (A)(2) is not entitled to recover profits or damages unless the acts have been committed with the intent to cause confusion or mistake or to deceive.
Section 39-15-1165. (A) The owner of a mark which is famous in this State is entitled, subject to the principles of equity, to an injunction against another's use of a mark commencing after the registrant's mark becomes famous which causes dilution of the distinctive quality of the registrant's mark and to obtain other relief as is provided in this section. In determining whether a mark is famous, a court may consider, but is not limited to considering, these factors:
(1) the degree of inherent or acquired distinctiveness of the mark in this State;
(2) the duration and extent of use of the mark in connection with the goods and services;
(3) the duration and extent of advertising and publicity of the mark in this State;
(4) the geographical extent of the trading area in which the mark is used;
(5) the channels of trade for the goods or services with which the registrant's mark is used;
(6) the degree of recognition of the registrant's mark in its and in the other's trading areas and channels of trade in this State; and
(7) the nature and extent of use of the same or similar mark by third parties.
(B) The registrant is entitled only to injunctive relief in this State in an action brought under this section unless the subsequent user wilfully intended to trade on the registrant's reputation or to cause dilution of the owner's mark. If wilful intent is proven, the owner is entitled to the remedies set forth in this article, subject to the discretion of the court and the principles of equity.
Section 39-15-1170. (A) An owner of a mark registered under this article may bring an action to enjoin the manufacture, use, display, or sale of a counterfeit or imitation of the registered mark, and a court of competent jurisdiction may grant an injunction to restrain the manufacture, use, display, or sale as the court considers just and reasonable and may require a defendant to pay the owner profits derived from or damages suffered due to the wrongful manufacture, use, display, or sale or to pay both profits and damages. The court also may order that the counterfeit or imitation in the possession or under the control of a defendant be delivered to an officer of the court or to the complainant to be destroyed. The court in its discretion may enter judgment for an amount not to exceed three times the profits and damages or reasonable attorneys' fees of the prevailing party, or both, in cases where the court finds the other party committed the wrongful acts with knowledge or in bad faith or otherwise according to the circumstances of the case.
(B) The enumeration of a right or remedy in this article does not affect a registrant's right to prosecute under any penal law of this State.
Section 39-15-1175. (A) An action to require cancellation of a mark registered pursuant to this article or an appeal from a refusal of the secretary Attorney General to register a mark pursuant to this article must be brought in the circuit court. In an appeal the proceeding must be based solely upon the record before the secretary Attorney General. In an action for cancellation the secretary Attorney General may not be made a party to the proceeding but must be notified of the filing of the complaint by the clerk of the court in the county in which it is filed and must be given the right to intervene in the action.
(B) In an action brought against a nonresident registrant, service may be effected upon the secretary Attorney General as agent for service of the registrant in accordance with the procedures established for service upon nonresident corporations and business entities under the Rules of Civil Procedure.
Section 39-15-1180. Nothing in this article may adversely affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law.
Section 39-15-1185. The secretary Attorney General shall charge a fee of fifteen dollars for an original application, a fee of five dollars for a renewal application, and a fee of three dollars for recording an assignment. The fees payable under this article are not refundable.
Section 39-15-1190. (A) For purposes of this section:
(1) "Counterfeit mark" means a mark that is:
(a) identical to, or substantially indistinguishable from, a registered mark or unregistered mark;
(b) used in connection with the sale or offering for sale of goods or services that are identical to, or substantially indistinguishable from, the goods or services with which the registered or unregistered mark is identified;
(c) likely to cause confusion, mistake, or deception if used; and
(d) not authorized by the owner of the registered or unregistered mark.
(2) "Registered mark" means a mark that is registered on the principal register of the United States Patent and Trademark Office or with the South Carolina Secretary of State.
(3) "Retail sales value" means the value computed by multiplying the number of items having a counterfeit mark used on them or in connection with them by the retail price at which a similar item having a mark used on it or in connection with it, the use of which is authorized by the owner, is offered for sale to the public.
(4) "Unregistered mark" means a symbol, sign, emblem, insignia, trademark, trade name, or word protected by the federal Amateur Sports Act of 1978, Title 36 U.S.C. Section 380.
(B)(1) It is unlawful for a person knowingly and wilfully to transport, transfer, distribute, sell, or otherwise dispose of, or to possess with intent to transfer, transport, distribute, sell, or otherwise dispose of, an item having a counterfeit mark on it or in connection with it.
(a) A person who knowingly and wilfully violates this subsection with respect to goods or services having a retail sales value of less than fifty thousand dollars is guilty of the offense of distribution of counterfeit marks and, upon conviction, must be punished as follows:
(i) if the goods or services have a retail sales value of two thousand dollars or less, the person is guilty of a misdemeanor and must be fined not more than one thousand dollars or imprisoned not more than one year, or both;
(ii) if the goods or services have a retail sales value of more than two thousand dollars but less than ten thousand dollars, the person is guilty of a felony and must be fined not more than ten thousand dollars or imprisoned not more than three years, or both;
(iii) if the goods or services have a retail sales value of ten thousand dollars or more, but less than fifty thousand dollars, the person is guilty of a felony and must be fined not more than twenty thousand dollars or imprisoned not more than five years, or both;
(iv) for a second or subsequent conviction of the offenses described in subitem (a), without regard to the retail sales value of the goods or services, the person is guilty of a felony and must be fined not less than one thousand dollars or more than fifty thousand dollars or imprisoned not more than ten years, or both.
(b) A person who knowingly and wilfully violates the provisions of this subsection with respect to goods or services having a retail sales value of fifty thousand dollars or more is guilty of the offense of trafficking in counterfeit marks. A person who knowingly and wilfully commits the offense of trafficking as described in this subitem is guilty of a felony and, upon conviction, must be punished as follows:
(i) for a first offense, fined not less than ten thousand dollars or more than twenty-five thousand dollars or imprisoned not more than five years, or both;
(ii) for a second or subsequent offense, fined not less than twenty thousand dollars or more than fifty thousand dollars or imprisoned not more than ten years, or both.
(2) The possession, custody, or control of more than twenty-five items having a counterfeit mark used on them or in connection with them is prima facie evidence of a violation of this section.
(C) A person who knowingly and wilfully uses any object, tool, machine, or other device to produce or reproduce a counterfeit mark or knowingly and wilfully has possession, custody, or control of any object, tool, machine, or device with intent to produce or reproduce a counterfeit mark is guilty of producing or reproducing counterfeit marks and, upon conviction, must be punished as provided in subsection (B).
(D) Personal property, including any item, object, tool, machine, or device of any kind, employed as an instrumentality in the commission of or in aiding or abetting in the commission of a violation of subsection (B) or (C), is considered contraband and is subject to seizure and forfeiture in the same manner as other property used in the commission of specified criminal offenses as provided by law.
(E) For purposes of enforcing this section, investigators in the office of the Secretary of State have statewide jurisdiction. These investigators may conduct investigations independently or may assist local law enforcement agencies in their investigations and may initiate and carry out, in coordination with local law enforcement agencies, investigations of violations of this section.
(F) The Secretary of State Attorney General may refer available evidence concerning violations of this section to the appropriate solicitor who may, with or without the reference, institute the appropriate criminal proceedings.
(G) The Secretary of State Attorney General also may refer available evidence concerning violations of this section to the Department of Revenue for purposes of determining the obligations of the violators of this section pursuant to state income and other taxation laws.
(H) The provisions of this section do not apply to persons who own, rent, or manage premises occupied by retailers unless that person had actual knowledge or actively participated in a violation of this section.
Section 39-15-1195. (A) The following property is subject to seizure by and forfeiture to any law enforcement agency upon violation of Section 39-15-1190:
(1) all items bearing the counterfeit mark;
(2) all personal property that is employed or used in connection with a violation of Section 39-15-1190 including, but not limited to, any items, objects, tools, machines, equipment, or instrumentalities of any kind;
(3) all conveyances including, but not limited to, trailers, aircraft, motor vehicles, and watergoing vessels which are used unlawfully to conceal, contain, or transport or facilitate the unlawful concealment, possession, containment, manufacture, or transportation of counterfeit marks;
(4) all books, records, computers, and data that are used or intended for use in the production, manufacture, sale, or delivery of items bearing a counterfeit mark or services identified by a counterfeit mark; and
(5) all monies, negotiable instruments, balances in deposit or other accounts, securities, or other things of value furnished or intended to be furnished by any person used to engage in a violation or to further a violation of Section 39-15-1190.
(B) Property subject to forfeiture pursuant to this section may be seized by the department having authority upon a warrant issued by a court having jurisdiction over the property. Seizure without process may be made if:
(1) the seizure is incident to an arrest or a search pursuant to a search warrant or an inspection pursuant to an administrative inspection warrant;
(2) the property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding based upon this section;
(3) the department has probable cause to believe that the property is directly or indirectly dangerous to an individual's health or safety; or
(4) the department has probable cause to believe that the property was used or is intended to be used in violation of Section 39-15-1190.
(C) If a seizure is made pursuant to subsection (B), proceedings pursuant to Section 44-53-530 regarding forfeiture and disposition must be instituted within a reasonable time.
(D) Property taken or detained pursuant to this section is not subject to replevin but is considered to be in the custody of the department making the seizure, subject only to the orders of the court having jurisdiction over the forfeiture proceedings.
(E) For the purposes of this section, when the seizure of property subject to seizure is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure.
(F) Law enforcement agencies seizing property pursuant to this section shall take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. Monies seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the monies to be of an evidentiary nature and provides for security in another manner.
(G) When property, conveyances, monies, negotiable instruments, securities, or anything else of value is seized pursuant to the provisions of subsection (A), the law enforcement agency making the seizure, within ten days or a reasonable period of time after the seizure, shall submit a report to the appropriate prosecution agency.
(1) The report must provide the following information with respect to the property seized:
(a) description;
(b) circumstances of seizure;
(c) present custodian and where the property is being stored or its location;
(d) name of owner;
(e) name of lienholder, if any; and
(f) seizing agency.
(2) If the property is a conveyance, the report must include the:
(a) make, model, serial number, and year of the conveyance;
(b) person in whose name the conveyance is registered; and
(c) name of any lienholders.
(3) In addition to the report provided for in items (1) and (2), the law enforcement agency shall prepare for dissemination to the public, upon request, a report providing the following information:
(a) a description of the quantity and nature of the property and money seized;
(b) the seizing agency;
(c) the make, model, and year of a conveyance; and
(d) the law enforcement agency responsible for the property or conveyance seized.
(H)(1) An owner may apply to the court of common pleas for the return of an item seized pursuant to the provisions of this chapter. Notice of hearing or rule to show cause accompanied by a copy of the application must be directed to all persons and agencies entitled to notice as provided in Section 44-53-530. If the court denies the application, the hearing may proceed as a forfeiture hearing held pursuant to the provisions of Section 44-53-530.
(2) The court may return a seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence that the owner was not a consenting party to, or privy to, or did not have knowledge of, the use of the property that made it subject to seizure and forfeiture.
(3) The lien of an innocent person or other legal entity, recorded in public records, continues in force upon transfer of title of a forfeited item, and a transfer of title is subject to the lien, if the lienholder demonstrates to the court by a preponderance of the evidence that the lienholder was not a consenting party to, or privy to, or did not have knowledge of, the involvement of the property which made it subject to seizure and forfeiture.
(I) Property or conveyances seized by a law enforcement agency or department must not be used by officers for personal purposes."
Q. This SECTION takes effect upon approval by the Governor and upon ratification of an amendment to Section 7, Article VI of the Constitution of this State to remove the Secretary of State from the list of state officers that the Constitution requires to be elected as proposed to the qualified electors of this state at the 2008 General Election. One hundred eighty days after the effective date of this SECTION, the office of Secretary of State is abolished and the powers, duties, and functions of the office are devolved upon the Department of Commerce and the Attorney General as herein provided.
SECTION 7. A. Section 46-3-30 of the 1976 Code is amended to read:
"Section 46-3-30. The chief officer of the Department of Agriculture shall be denominated the Commissioner of Agriculture who shall be appointed by the Governor with the advice and consent of the Senate. The Commissioner shall have a competent knowledge of agriculture, manufacturing and general industries, commerce, chemistry and publicity. The commissioner may only be removed from office by the Governor as provided in Section 1-3-240(C)(1)."
B. Section 46-3-40 of the 1976 Code is repealed.
C. Section 1-3-240(C)(1) is amended by adding at the end:
"( ) Commissioner of Agriculture."
D. This SECTION takes effect upon approval by the Governor and upon ratification of an amendment to Section 7, Article VI of the Constitution of this State to remove the Commissioner of Agriculture from the list of state officers that the Constitution requires to be elected as proposed to the qualified electors of this state at the 2008 General Election.
SECTION 8. A. Section 1-3-240(C)(1) of the 1976 Code is amended by adding an appropriately numbered new item that reads:
"( ) Reserved State Inspector General;"
B. Title 1 of the 1976 Code is amended by adding:
Section 1-6-10. As used in this title:
(1) 'Agency' means an authority, board, branch, commission, committee, department, division, or other instrumentality of the executive department of state government, including administrative bodies. 'Agency' includes a body corporate and politic established as an instrumentality of the State. 'Agency' does not include:
(a) the judicial department of state government;
(b) the legislative department of state government; or
(c) a political subdivision.
(2) 'Business relationship' means dealings of a person with an agency seeking, obtaining, establishing, maintaining, or implementing:
(a) a pecuniary interest in a contract or purchase with the agency; or
(b) a license or permit requiring the exercise of judgment or discretion by the agency.
(3) 'Employee' means an individual who is employed by an agency on a full-time, part-time, temporary, intermittent, or hourly basis. 'Employee' includes an individual who contracts with an agency for personal services.
(4) 'Person' means:
(a) an individual, labor union and organization, joint apprenticeship committee, partnership, association, corporation, legal representative, mutual company, joint-stock company, trust, unincorporated organization, trustee, trustee in bankruptcy, receiver, or other legal or commercial entity located in part or in whole in the State or doing business in the State;
(b) the State and any agency or local subdivision of an agency; or
(c) a political subdivision.
(5) 'Political subdivision' includes a county, city, municipality, town, village, township, district, authority, special purpose district, school district, other local government entity, or other public corporation or entity whether organized and existing under charter or general law.
(6) 'Special state appointee' means a person who is:
(a) not a state officer or employee; and
(b) elected or appointed to an authority, a board, a commission, a committee, a council, a task force, or other body designated by any name that:
(i) is authorized by statute or executive order; and
(ii) functions in a policy or an advisory role in the executive, including the administrative, department of state government, including a separate body corporate and politic.
(7) 'State officer' means any of the following:
(a) the Governor;
(b) the Lieutenant Governor;
(c) the Secretary of State;
(d) the State Comptroller General;
(e) the State Treasurer;
(f) the Attorney General;
(g) the Superintendent of Education;
(h) the Commissioner of Agriculture;
(i) the Adjutant General; or
(j) the Director of the Department of Insurance.
Section 1-6-20. (A) There is hereby established the office of the State Inspector General which consists of the State Inspector General, who is the director of the office, and any staff of deputy inspectors general, investigators, auditors, and clerical employees employed by the State Inspector General as necessary to carry out the duties of the State Inspector General and as are authorized by statute. The State Inspector General shall fix the salaries of all staff subject to the approval of the Budget and Control Board and to the funds authorized in the annual general appropriation act.
(B) The State Inspector General is responsible for:
(1) deterring, detecting, preventing, and eradicating fraud, waste, misconduct, and abuse in the programs, operations, and contracting of all agencies of the state government;
(2) keeping the heads of agencies and the Governor fully informed about problems, errors, omissions, misconduct, and deficiencies relating to or arising out of the administration of programs, operations, and contracting in executive agencies;
(3) providing leadership, coordination, and control over satellite inspector general offices in designated agencies to ensure a coordinated and efficient administration of duties and use of staff;
(4) identifying and reporting prevention opportunities identified in their work, and for Office of Inspector General managers to refer these to appropriate officials;
(5) orienting public or private program personnel to systemic weaknesses in their programs and operations;
(6) reviewing and commenting on initial designs of new programs and operations;
(7) analyzing audits, investigations, and identify trends and patterns;
(8) developing education and training programs to build the capacity of public officials and others to operate efficiently, effectively, and ethically; and
(9) developing an effective means for tracking recommendations.
(C) The Governor shall appoint the State Inspector General with the advice and consent of the Senate for a term of six years. A Governor may reappoint the State Inspector General for an additional term. The State Inspector General's compensation must not be reduced during the State Inspector General's uninterrupted continued tenure in office.
(D) The State Inspector General:
(1) may only be removed from office by the Governor as provided in Section 1-3-240(C);
(2) must be an attorney or certified public accountant licensed in South Carolina; and
(3) is entitled to receive compensation set by the Governor and approved by the Budget and Control Board.
(E) Except for information declared confidential under this chapter, records of the office of the State Inspector General are subject to public inspection under Section 30-4-10 et seq.
(F) A state employee who makes a good faith allegation of wrongdoing to the office of the State Inspector General pursuant to or leading to an investigation by the office is entitled to all of the protections of and subject to the requirements of Chapter 27, Title 8.
Section 1-6-30. (A) The State Inspector General must:
(1) promote integrity and efficiency in executive agencies;
(2) initiate, supervise, and coordinate investigations authorized by this chapter;
(3) conduct joint investigations and projects with other oversight or law enforcement agencies;
(4) recommend policies and carry out other activities designed to deter, detect, and eradicate fraud, waste, abuse, mismanagement, and misconduct in state government;
(5) audit, inspect, evaluate, and investigate the activities, records, and individuals affiliated with contracts and procurements undertaken by an executive branch entity and any other official act or function of that governmental entity;
(6) receive complaints alleging a violation of a statute or rule relating to the purchase of goods or services by a current or former employee, state officer, special state appointee, or person who has a business relationship with an agency;
(7) recoup the cost of investigations from nongovernmental entities involved in willful misconduct;
(8) issue public reports;
(9) attend pertinent meetings held by executive branch agencies;
(10) refer matters to the heads of executive agencies whenever the State Inspector General determines that disciplinary or other administrative action is appropriate;
(11) provide advice to an agency on developing, implementing, and enforcing policies and procedures to prevent or reduce the risk of fraudulent or wrongful acts within the agency;
(12) recommend legislation to the Governor and General Assembly to strengthen public integrity laws;
(13) annually submit a report to the Governor, President Pro Tempore of the Senate, and Speaker of the House of Representatives detailing the State Inspector General's activities; and
(14) adopt rules, regulations, and procedures for administering the office of the State Inspector General.
(B) The Office of Inspector General and the State Inspector General are authorized and directed to take any lawful action that is necessary and proper for the discharge of their duties and responsibilities under this chapter.
Section 1-6-40. If the State Inspector General has reasonable cause to believe that a crime has occurred or is occurring, he must report the suspected crime to:
(1) the Governor; and
(2) any appropriate state or federal law enforcement agencies and prosecuting authorities that have jurisdiction over the matter.
Section 1-6-50. The State Inspector General has the following powers:
(A) As part of an investigation, the State Inspector General may:
(1) administer oaths;
(2) examine witnesses under oath;
(3) issue subpoenas and subpoenas duces tecum; and
(4) examine the records, reports, audits, reviews, papers, books, recommendations, contracts, correspondence, or any other documents maintained by an agency.
(B) The State Inspector General may apply to a circuit court for an order holding an individual in contempt of court if the individual refuses to give sworn testimony under a subpoena issued by the State Inspector General or otherwise disobeys a subpoena or subpoena duces tecum issued by the State Inspector General.
(C) The State Inspector General must prepare a report summarizing the results of every investigation. The report is confidential in accordance with Section 1-6-90.
Section 1-6-60. If the State Inspector General investigates and determines that there is specific and credible evidence that a current or former employee, a current or former state officer, a current or former special state appointee, or a person who has or had a business relationship with an agency has violated Chapter 8 of Title 13, the State Inspector General may file a complaint with the Ethics Commission and represent the State in any proceeding before the Ethics Commission.
Section 1-6-70. (A) This section applies if the State Inspector General finds evidence of misfeasance, malfeasance, nonfeasance, misappropriation, fraud, or other misconduct that has resulted in a financial loss to the State or in an unlawful benefit to an individual in the conduct of state business.
(B) If the State Inspector General finds evidence described in subsection (A), the State Inspector General shall certify a report of the matter to the Attorney General and provide the Attorney General with any relevant documents, transcripts, or written statements. Not later than one hundred eighty days after receipt of the report from the State Inspector General, the Attorney General may do one of the following:
(1) file a civil action, including an action upon a state officer's official bond, to secure for the State the recovery of funds misappropriated, diverted, missing, or unlawfully gained. Upon request of the Attorney General, the State Inspector General shall assist the Attorney General in the investigation, preparation, and prosecution of the civil action;
(2) inform the State Inspector General that the Attorney General does not intend to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained. If the Attorney General elects not to file a civil action, the Attorney General must return to the State Inspector General all documents and files initially provided by the State Inspector General; or
(3) inform the State Inspector General that the Attorney General is diligently investigating the matter and after further investigation may file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained. However, if more than three hundred sixty-five days have passed since the State Inspector General certified the report to the Attorney General and the Attorney General has neither filed a civil action or informed the State Inspector General that he does not intend to file a civil action, the Attorney General loses the authority to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained and must return to the State Inspector General all documents and files initially provided by the State Inspector General.
(C) The State Inspector General may file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained if the State Inspector General has found evidence described in subsection (A) and reported to the Attorney General under subsection (B) and:
(1) the Attorney General has elected under subsection (B)(2) not to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained; or
(2) under subsection (B)(3), more than three hundred sixty-five days have passed since the State Inspector General certified the report to the Attorney General under subsection (B) and the Attorney General has not filed a civil action.
(D) If the State Inspector General has found evidence described in subsection (A), the State Inspector General may institute forfeiture proceedings as allowed by law in a court having jurisdiction in a county where property derived from or realized through the misappropriation, diversion, disappearance, or unlawful gain of state funds is located, unless a prosecuting attorney has already instituted forfeiture proceedings against that property.
(E) If the Attorney General has elected not to file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained, the State Inspector General may file a civil action for the recovery of the funds in accordance with Section 1-6-70 of this chapter.
Section 1-6-80. (A) If the State Inspector General discovers evidence of criminal activity, the State Inspector General shall certify to the appropriate prosecuting attorney the following information:
(1) the identity of any person who may be involved in the criminal activity; and
(2) the criminal statute that the State Inspector General believes has been violated.
(B) In addition, the State Inspector General must provide the prosecuting attorney with any relevant documents, transcripts, or written statements. If the prosecuting attorney decides to prosecute the crime described in the information certified to the prosecuting attorney, or any other related crimes, the State Inspector General must cooperate with the prosecuting attorney in the investigation and prosecution of the case. Upon request of the prosecuting attorney, the State Inspector General may participate on behalf of the State in any resulting criminal trial.
Section 1-6-90. (A) If any individual discloses information alleging a violation of a state or federal statute, rule, regulation, or ordinance in good faith to the State Inspector General, the individual's identity is confidential and must not be disclosed to anyone other than the Governor, the staff of the Office of the State Inspector General, or an authority to whom the investigation is subsequently referred or certified, unless:
(1) the State Inspector General makes a written determination that it is in the public interest to disclose the individual's identity; or
(2) the individual consents in writing to disclosure of the individual's identity.
(B) After an investigation is completed and a report is issued as provided in Section 1-6-50(C), the investigative records of the State Inspector General are subject to public inspection under the provisions of Section 30-4-15 et seq. However, if an individual's identity is confidential as provided in subsection (A), the individual' s identity or any information that reasonably might lead to the discovery of the individual's identity must not be disclosed except as provided in subsection (A) or subsection (E).
(C) This subsection does not apply to a person who is a party to an action brought by the State Inspector General. Information received by the State Inspector General is not required to be produced in the course of discovery unless ordered by a court after a showing of particularized need and proof that the information requested cannot be obtained from any other source.
(D) Except as provided in subsection (E), a person commits the misdemeanor of unlawful disclosure of confidential information if he knowingly or intentionally discloses:
(1) confidential information or records; or
(2) the identity of a person whose identity is confidential under subsection (A).
(E) A person may disclose confidential information, records, or an individual's identity that is confidential under subsection (A) if the Governor authorizes the disclosure of this information in the public interest."
SECTION 9. Section 1-30-10(A) of the 1976 Code is amended by adding at the end:
"20. Department of Administration"
SECTION 10. A. Chapter 30, Title 1 of the 1976 Code is amended by adding:
"Section 1-30-125. (A) Effective January 1, 2009, the following offices, divisions, or components of the State Budget and Control Board, Office of the Governor, or other agencies are transferred to, and incorporated into, the Department of Administration, a department of the executive branch of state government headed by a director appointed by the Governor as provided in Section 1-30-10(B)(1)(i) except that this appointment must be upon the advice and consent of the Senate:
(1) Division of General Services including Facilities Management, Business Services together with Fleet Management, and Property Services;
(2) Office of Human Resources and Office of Research and Statistics of the Budget and Analysis Division;
(3) Office of Executive Policy and Programs, except for the State Ombudsman and Children's Services programs which are contained within this office;
(4) the State Energy Office as established by Section 48-52-410;
(5) Office of Economic Opportunity;
(6) Developmental Disabilities Council;
(7) Continuum of Care as established by Section 20-7-5610;
(8) Children's Foster Care as established by Section 20-7-2379;
(9) Veterans Affairs as established by Section 25-11-10;
(10) Commission on Women as established by Section 1-15-10;
(11) Victims Assistance as established by Article 13, Chapter 3, Title 16; and
(12) Small and Minority Business as established by Section 11-35-5270.
(B) The Department of Administration shall, during the absence of the Governor from Columbia, be placed in charge of the records and papers in the executive chamber. He shall keep in Columbia all the books, records and papers belonging thereto. "
B. Where the provisions of this act transfer offices, or portions of offices, of the Budget and Control Board, Office of the Governor, or other agencies to the new Department of Administration, the employees, authorized appropriations, and assets and liabilities of the transferred offices are also transferred to and become part of the Department of Administration. All classified or unclassified personnel employed by these offices on the effective date of this act, either by contract or by employment at will, shall become employees of the Department of Administration, with the same compensation, classification, and grade level, as applicable. The Budget and Control Board shall cause all necessary actions to be taken to accomplish this transfer in accordance with state laws and regulations.
Regulations promulgated by these transferred offices as they formerly existed under the Budget and Control Board, Office of the Governor, or other agencies are continued and are considered to be promulgated by these offices under the newly created Department of Administration.
The Code Commissioner is directed to change or correct all references to these offices of the Budget and Control Board in the 1976 Code, Office of the Governor, or other agencies to reflect the transfer of them to the Department of Administration. References to the names of these offices in the 1976 Code or other provisions of law are considered to be and must be construed to mean appropriate references. This authority shall not be construed to remove any authority from the Budget and Control Board for approval of statewide policies, procedures, regulations, rates and fees, or specific actions requiring board approval.
SECTION 11. Chapter 3, Title 1 of the 1976 Code is amended by adding:
Section 1-3-300. It is the intent of the General Assembly to create an instrumentality that provides leadership and direction for the use of information technology within government in South Carolina. The General Assembly recognizes the critical role information technology plays in providing cost-effective and efficient services to the citizens of this State. The General Assembly envisions an enterprise information system that provides an easily accessible, reliable, and accurate information infrastructure to enhance the quality and delivery of services.
Section 1-3-305. As used in this article:
(1) 'Committee' means the Joint Information Technology Review Committee.
(2) 'Department' means the Department of Administration.
(3) 'Division' means the Division of the Office of the State Chief Information Officer.
(4) 'Governmental body' means a state government department, commission, council, board, bureau, committee, institution, agency, government corporation, or other establishment or official of the executive branch. Governmental body excludes the General Assembly or its respective branches or its committees, the Judicial Branch, Legislative Council, the Office of Legislative Printing and Information Technology Resources, the South Carolina Department of Transportation, colleges, universities, technical schools, and all local political subdivisions such as counties, municipalities, school districts, or public service or special purpose districts.
(5) 'Information technology' means electronic data processing goods and services, telecommunications goods and services, information security goods and services, information management, microprocessors, software, information processing, office systems, any services related to the foregoing, and consulting or other services for design or redesign of information technology supporting business processes.
(6) 'Information technology initiative' means an information technology project proposed by a governmental body or governmental bodies that exceeds a total estimated cost established by the board.
(7) 'Information technology plan' means a document prepared by a governmental body that includes, but is not limited to, the following:
(a) a statement of the governmental body's mission, goals, and objectives for information technology;
(b) an explanation of how the governmental body's mission, goals, objectives for information technology support and conform to the statewide strategic plan for information technology and statewide strategic information technology directions, standards, and enterprise architecture;
(c) a profile of the governmental body's current information technology resources and capabilities, including budget data;
(d) a description of information technology initiatives underway or proposed by the governmental body;
(e) a description of new or ongoing information technology projects being, or expected to be, undertaken by the governmental body, including budget data; and
(f) other information required by law or requested by the division.
(8) 'Business panel' means the Information Technology Business Case Review Panel.
(9) 'Oversight panel' means the Information Technology Architecture Oversight Panel.
Section 1-3-310. There is created the Division of the Office of the State Chief Information Officer within the Department of Administration. The division is under the supervision of the State Chief Information Officer. The State Chief Information Officer shall be appointed by the Governor upon the advice and consent of the Senate and shall serve at the pleasure of the Governor.
Section 1-3-315. In addition to other responsibilities as the department director may assign, the division shall:
(1) develop for approval of the department director a coordinated statewide strategic plan for information technology including, but not limited to, statewide strategic information technology directions, standards, and enterprise architecture. The division shall implement, upon department director's approval, necessary management processes to ensure that governmental bodies fully comply with the coordinated statewide strategic plan;
(2) in consultation with the business panel and the oversight panel, develop for the approval of the department director a process for the review and approval of information technology initiatives and plans of governmental bodies. Each governmental body is required to develop an information technology plan and submit the plan to the division for approval. The division may require modification to those plans that do not conform to statewide information technology plans, strategies, and standards;
(3) develop policies, standards, methodologies, and procedures for the effective management of information technology investments throughout their entire life cycles including, but not limited to, project management, procurement, development, implementation, operation, security, business continuity, performance evaluation, and enhancement or retirement;
(4) oversee the development of statewide and multiagency information technology projects of governmental bodies as approved by the department director;
(5) monitor information technology initiatives approved by the department director. The division may modify and suspend any information technology initiative that is not in compliance with the statewide strategic plan or has not met the performance measures agreed to by the department director, the division, and the sponsoring governmental body. If the division suspends an information technology initiative or project, the governmental body or governmental bodies may seek a review of the suspension by the department director. The division and the governmental body or governmental bodies may present information concerning the suspension to the department director. The director's decision regarding suspension is final. The department director may terminate any information technology initiative upon recommendation of the division;
(6) plan and forecast future needs for information technology and establish an information clearinghouse that identifies best practices and new developments and contains detailed information regarding the state's previous experiences with the development of information technology initiatives;
(7) evaluate requests from governmental bodies for exemptions from this chapter and recommend to the department director whether the exemption requests are granted;
(8) in cooperation with governmental bodies, evaluate the information technology of governmental bodies to determine whether the merger of information technology and related resources is justified by sound business principles including, but not limited to, efficiency, cost effectiveness and cross agency information sharing. If the division determines the merger of the information technology of governmental bodies is appropriate, it shall sponsor an initiative and follow the approval process established under Section 1-3-315(2). The division shall merge any information technology and related resources of governmental bodies only upon approval of the department director;
(9) provide information technology and telecommunications facilities and services in a manner determined by the department director or as required by law;
(10) be responsible for compiling a comprehensive inventory of information technology maintained by governmental bodies;
(11) provide support and subject matter expertise to the department director, the committee, the business panel, and the oversight panel; and
(12) exercise and perform other powers and duties as granted to it, imposed upon it by law or necessary to carry out the purposes of this article.
Section 1-3-320. (A) There is created a joint committee of the General Assembly to be known as the Joint Information Technology Review Committee consisting of ten members. The Chairman of the Senate Finance Committee shall appoint five members, three of whom must be appointed from the Senate Finance Committee and two appointed from the remaining membership of the Senate. The Chairman of the House Ways and Means Committee shall appoint five members, three of whom must be appointed from the House Ways and Means Committee and two appointed from the remaining membership of the House of Representatives. Terms of members of the committee shall correspond to the terms for which they are elected to the General Assembly. The committee shall elect officers of the committee, but individuals elected as officers may succeed themselves if elected to do so.
(B) The responsibilities of the committee include, but are not limited to, the following:
(1) review the reports and recommendations from the business panel and the oversight panel on information technology initiatives to determine if the expenditure of funds for the information technology initiatives is justified by sound business and technological principles and standards;
(2) provide to the department director those information technology initiatives recommended for department approval;
(3) recommend to the department director priorities of future information technology initiatives;
(4) carry out all the above assigned responsibilities in consultation and cooperation with the department director, the division, and the appropriate governmental bodies; and
(5) report its findings and recommendations to the House Ways and Means Committee and the Senate Finance Committee annually or upon request of these committees.
(C) The staffs of the General Assembly shall provide assistance as requested by the committee.
Section 1-3-325. (A) The State Chief Information Officer shall determine the number and composition of the Information Technology Business Case Review Panel to include representatives from governmental bodies and other entities. In addition to those members appointed by the State Chief Information Officer, the business panel shall include two members from the private sector appointed by the chairman of the Senate Finance Committee and two members from the private sector appointed by the chairman of the House Ways and Means Committee. The panel shall review the information technology initiatives of governmental bodies and advise the State Chief Information Officer on matters relating to the development and implementation of information technology standards, policies, and procedures.
(B) The responsibilities of the business panel include the following:
(1) in conjunction with the division, and subject to the department director's approval, the business panel shall recommend and implement a process to assess if the expenditure of state funds for an information technology initiative is justified by sound business principles. This process must include, but is not limited to, an assessment of the return on investment projection of the information technology initiative and an assessment of if the information technology initiative is redundant with the existing technology of the governmental body proposing the information technology initiative or the existing technology of other governmental bodies; and
(2) carry out all other responsibilities assigned to it by the department director or the State Chief Information Officer.
(C) The business panel shall provide a written assessment of the information technology initiative to the committee and the division. In addition to the information contained in subsection (B), this assessment may include the business panel's recommendation as to whether the information technology initiative should be adopted.
(D) Members serve without compensation, but are allowed the usual per diem and mileage as provided by law for members of boards, commissions, and committees while on official business. Members who are full-time state employees may not receive per diem.
Section 1-3-330. (A) The State Chief Information Officer shall determine the number and composition of the Information Technology Architecture Oversight Panel to include representatives from governmental bodies and other entities.
(B) The responsibilities of the oversight panel include:
(1) in conjunction with the division, and subject to department director's approval, to recommend and implement a process to assess if information technology initiative adheres to the coordinated statewide strategic plan for information technology and the information technology plan of the governmental body proposing the information technology initiative, and to assess the technological soundness of the information technology initiative; and
(2) to advise the State Chief Information Officer on matters relating to the development and implementation of information technology standards, policies, and procedures; and
(3) to carry out all other responsibilities assigned to it by the department director or the State Chief Information Officer.
(C) The oversight panel shall provide a written assessment of the information technology initiative to the committee and the division. In addition to the information contained in subsection (B), this assessment may include the oversight panel's recommendation as to whether the information technology initiative should be adopted.
(D) Members serve without compensation, but are allowed the usual per diem and mileage as provided by law for members of boards, commissions, and committees while on official business. Members who are full-time state employees may not receive per diem.
Section 1-3-335. There is created an Information Technology Innovation Fund to be administered by the division. The fund must provide incentives to governmental bodies to implement enterprise information technology initiatives and electronic government projects. The fund must encourage governmental bodies to use information technology to improve the delivery of services and reduce costs. The fund must not be used to replace or offset appropriations for recurring technology expenditures and operations. The fund consists of money appropriated through the state budget process, grants, gifts, donations, or other money designated by the division. The division, subject to the approval of the department director, shall develop appropriate procedures for the allocation and distribution of money contained in the fund."
SECTION 12. Section 11-35-1580(1) of the 1976 Code is amended to read:
"(1) Information Technology Management Office. The Information Technology Management Office shall be is responsible for:
(a) assessing the need for and use of information technology;
(b) administering all procurement and contracting activities undertaken for governmental bodies involving information technology in accordance with this chapter; and
(c)(b) providing for the disposal of all information technology property surplus to the needs of a using agency;.
(d) evaluating the use and management of information technology;
(e) operating a comprehensive inventory and accounting reporting system for information technology;
(f) developing policies and standards for the management of information technology in state government;
(g) initiating a state plan for the management and use of information technology;
(h) providing management and technical assistance to state agencies in using information technology; and
(i) establishing a referral service for state agencies seeking technical assistance or information technology services."
SECTION 13. A. Section 1-11-20 of the 1976 Code, as last amended by Act 164 of 2005, is further amended to read:
"Section 1-11-20. (A) The functions of the State Budget and Control Board shall be performed, exercised and discharged under the supervision and direction of the board through three divisions, the Finance Division (embracing the work of the State Auditor, the former State Budget Commission, the former State Finance Committee and the former Board of Claims for the State of South Carolina), the Purchasing and Property Division (embracing the work of the former Commissioners of the Sinking Fund, the former Board of Phosphate Commissioners, the State Electrician and Engineer, the former Commission on State House and State House Grounds, the central purchasing functions, the former Surplus Procurement Division of the State Research, Planning and Development Board and the Property Custodian) and the Division of Personnel Administration (embracing the work of the former retirement board known as the South Carolina Retirement System and the administration of all laws relating to personnel), each division to consist of a director and such clerical, stenographic and technical employees as may be necessary, to be employed by the respective directors with the approval of the board. The State Auditor shall be the director of the Finance Division, ex officio, and the directors of the other divisions shall be employed by the State Budget and Control Board for such time and compensation, not greater than the term and compensation for the State Auditor, as shall be fixed by the board in its judgment.
(B)(1) Notwithstanding subsection (A), as of July 1, 2007, Division of General Services of the Budget and Control Board including Facilities Management, Business Services together with Fleet Management, and Property Services as well as the Office of Human Resources and Office of Research and Statistics of the Budget and Analysis Division and the other offices or divisions of the Budget and Control Board specified in Section 1-30-125 are transferred to, and incorporated into, the South Carolina Department of Administration.
(2) Notwithstanding another provision of law, if the Budget and Control Board maintains any responsibility related to a program administered by the Department of Administration, whether the responsibility be regulatory, oversight, approval, or other, the board may receive and expend revenues generated by the programs to support the board's responsibilities related to the programs. The funds may be retained and expended in subsequent fiscal years.
(C) Notwithstanding subsection (A), as of July 1, 2007, Budget and Control Board also contains an additional division, known as the State House, Legislative, and Judicial Facilities Operations Division, responsible for the operations and management of the State House, Blatt Office Building, Gressette Office Building, Supreme Court Building, Calhoun Office Building, and Capitol Complex grounds."
B. Section 1-11-22 of the 1976 Code is amended to read:
"Section 1-11-22. (A) Notwithstanding any other provision of law, the Budget and Control Board may organize its staff as it deems considers most appropriate to carry out the various duties, responsibilities and authorities assigned to it and to its various divisions and management and organizational entities.
(B) To the extent that any provision of law divides any responsibilities of any division, office, or program of the Budget and Control Board between the board and one or more state agencies, the transfer must not proceed until a realignment plan for the allocation of staff, assets, and resources is prepared and presented by the board's executive director, and approved by the board. Upon the board's approval, the Office of the Executive Director must provide for the allocation as specified in the realignment plan as soon as practicable.
(C) Notwithstanding any other provision of law, wherever the Budget and Control Board maintains any responsibility related to a program administered by the Department of Administration, whether the responsibility be regulatory, oversight, approval, or other, the board is authorized to expend revenues generated by the programs to support the board's responsibilities related to the programs. The funds may be retained and expended in subsequent fiscal years."
C. Sections 1-11-55, 1-11-56, and 1-11-58, of the 1976 Code are amended to read:
"Section 1-11-55. (1) 'Governmental body' means a state government department, commission, council, board, bureau, committee, institution, college, university, technical school, legislative body, government corporation, or other establishment or official of the executive, judicial, or legislative branches branch of this State. Governmental body excludes the General Assembly, Legislative Council, the Office of Legislative Printing, Information and Technology Systems, the Judicial Department, and all local political subdivisions such as counties, municipalities, school districts, or public service or special purpose districts.
(2) The Budget and Control Board South Carolina Department of Administration, Division of General Services, is hereby designated as the single central broker for the leasing of real property for governmental bodies. No governmental body shall enter into any lease agreement or renew any existing lease except in accordance with the provisions of this section.
(3) When any governmental body needs to acquire real property for its operations or any part thereof and state-owned property is not available, it shall notify the Office Division of General Services of its requirement on rental request forms prepared by the office. Such forms shall indicate the amount and location of space desired, the purpose for which it shall be used, the proposed date of occupancy and such other information as General Services may require. Upon receipt of any such request, General Services shall conduct an investigation of available rental space which would adequately meet the governmental body's requirements, including specific locations which may be suggested and preferred by the governmental body concerned. When suitable space has been located which the governmental body and the office division agree meets necessary requirements and standards for state leasing as prescribed in procedures of the board department as provided for in subsection (5) of this section, General Services shall give its written approval to the governmental body to enter into a lease agreement. All proposed lease renewals shall be submitted to General Services by the time specified by General Services.
(4) The board department shall adopt procedures to be used for governmental bodies to apply for rental space, for acquiring leased space, and for leasing state-owned space to nonstate lessees. Before implementation, these procedures must be submitted to the Budget and Control Board for approval.
(5) Any participant in a property transaction proposed to be entered who maintains that a procedure provided for in this section has not been properly followed, may request review of the transaction by the Director director of the Office Division of General Services of the Department of Administration or his designee.
Section 1-11-56. The State Budget and Control Board Department of Administration, Division of General Services, in an effort to ensure that funds authorized and appropriated for rent are used in the most efficient manner, is directed to develop a program to manage the leasing of all public and private space of state agencies. The department must submit regulations for the implementation of this section to the General Assembly as provided in the Administrative Procedures Act, Chapter 23 of Title 1. The board department regulations, upon General Assembly approval, shall include procedures for:
(1) assessing and evaluating agency needs, including the authority to require agency justification for any request to lease public or private space;
(2) establishing standards for the quality and quantity of space to be leased by a requesting agency;
(3) devising and requiring the use of a standard lease form (approved by the Attorney General) with provisions which assert and protect the state's prerogatives including, but not limited to, a right of cancellation in the event of:
(a) a nonappropriation for the renting agency,;
(b) a dissolution of the agency,; and
(c) the availability of public space in substitution for private space being leased by the agency;
(4) rejecting an agency's request for additional space or space at a specific location, or both;
(5) directing agencies to be located in public space, when available, before private space can be leased;
(6) requiring the agency to submit a multi-year financial plan for review by the board's budget office Budget and Control Board's Office of State Budget with copies sent to Ways and Means Committee and Senate Finance Committee, before any new lease for space is entered into; and requiring prior review by the Joint Bond Review Committee and the requirement of Budget and Control Board approval before the adoption of any new lease that commits more than one million dollars in a five-year period; and
(7) requiring prior review by the Joint Bond Review Committee and the requirement of Budget and Control Board departmental approval before the adoption of any new lease that commits more than one million dollars in a five-year period.
Section 1-11-58. (1) Every state agency, as defined by Section 1-19-40, shall annually perform an inventory and prepare a report of all residential and surplus real property owned by it. The report shall be submitted to the State Budget and Control Board Department of Administration, Office Division of General Services, on or before June thirtieth and shall indicate current use, current value, and projected use of the property. Property not currently being utilized for necessary agency operations shall be made available for sale and funds received from the sale of the property shall revert to the general fund.
(2) The Office Division of General Services will shall review the annual reports addressing real property submitted to it and determine the real property which is surplus to the State. A central listing of such property will be maintained for reference in reviewing subsequent property acquisition needs of agencies.
(3) Upon receipt of a request by an agency to acquire additional property, the Office Division of General Services shall review the surplus property list to determine if the agency's needs can may be met from existing state-owned property. If such property is identified, the Office division of General Services shall act as broker in transferring the property to the requesting agency under terms and conditions that are mutually agreeable to the agencies involved.
(4) The Budget and Control Board department may authorize the Office Division of General Services to sell any unassigned surplus real property. The Office of General Services division shall have the discretion to determine the method of disposal to be used, which possible methods include: auction, sealed bids, listing the property with a private broker or any other method determined by the Office of General Services division to be commercially reasonable considering the type and location of property involved."
D. Sections 1-11-65, 1-11-67, 1-11-70, 1-11-80, 1-11-90, 1-11-100, and 1-11-110 of the 1976 Code are amended to read:
"Section 1-11-65. (A) All transactions involving real property, made for or by any governmental bodies, excluding political subdivisions of the State, must be recommended by the Department of Administration and approved by and recorded with the State Budget and Control Board. Upon approval of the transaction by the Budget and Control Board, there must be recorded simultaneously with the deed, a certificate of acceptance, which acknowledges the board's approval of the transaction. The county recording authority cannot accept for recording any deed not accompanied by a certificate of acceptance. The board may exempt a governmental body from the provisions of this subsection.
(B) All state agencies, departments, and institutions authorized by law to accept gifts of tangible personal property shall have executed by its governing body an acknowledgment of acceptance prior to transfer of the tangible personal property to the agency, department, or institution.
Section 1-11-67. The State Budget and Control Board and the Department of Administration shall assess and collect a rental charge from all state departments and agencies that occupy State Budget and Control Board space in state-controlled office buildings under their jurisdiction. The amount charged each department or agency must be calculated on a square foot, or other equitable basis of measurement, and at rates that will yield sufficient total annual revenue to cover the annual principal and interest due or anticipated on the Capital Improvement Obligations for projects administered or planned by the Office of General Services board or by the department, and maintenance and operation costs of State Budget and Control Board-controlled or department-controlled office buildings under the supervision of the Office of General Services. The amount collected must be deposited in a special account and must be expended only for payment on Capital Improvement Obligations and maintenance and operations costs of the buildings under the supervision of the Office of General Services board or department.
All departments and agencies against which rental charges are assessed and whose operations are financed in whole or in part by federal or other nonappropriated funds are both directed to apportion the payment of these charges equitably among all funds to ensure that each bears its proportionate share.
Section 1-11-70. All vacant lands and lands purchased by the former land commissioners of the State shall be are subject to the directions of the State Budget and Control Board Department of Administration.
Section 1-11-80. The State Budget and Control Board, upon recommendation of the South Carolina Department of Administration, is authorized to grant easements and rights of way to any person for construction and maintenance of power lines, pipe lines, water and sewer lines and railroad facilities over, on or under such vacant lands or marshland as are owned by the State, upon payment of the reasonable value thereof.
Section 1-11-90. The State Budget and Control Board, upon recommendation of the South Carolina Department of Administration, may grant to agencies or political subdivisions of the State, without compensation, rights of way through and over such marshlands as are owned by the State for the construction and maintenance of roads, streets and highways or power or pipe lines, if, in the judgment of the Budget and Control Board, the interests of the State will not be adversely affected thereby.
Section 1-11-100. Deeds or other instruments conveying such rights of way or easements over such marshlands or vacant lands as are owned by the State shall be executed by the Governor in the name of the State, when recommended by the South Carolina Department of Administration and authorized by resolution of the Budget and Control Board, duly recorded in the minutes and records of such board and when duly approved by the office of the Attorney General; deeds or other instruments conveying such easements over property in the name of or under the control of State agencies, institutions, commissions or other bodies shall be executed by the majority of the governing body thereof, shall name both the State of South Carolina and the institution, agency, commission or governing body as grantors, and shall show the written approval of the majority of the members of the State Budget and Control Board.
Section 1-11-110. (1) The State Budget and Control Board, upon recommendation of the South Carolina Department of Administration, is authorized to acquire real property, including any estate or interest therein, for, and in the name of, the State of South Carolina by gift, purchase, condemnation or otherwise.
(2) The State Budget and Control Board, upon recommendation of the South Carolina Department of Administration, shall make use of the provisions of the Eminent Domain Procedure Act (Chapter 2 of Title 28) if it is necessary to acquire real property by condemnation. The actions must be maintained by and in the name of the board. The right of condemnation is limited to the right to acquire land necessary for the development of the Capitol Complex mall grounds in the City of Columbia."
E. Section 1-11-180 of the 1976 Code is amended to read:
"Section 1-11-180. (A) In addition to the powers granted the Budget and Control Board South Carolina Department of Administration under this chapter or any other provision of law, the board department may:
(1) survey, appraise, examine, and inspect the condition of state property to determine what is necessary to protect state property against fire or deterioration and to conserve the use of the property for state purposes;
(2) approve the destruction or disposal of state agency records;
(3) require submission and approval of plans and specifications for permanent improvements by a state department, agency, or institution before a contract is awarded for the permanent improvement;
(4) approve blanket bonds for a state department, agency, or institution including bonds for state officials or personnel. However, the form and execution of blanket bonds must be approved by the Attorney General;
(5)(3) contract to develop an energy utilization management system for state facilities under its control and to assist other agencies and departments in establishing similar programs. However, this does not authorize capital expenditures.
(B) The Budget and Control Board South Carolina Department of Administration may shall promulgate regulations necessary to carry out this section."
F. Chapter 11 of Title 1 of the 1976 Code is amended by adding:
"Section 1-11-185. (A) In addition to the powers granted the Budget and Control Board pursuant to this chapter or another provision of law, the board may require submission and approval of plans and specifications for permanent improvements by a state department, agency, or institution before a contract is awarded for the permanent improvement.
(B) The Budget and Control Board may promulgate regulations necessary to carry out its duties.
(C) The respective divisions of the Budget and Control Board are authorized to provide to and receive from other governmental entities, including other divisions and state and local agencies and departments, goods and services as will in its opinion promote efficient and economical operations. The divisions may charge and pay the entities for the goods and services, the revenue from which must be deposited in the state treasury in a special account and expended only for the costs of providing the goods and services, and those funds may be retained and expended for the same purposes."
G. (1) Section 1-11-220 of the 1976 Code is amended to read:
"Section 1-11-220. There is hereby established within the Budget and Control Board South Carolina Department of Administration, the Division of Motor Vehicle Management General Services, Program of Fleet Management headed by a Director, hereafter referred to as the 'State Fleet Manager' appointed by and reporting directly to the Budget and Control Board department, hereafter referred to as the Board. The Board department shall develop a comprehensive state Fleet Management Program. The program shall address acquisition, assignment, identification, replacement, disposal, maintenance, and operation of motor vehicles.
The Budget and Control Board department shall, through their its policies and regulations, seek to achieve the following objectives:
(a) to achieve maximum cost-effectiveness management of state-owned motor vehicles in support of the established missions and objectives of the agencies, boards, and commissions.;
(b) to eliminate unofficial and unauthorized use of state vehicles.;
(c) to minimize individual assignment of state vehicles.;
(d) to eliminate the reimbursable use of personal vehicles for accomplishment of official travel when this use is more costly than use of state vehicles.;
(e) to acquire motor vehicles offering optimum energy efficiency for the tasks to be performed.;
(f) to insure motor vehicles are operated in a safe manner in accordance with a statewide Fleet Safety Program."
(2) Section 1-11-225 of the 1976 Code is amended to read:
"Section 1-11-225. The Division of Operations South Carolina Department of Administration shall establish a cost allocation plan to recover the cost of operating the comprehensive statewide Fleet Management Program. The division shall collect, retain, and carry forward funds to ensure continuous administration of the program."
(3) Sections 1-11-250, 1-11-260, 1-11-270(A), 1-11-280, 1-11-290; 1-11-300, 1-11-310, 1-11-315, 1-11-320; 1-11-335, and 1-11-340 of the 1976 Code are amended to read:
"Section 1-11-250. For purposes of Sections 1-11-220 to 1-11-330:
(a) 'State agency' means all officers, departments, boards, commissions, institutions, universities, colleges, and all persons and administrative units of state government that operate motor vehicles purchased, leased, or otherwise held with the use of state funds, pursuant to an appropriation, grant or encumbrance of state funds, or operated pursuant to authority granted by the State.
(b) 'Board Department' means State Budget and Control Board the South Carolina Department of Administration.
Section 1-11-260. (A) The Fleet Manager shall report annually to the Budget and Control Board department and the General Assembly concerning the performance of each state agency in achieving the objectives enumerated in Sections 1-11-220 through 1-11-330 and include in the report a summary of the division's program's efforts in aiding and assisting the various state agencies in developing and maintaining their management practices in accordance with the comprehensive statewide Motor Vehicle Fleet Management Program. This report also shall contain recommended changes in the law and regulations necessary to achieve these objectives.
(B) The board department, after consultation with state agency heads, shall promulgate and enforce state policies, procedures, and regulations to achieve the goals of Sections 1-11-220 through 1-11-330 and shall recommend administrative penalties to be used by the agencies for violation of prescribed procedures and regulations relating to the Fleet Management Program.
Section 1-11-270. (A) The board department shall establish criteria for individual assignment of motor vehicles based on the functional requirements of the job, which shall reduce the assignment to situations clearly beneficial to the State. Only the Governor, statewide elected officials, and agency heads are provided a state-owned vehicle based on their position.
Section 1-11-280. The Board department shall develop a system of agency-managed and interagency motor pools which are, to the maximum extent possible, cost beneficial to the State. All motor pools shall operate according to regulations promulgated by the Budget and Control Board department. Vehicles shall be placed in motor pools rather than being individually assigned except as specifically authorized by the Board department in accordance with criteria established by the Board department. The motor pool operated by the Division of General Services shall be transferred to the Division of Motor Vehicle Management. Agencies utilizing motor pool vehicles shall utilize trip log forms approved by the Board department for each trip, specifying beginning and ending mileage and the job function performed.
The provisions of this section shall not apply to school buses and service vehicles.
Section 1-11-290. The Board department in consultation with the agencies operating maintenance facilities shall study the cost-effectiveness of such facilities versus commercial alternatives and shall develop a plan for maximally cost-effective vehicle maintenance. The Budget and Control Board department shall promulgate rules and regulations governing vehicle maintenance to effectuate the plan.
The State Vehicle Maintenance program shall include:
(a) central purchasing of supplies and parts;
(b) an effective inventory control system;
(c) a uniform work order and record-keeping system assigning actual maintenance cost to each vehicle; and
(d) preventive maintenance programs for all types of vehicles.
All motor fuels shall be purchased from state facilities except in cases where such purchase is impossible or not cost beneficial to the State.
All fuels, lubricants, parts and maintenance costs including those purchased from commercial vendors shall be charged to a state credit card bearing the license plate number of the vehicle serviced and the bill shall include the mileage on the odometer of the vehicle at the time of service.
Section 1-11-300. In accordance with criteria established by the board department, each agency shall develop and implement a uniform cost accounting and reporting system to ascertain the cost per mile of each motor vehicle used by the State under their control. Agencies presently operating under existing systems may continue to do so provided that board departmental approval shall be is required and that the existing systems shall be are uniform with the criteria established by the board department. All expenditures on a vehicle for gasoline and oil shall be purchased in one of the following ways:
(1) from state-owned facilities and paid for by the use of Universal State Credit Cards except where agencies purchase these products in bulk;
(2) from any fuel outlet where gasoline and oil are sold regardless of whether the outlet accepts a credit or charge card when the purchase is necessary or in the best interest of the State; and
(3) from a fuel outlet where gasoline and oil are sold when that outlet agrees to accept the Universal State Credit Card.
These provisions regarding purchase of gasoline and oil and usability of the state credit card also apply to alternative transportation fuels where available. The Budget and Control Board Division of Operations department shall adjust the budgetary appropriation in Part IA, Section 63B, for 'Operating Expenses--Lease Fleet' to reflect the dollar savings realized by these provisions and transfer such amount to other areas of the State Fleet Management Program. The Board department shall promulgate regulations regarding the purchase of motor vehicle equipment and supplies to ensure that agencies within a reasonable distance are not duplicating maintenance services or purchasing equipment that is not in the best interest of the State. The Board department shall develop a uniform method to be used by the agencies to determine the cost per mile for each vehicle operated by the State.
Section 1-11-310. (A) The State Budget and Control Board South Carolina Department of Administration shall purchase, acquire, transfer, replace, and dispose of all motor vehicles on the basis of maximum cost-effectiveness and lowest anticipated total life cycle costs.
(B) The standard state fleet sedan or station wagon must be no larger than a compact model and the special state fleet sedan or station wagon must be no larger than an intermediate model. The director of the Division of Motor Vehicle Management State Fleet Manager shall determine the types of vehicles which fit into these classes. Only these classes of sedans and station wagons may be purchased by the State for nonlaw enforcement use.
(C) The State shall purchase police sedans only for the use of law enforcement officers, as defined by the Internal Revenue Code. Purchase of a vehicle under this subsection must be concurred in by the director of the Division of Motor Vehicle Management State Fleet Manager and must be in accordance with regulations promulgated or procedures adopted under Sections 1-11-220 through 1-11-340 which must take into consideration the agency's mission, the intended use of the vehicle, and the officer's duties. Law enforcement agency vehicles used by employees whose job functions do not meet the Internal Revenue Service definition of 'Law Enforcement Officer' must be standard or special state fleet sedans.
(D) All state motor vehicles must be titled to the State and must be received by and remain in the possession of the Division Program of Motor Vehicle Fleet Management pending sale or disposal of the vehicle.
(E) Titles to school buses and service vehicles operated by the State Department of Education and vehicles operated by the South Carolina Department of Transportation must be retained by those agencies.
(F) Exceptions to requirements in subsections (B) and (C) must be approved by the director of the Division of Motor Vehicle Management State Fleet Manager. Requirements in subsection (B) do not apply to the State Development Board.
(G) Preference in purchasing state motor vehicles must be given to vehicles assembled in the United States with at least seventy-five percent domestic content as determined by the appropriate federal agency.
Section 1-11-315. The State Budget and Control Board South Carolina Department of Administration, Division of General Services, Program of Motor Vehicle Fleet Management, shall determine the extent to which the state vehicle fleet can be configured to operate on alternative transportation fuels. This determination must be based on a thorough evaluation of each alternative fuel and the feasibility of using such fuels to power state vehicles. The state fleet must be configured in a manner that will serve as a model for other corporate and government fleets in the use of alternative transportation fuel. By March 1, 1993, the Division Program of Motor Vehicle Fleet Management must submit a plan to the General Assembly for the use of alternative transportation fuels for the state vehicle fleet that will enable the state vehicle fleet to serve as a model for corporate and other government fleets in the use of alternative transportation fuel. This plan must contain a cost/benefit analysis of the proposed changes.
Section 1-11-320. The Board department shall ensure that all state-owned motor vehicles are identified as such through the use of permanent state-government state government license plates and either state or agency seal decals. No vehicles shall be exempt from the requirements for identification except those exempted by the Board department.
This section shall not apply to vehicles supplied to law enforcement officers when, in the opinion of the Board department after consulting with the Chief of the State Law Enforcement Division, those officers are actually involved in undercover law enforcement work to the extent that the actual investigation of criminal cases or the investigators' physical well-being would be jeopardized if they were identified. The Board department is authorized to exempt vehicles carrying human service agency clients in those instances in which the privacy of the client would clearly and necessarily be impaired.
Section 1-11-335. The respective divisions of the Budget and Control Board and the South Carolina Department of Administration are authorized to provide to and receive from other governmental entities, including other divisions and state and local agencies and departments, goods and services, as will in its opinion promote efficient and economical operations. The divisions may charge and pay the entities for the goods and services, the revenue from which shall be deposited in the state treasury in a special account and expended only for the costs of providing the goods and services, and such funds may be retained and expended for the same purposes.
Section 1-11-340. The Board department shall develop and implement a statewide Fleet Safety Program for operators of state-owned vehicles which shall serve to minimize the amount paid for rising insurance premiums and reduce the number of accidents involving state-owned vehicles. The Board department shall promulgate rules and regulations requiring the establishment of an accident review board by each agency and mandatory driver training in those instances where remedial training for employees would serve the best interest of the State."
H. Section 1-11-435 of the 1976 Code is amended to read:
"Section 1-11-435. To protect the state's critical information technology infrastructure and associated data systems in the event of a major disaster, whether natural or otherwise, and to allow the services to the citizens of this State to continue in such an event, the Office Division of the Office of the State Chief Information Officer (CIO) should develop a Critical Information Technology Infrastructure Protection Plan devising policies and procedures to provide for the confidentiality, integrity, and availability of, and to allow for alternative and immediate online access to critical data and information systems including, but not limited to, health and human services, law enforcement, and related agency data necessary to provide critical information to citizens and ensure the protection of state employees as they carry out their disaster-related duties. All state agencies and political subdivisions of this State are directed to assist the Office of the State CIO in the collection of data required for this plan."
I. Section 2-13-240(a) of the 1976 Code is amended by adding at the end:
"(89) Department of Administration, six."
J. Section 2-13-240(a)(58) of the 1976 Code is amended to read:
"(58) Budget and Control Board:
(a) Auditor, six;
(b) General Services Division, six;
(c) Personnel Division, one;
(d) Research and Statistical Services Division, one;
(e) Retirement System, one.;
(f) Statehouse, Legislative, and Judicial Facilities Operations Division, one."
K Chapter 9, Title 3 of the 1976 Code is amended to read:
Section 3-9-10. (a) The Division of General Services of the State Budget and Control Board South Carolina Department of Administration is authorized:
(1) to acquire from the United States of America under and in conformance with the provisions of Section 203 (j) of the Federal Property and Administrative Services Act of 1949, as amended, hereafter referred to as the 'act,' such property, including equipment, materials, books, or other supplies under the control of any department or agency of the United States of America as may be usable and necessary for purposes of education, public health or civil defense, including research for any such purpose, and for such other purposes as may now or hereafter be authorized by federal law;
(2) to warehouse such property; and
(3) to distribute such property within the State to tax-supported medical institutions, hospitals, clinics, health centers, school systems, schools, colleges and universities within the State, to other nonprofit medical institutions, hospitals, clinics, health centers, schools, colleges and universities which are exempt from taxation under Section 501 (c)(3) of the United States Internal Revenue Code of 1954, to civil defense organizations of the State, or political subdivisions and instrumentalities thereof, which are established pursuant to State law, and to such other types of institutions or activities as may now be or hereafter become eligible under Federal law to acquire such property.
(b) The Division of General Services of the Department of Administration is authorized to receive applications from eligible health and educational institutions for the acquisition of Federal surplus real property, investigate the applications, obtain expression of views respecting the applications from the appropriate health or educational authorities of the State, make recommendations regarding the need of such applicant for the property, the merits of its proposed program of utilization, the suitability of the property for the purposes, and otherwise assist in the processing of the applications for acquisition of real and related personal property of the United States under Section 203 (k) of the act.
(c) For the purpose of executing its authority under this chapter, the Division of General Services is authorized to adopt, amend or rescind rules and regulations and prescribe such requirements as may be deemed necessary; and take such other action as is deemed necessary and suitable, in the administration of this chapter, to assure maximum utilization by and benefit to health, educational and civil defense institutions and organizations within the State from property distributed under this chapter.
(d) The Budget and Control Board South Carolina Department of Administration is authorized to appoint advisory boards or committees, and to employ such personnel and prescribe their duties as are deemed necessary and suitable for the administration of this chapter.
(e) The Director of the Division of General Services is authorized to make such certifications, take such action and enter into such contracts, agreements and undertakings for and in the name of the State (including cooperative agreements with any Federal agencies providing for utilization of property and facilities by and exchange between them of personnel and services without reimbursement), require such reports and make such investigations as may be required by law or regulation of the United States of America in connection with the receipt, warehousing and distribution of personal property received by him from the United States of America.
(f) The Division of General Services is authorized to act as clearinghouse of information for the public and private nonprofit institutions, organizations and agencies referred to in subparagraph (a) of this section and other institutions eligible to acquire federal surplus personal property, to locate both real and personal property available for acquisition from the United States of America, to ascertain the terms and conditions under which such property may be obtained, to receive requests from the above-mentioned institutions, organizations and agencies and to transmit to them all available information in reference to such property, and to aid and assist such institutions, organizations and agencies in every way possible in the consummation of acquisitions or transactions hereunder.
(g) The Division of General Services, in the administration of this chapter, shall cooperate to the fullest extent consistent with the provisions of the act, and with the departments or agencies of the United States of America, and shall file a State plan of operation, and operate in accordance therewith, and take such action as may be necessary to meet the minimum standards prescribed in accordance with the act, and make such reports in such form and containing such information as the United States of America or any of its departments or agencies may from time to time require, and it shall comply with the laws of the United States of America and the rules and regulations of any of the departments or agencies of the United States of America governing the allocation, transfer, use or accounting for, property donable or donated to the State.
Section 3-9-20. The Director of the Division of General Services may delegate such power and authority as he deems reasonable and proper for the effective administration of this chapter. The State Budget and Control Board South Carolina Department of Administration may require bond of any person in the employ of the Division of General Services receiving or distributing property from the United States under authority of this chapter.
Section 3-9-30. Any charges made or fees assessed by the Division of General Services for the acquisition, warehousing, distribution or transfer of any property of the United States of America for educational, public health or civil defense purposes, including research for any such purpose, or for any purpose which may now be or hereafter become eligible under the act, shall be limited to those reasonably related to the costs of care and handling in respect to its acquisition, receipt, warehousing, distribution or transfer.
Section 3-9-40. The provisions of this chapter shall not apply to the acquisition of property acquired by agencies of the State under the priorities established by Section 308 (b), Title 23, United States Code, Annotated."
L. Section 10-1-10, Section 10-1-30, as last amended by Act 628 of 1988, and Section 10-1-40 of the 1976 Code are amended to read:
"Section 10-1-10. (A) The State Budget and Control Board shall keep, landscape, cultivate, and beautify the State House and State House grounds with authority to expend such amounts as may be annually appropriated therefor. The board shall employ all help and labor in policing, protecting, and caring for the State House and State House grounds and shall have full authority over them.
(B) The State Budget and Control Board shall keep and maintain the State House, Blatt Office Building, Gressette Office Building, Supreme Court Building, Calhoun Office Building, and the grounds of the Capitol Complex with authority to expend amounts as may be appropriated annually therefor and shall have full authority over the buildings. The board shall employ all help and labor in policing, protecting, and caring for the State House, and its grounds and shall have full authority over it.
Section 10-1-30. (A) The Director of the Division of General Services of the State Budget and Control Board may authorize the use of the State House lobbies, the State House steps and grounds, and other public buildings and grounds in accordance with regulations promulgated restrictions set by the board.
(B) The Budget and Control Board may authorize the use of the State House lobbies and the Gressette and Blatt Office Buildings in accordance with restrictions set by the board. The director board shall obtain the approval of the Clerk of the Senate before authorizing any use of the Gressette Building and shall obtain the approval of the Clerk of the House of Representatives before authorizing any use of the Blatt Building.
(C) The regulations restrictions upon the use of the buildings and grounds must contain provisions to insure ensure that the public health, safety, and welfare will be are protected in the use of the areas including reasonable time, place, and manner restrictions and application periods before use. If sufficient measures cannot be are not taken to protect the public health, safety, and welfare, the director Budget and Control Board shall deny the requested use. Other restrictions may be imposed on the use of the areas as are necessary for the conduct of business in those areas and the maintenance of the dignity, decorum, and aesthetics of the areas.
Section 10-1-40. There is hereby established a committee to be known as the 'State House Committee', consisting of five members of the Senate, appointed by the Lieutenant Governor and five members of the House of Representatives, appointed by the Speaker, whose duties shall be to review all proposals for alterations and/or renovations to the State House. No alterations or renovations shall be undertaken without the approval of this committee."
M. Section 10-1-130 of the 1976 Code is amended to read:
"Section 10-1-130. The trustees or governing bodies of State institutions and agencies may grant easements and rights of way over any property under their control, upon the recommendation of the Department of Administration and the concurrence and acquiescence of the State Budget and Control Board, whenever it appears that such easements will do not materially impair the utility of the property or damage it and, when a consideration is paid therefor, any such amounts shall must be placed in the State Treasury to the credit of the institution or agency having control of the property involved."
N. Section 10-1-190 of the 1976 Code, as added by Act 145 of 1995, is amended to read:
"Section 10-1-190. As part of the approval process relating to trades of state property for nonstate property, the Budget and Control Board South Carolina Department of Administration is authorized to approve the application of any net proceeds resulting from such a transaction to the improvement of the property held by the board department, subject to the approval of the Budget and Control Board."
O. Chapter 9, Title 10 of the 1976 Code is amended to read:
Section 10-9-10. The Public Service Authority may, through its board of directors, make and execute leases of gas, oil and other minerals and mineral rights, excluding phosphate and lime and phosphatic deposits, over and upon the lands and properties owned by said Authority; and the State Budget and Control Board South Carolina Department of Administration and the forfeited land commissions of the several counties of this State may, with the approval of the Attorney General, make and execute such leases over and upon the lands and waters of the State and of the several counties under the ownership, management, or control of such Board the department and commissions respectively.
Section 10-9-20. No such lease shall provide for a royalty of less than twelve and one-half per cent of production of oil and gas from the lease.
Section 10-9-30. Nothing contained in this article shall estop the State from enacting proper laws for the conservation of the oil, gas and other mineral resources of the State and all leases and contracts made under authority of this article shall be subject to such laws; provided, that the State Budget and Control Board South Carolina Department of Administration may negotiate for leases of oil, gas and other mineral rights upon all of the lands and waters of the State, including offshore marginal and submerged lands.
Section 10-9-35. In the event that the State of South Carolina is the recipient of revenues derived from offshore oil leases within the jurisdictional limits of the State such revenues shall be deposited with the State Treasurer in a special fund and shall be expended only by authorization of the General Assembly.
Funds so accumulated shall be expended only for the following purposes:
(1) to retire the bonded indebtedness incurred by South Carolina;
(2) for capital improvement expenditures.
Section 10-9-40. The authority conferred upon the Public Service Authority, the State Budget and Control Board South Carolina Department of Administration, and the forfeited land commissions by this article shall be cumulative and in addition to the rights and powers heretofore vested by law in such Authority, such State Budget and Control Board the South Carolina Department of Administration, and such commissions, respectively.
Section 10-9-110. The State Budget and Control Board South Carolina Department of Administration shall be charged with the exclusive control and protection of the rights and interest of the State in the phosphate rocks and phosphatic deposits in the navigable streams and in the marshes thereof.
Section 10-9-120. The Board department may inquire into and protect the interests of the State in and to any phosphatic deposits or mines, whether in the navigable waters of the State or in land marshes or other territory owned or claimed by other parties, and in the proceeds of any such mines and may take such action for, or in behalf of, the State in regard thereto as it may find necessary or deem proper.
Section 10-9-130. The Board department may issue to any person who applies for a lease or license granting a general right to dig, mine and remove phosphate rock and phosphatic deposits from all the navigable streams, waters and marshes belonging to the State and also from such of the creeks, not navigable, lying therein as may contain phosphate rock and deposits belonging to the State and not previously granted. Such leases or licenses may be for such terms as may be determined by the Board department. The annual report of the Board department to the General Assembly shall include a list of all effective leases and licenses. The Board department may make a firm contract for the royalty to be paid the State which shall not be increased during the life of the license. Provided, that prior to the grant or issuance of any lease or license, the Board department shall cause to be published a notice of such application in a newspaper having general circulation in the county once a week for three successive weeks prior to the grant or issuance. Provided, further However, the lessee or licensee may shall not take possession if there be is an adverse claim and the burden of proving ownership in the State shall be placed upon the lessee or licensee.
Section 10-9-140. In every case in which such an application shall be is made to the Board department for a license, the Board department may grant or refuse the license as it may deem considers best for the interest of the State and the proper management of the interests of the State in such those deposits.
Section 10-9-150. As a condition precedent to the right to dig, mine, and remove the rocks and deposits granted by any such a license, each licensee shall enter into bond, with security, in the penal sum of five thousand dollars, conditioned for the making at the end of every month of true and faithful returns to the Comptroller General of the number of tons of phosphate rock and phosphatic deposits so dug or mined and the punctual payment to the State Treasurer of the royalty provided at the end of every quarter or three months. Such The bond and sureties thereon shall be are subject to the approval required by law for the bonds of State officers.
Section 10-9-160. Whenever the Board department shall have reason to doubt the solvency of any surety whose name appears upon any bond executed for the purpose of securing the payment of the phosphate royalty by any person digging, mining and removing phosphate rock or phosphatic deposits in any of the territory, the property of the State, under any grant or license, the Board department shall forthwith notify the person giving such bond and the sureties thereon and require that one or more sureties, as the case may be, shall be added to the bond, such surety or sureties to be approved by the Board department.
Section 10-9-170. The Board department, upon petition filed by any person who is surety on any such bond as aforesaid and who considers himself in danger of being injured by such suretyship, shall notify the person giving such bond to give a new bond with other sureties and upon failure of such person to do so within thirty days shall cause such person to suspend further operations until a new bond be given. But in In no case shall the sureties on the old bond be discharged from liability thereon until the new bond has been executed and approved, and such sureties shall not be discharged from any antecedent liability by reason of such suretyship.
Section 10-9-180. The Board department is hereby vested with full and complete power and control over all mining in the phosphate territory belonging to this State and over all persons digging or mining phosphate rock or phosphatic deposit in the navigable streams and waters or in the marshes thereof, with full power and authority, subject to the provisions of Sections 10-9-130 and 10-9-190 to fix, regulate, raise or reduce such royalty per ton as shall from time to time be paid to the State by such persons for all or any such phosphate rock dug, mined, removed and shipped or otherwise sent to the market therefrom. But six Six months' notice shall be given all persons at such time digging or mining phosphate rock in such navigable streams, waters or marshes before any increase shall be made in the rate of royalty theretofore existing.
Section 10-9-190. Each person to whom a license shall be issued must, at the end of every month, make to the Comptroller General a true and lawful return of the phosphate rock and phosphatic deposits he may have dug or mined during such month and shall punctually pay to the State Treasurer, at the end of every quarter or three months, a royalty of five cents per ton upon each and every ton of the crude rock (not of the rock after it has been steamed or dried), the first quarter to commence to run on the first day of January in each year.
Section 10-9-200. The State Budget and Control Board South Carolina Department of Administration shall, within twenty days after the grant of any license as aforesaid, notify the Comptroller General of the issuing of such license, with the name of the person to whom issued, the time of the license and the location for which it was issued.
Section 10-9-210. Every person who shall dig, mine or remove any phosphate rock or phosphatic deposit from the beds of the navigable streams, waters and marshes of the State without license therefor previously granted by the State to such person shall be liable to a penalty of ten dollars for each and every ton of phosphate rock or phosphatic deposits so dug, mined or removed, to be recovered by action at the suit of the State in any court of competent jurisdiction. One half of such penalty shall be for the use of the State and the other half for the use of the informer.
Section 10-9-220. It shall be unlawful for any person to purchase or receive any phosphate rock or phosphatic deposit dug, mined or removed from the navigable streams, waters or marshes of the State from any person not duly authorized by act of the General Assembly of this State or license of the Board department to dig, mine or remove such phosphate rock or phosphatic deposit.
Section 10-9-230. Any person violating Section 10-9-220 shall forfeit to the State the sum of ten dollars for each and every ton of phosphate rock or phosphatic deposit so purchased or received, to be recovered by action in any court of competent jurisdiction. One half of such forfeiture shall be for the use of the State and the other half for the use of the informer.
Section 10-9-240. Should any person whosoever interfere with, obstruct or molest or attempt to interfere with, obstruct or molest the Board department or anyone by it authorized or licensed hereunder in the peaceable possession and occupation for mining purposes of any of the marshes, navigable streams or waters of the State, then the Board department may, in the name and on behalf of the State, take such measures or proceedings as it may be advised are proper to enjoin and terminate any such molestation, interference or obstruction and place the State, through its agents, the Board department or any one under it authorized, in absolute and practical possession and occupation of such marshes, navigable streams or waters.
Section 10-9-250. Should any person attempt to mine or remove phosphate rock and phosphatic deposits from any of the marshes, navigable waters or streams, including the Coosaw River phosphate territory, by and with any boat, vessel, marine dredge or other appliances for such mining or removal, without the leave or license of the Board department thereto first had and obtained, all such boats, vessels, marine dredges and other appliances are hereby declared forfeited to and property of the State, and the Attorney General, for and in behalf of the State, shall institute proceedings in any court of competent jurisdiction for the claim and delivery thereof, in the ordinary form of action for claim and delivery, in which action the title of the State shall be established by the proof of the commission of any such act of forfeiture by the person owning them, or his agents, in possession of such boats, vessels, marine dredges or other appliances. In any such action the State shall not be called upon or required to give any bond or obligation such as is required by parties plaintiff in action for claim and delivery.
Section 10-9-260. Any person wilfully interfering with, molesting or obstructing or attempting to interfere with, molest or obstruct the State or the State Budget and Control Board South Carolina Department of Administration or anyone by it authorized or licensed in the peaceable possession and occupation of any of the marshes, navigable streams or waters of the State, including the Coosaw River phosphate territory, or who shall dig or mine or attempt to dig or mine any of the phosphate rock or phosphatic deposits of this State without a license so to do issued by the Board department shall be punished for each offense by a fine of not less than one hundred dollars nor more than five hundred dollars or imprisonment for not less than one nor more than twelve months, or both, at the discretion of the court.
Section 10-9-270. The Board department shall report annually to the General Assembly its actions and doings under this article during the year to the time of the meeting of the Assembly, with an itemized account of its expenses for the year incurred in connection with its duties and powers under this article.
Section 10-9-310. For purposes of this article geothermal resources mean the natural heat of the earth at temperatures greater than forty degrees Celsius and includes:
(1) The energy, including pressure, in whatever form present in, resulting from, created by, or that may be extracted from that natural heat.
(2) The material medium, including the brines, water, and steam naturally present, as well as any substance artificially introduced to serve as a heat transfer medium.
(3) All dissolved or entrained minerals and gases that may be obtained from the material medium but excluding hydrocarbon substances and helium.
Section 10-9-320. The State Budget and Control Board (board) South Carolina Department of Administration may lease development rights to geothermal resources underlying surface lands owned by the State. The board department must promulgate regulations regarding the method of lease acquisition, lease terms, and conditions due the State under lease operations. The South Carolina Department of Natural Resources is designated as the exclusive agent for the board in selecting lands to be leased, administering the competitive bidding for leases, administering the leases, receiving and compiling comments from other state agencies concerning the desirability of leasing the state lands proposed for leasing and such other activities that pertain to geothermal resource leases as may be included herein as responsibilities of the board department.
Section 10-9-330. Any lease of rights to drill for and use oil, natural gas, or minerals on public or private lands must not allow drilling for or use of geothermal energy by the lessee unless the instrument creating the lease specifically provides for such use."
P. Section 10-11-50 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 10-11-50. (A) It shall be unlawful for anyone to park any vehicle on any of the property described in Section 10-11-40 and subsection (2) of Section 10-11-80 except in the spaces and manner now marked and designated or that may hereafter be marked and designated by the State Budget and Control Board South Carolina Department of Administration, in cooperation with the Department of Transportation, or to block or impede traffic through the alleys and driveways.
(B) The State Budget and Control Board must ensure that parking spaces are available in the garage below the Capitol Complex, in proximity to the buildings utilized by the legislative, judicial, and executive branches, in the locations in use on the effective date of this subsection, and assigned as follows:
(1) three hundred for the House of Representatives;
(2) two hundred twelve for the Senate;
(3) twenty-nine for the Judicial Department; and
(4) fifty-seven for the Office of the Governor."
Q. Section 10-11-90 of the 1976 Code is amended to read:
"Section 10-11-90. The watchmen and policemen employed by the Budget and Control Board for the protection of the property described in Sections 10-11-30 and 10-11-40 and subsection (2) of Section 10-11-80 are hereby vested with all of the powers, privileges and immunities of constables while on this area or in fresh pursuit of those violating the law in this area, provided that such watchmen and policemen take and file the oath required of peace officers, execute and file bond in the form required of State constables, in the amount of one thousand dollars, with the Budget and Control Board, and be duly commissioned by the Governor."
R. Section 10-11-110 of the 1976 Code is amended to read:
"Section 10-11-110. In connection with traffic and parking violations only, the watchmen and policemen referred to in Section 10-11-90, State highway patrolmen and policemen of the City of Columbia shall have the right to issue and use parking tickets of the type used by the City of Columbia, with such changes as are necessitated hereby, to be prepared and furnished by the Budget and Control Board South Carolina Department of Administration, upon the issuance of which the procedures shall be followed as prevail in connection with the use of parking tickets by the City of Columbia. Nothing herein shall restrict the application and use of regular arrest warrants."
S. Sections 11-9-610, 11-9-620, and 11-9-630 of the 1976 Code are amended to read:
"Section 11-9-610. The State Budget and Control Board South Carolina Department of Administration shall receive and manage the incomes and revenues set apart and applied to the Sinking Fund of the State. The department must report annually on the financial status of the Sinking Fund to the Budget and Control Board.
Section 11-9-620. All moneys monies arising from the redemption of lands, leases, and sales of property or otherwise coming to the State Budget and Control Board South Carolina Department of Administration for the Sinking Fund, shall must be paid into the State Treasury and shall be kept on a separate account by the treasurer as a fund to be drawn upon the warrants of the Board department for the exclusive uses and purposes which have been or shall be declared in relation to the Sinking Fund.
Section 11-9-630. The Subject to the approval of the State Budget and Control Board, the South Carolina Department of Administration shall sell and convey, for and on behalf of the State, all such real property, assets and effects belonging to the State as are not in actual public use, such sales to be made from time to time in such manner and upon such terms as it may deem most advantageous to the State. This shall not be construed to authorize the sale by the Board department of any property held in trust for a specific purpose by the State or the property of the State in the phosphate rocks or phosphatic deposits in the beds of the navigable streams and waters and marshes of the State."
T. Sections 11-35-3810 and 11-35-3830, both as amended by Act 153 of 1997, and Sections 11-35-3820 and 11-35-3840, both as amended by Act 376 of 2006, of the 1976 Code are further amended to read:
"Section 11-35-3810. Subject to existing provisions of law, the board Department of Administration shall promulgate regulations governing:
(1) the sale, lease, or disposal of surplus supplies by public auction, competitive sealed bidding, or other appropriate methods designated by such regulations;
(2) the transfer of excess supplies between agencies and departments.
Section 11-35-3820. Except as provided in Section 11-35-1580 and Section 11-35-3830 and the regulations pursuant to them, the sale of all state-owned supplies, or personal property not in actual public use must be conducted and directed by the designated board office Division of General Services of the South Carolina Department of Administration. The sales must be held at such places and in a manner as in the judgment of the designated board office Division of General Services is most advantageous to the State. Unless otherwise determined, sales must be by either public auction or competitive sealed bid to the highest bidder. Each governmental body shall inventory and report to the designated board office division all surplus personal property not in actual public use held by that governmental body for sale. The designated board office division shall deposit the proceeds from the sales, less expense of the sales, in the state general fund or as otherwise directed by regulation. This policy and procedure applies to all governmental bodies unless exempt by law.
Section 11-35-3830 (1) Trade-in Value. Unless otherwise provided by law, governmental bodies may trade-in personal property, the trade-in value of which may be applied to the procurement or lease of like items. The trade-in trade in value of such personal property shall not exceed an amount as specified in regulations promulgated by the board Department of Administration.
(2) Approval of Trade-in Sales. When the trade-in value of personal property of a governmental body exceeds the specified amount, the board Department of Administration shall have the authority to determine whether:
(a) the subject personal property shall be traded in and the value applied to the purchase of new like items; or
(b) the property shall be classified as surplus and sold in accordance with the provisions of Section 11-35-3820. The board departmental determination shall be in writing and be subject to the provisions of this chapter.
(3) Record of Trade-in Sales. Governmental bodies shall submit quarterly to the materials management officer a record listing all trade-in sales made under subsections (1) and (2) of this section.
Section 11-35-3840. The State Budget and Control Board may license for public sale publications, including South Carolina Business Opportunities, materials pertaining to training programs, and information technology products that are developed during the normal course of the board's activities. The items must be licensed at reasonable costs established in accordance with the cost of the items. All proceeds from the sale of the publications and materials must be placed in a revenue account and expended for the cost of providing the services."
U. Section 13-7-30 of the 1976 Code, as last amended by Act 357 of 2000, is further amended to read:
"Section 13-7-30. For purposes of this article, the State Budget and Control Board, upon recommendation of the South Carolina Department of Administration, hereinafter in this section referred to as the board, is designated as the agency of the State which shall have the following powers and duties that are in accord with its already established responsibilities for custody of state properties, and for the management of all state sinking funds, insurance, and analogous fiscal matters that are relevant to state properties:
(1) expend state funds in order to acquire, develop, and operate land and facilities. This acquisition may be by lease, dedication, purchase, or other arrangements. However, the state's functions under the authority of this section are limited to the specific purposes of this article;
(2) lease, sublease, or sell real and personal properties to public or private bodies;
(3) assure the maintenance of insurance coverage by state licensees, lessees, or sublessees as will in the opinion of the board protect the citizens of the State against nuclear incident that may occur on state-controlled atomic energy facilities;
(4) assume responsibility for extended custody and maintenance of radioactive materials held for custodial purposes at any publicly or privately operated facility located within the State, in the event the parties operating these facilities abandon their responsibility, or when the license for the facility is ultimately transferred to an agency of the State, and whenever the federal government or any agency of the federal government has not assumed the responsibility.
In order to finance such extended custody and maintenance as the board may undertake, the board may collect fees from private or public parties holding radioactive materials for custodial purposes. These fees must be sufficient in each individual case to defray the estimated cost of the board custodial management activities for that individual case. The fees collected for such custodial management activities shall also be sufficient to provide additional funds for the purchase of insurance which shall be purchased for the protection of the State and the general public for the period such radioactive material considering its isotope and curie content together with other factors may present a possible danger to the general public in the event of migration or dispersal of such radioactivity. All such fees, when received by the board, must be transmitted to the State Treasurer. The Treasurer must place the money in a special account, in the nature of a revolving trust fund, which may be designated 'extended care maintenance fund', to be disbursed on authorization of the board. Monies in the extended care maintenance funds must be invested by the board in the manner as other state monies. However, any interest accruing as a result of investment must accrue to this extended care maintenance fund. Except as authorized in Section 48-46-40(B)(7)(b) and (D)(2), the extended care maintenance fund must be used exclusively for custodial, surveillance, and maintenance costs during the period of institutional control and during any post-closure and observation period specified by the Department of Health and Environmental Control, and for activities associated with closure of the site. Funds from the extended care maintenance fund shall not be used for site closure activities or for custodial, surveillance, and maintenance performed during the post-closure observation period until all funds in the decommissioning trust account are exhausted.
(5) Enter into an agreement with the federal government or any of its authorized agencies to assume extended maintenance of lands donated, leased, or purchased from the federal government or any of its authorized agencies and used for development of atomic energy resources or as custodial site for radioactive material."
V. Section 13-7-830 of the 1976 Code, as last amended by Act 357 of 2000, is further amended to read:
"Section 13-7-830. The recommendations described in Section 13-7-620 shall be made available to the General Assembly, the Governor, and the Budget and Control Board, South Carolina Department of Administration."
W. Section 48-46-30(4) of the 1976 Code, as added by Act 357 of 2000, is amended to read:
"(4) 'Board' means the South Carolina Budget and Control Board or its designated official, and 'Department' means the South Carolina Department of Administration or its designee."
X. Section 48-46-40 of the 1976 Code, as last amended by Act 318 of 2006, is further amended to read:
"Section 48-46-40. (A)(1) The board, upon recommendation of the Department of Administration, shall approve disposal rates for low-level radioactive waste disposed at any regional disposal facility located within the State. The approval of disposal rates pursuant to this chapter is neither a regulation nor the promulgation of a regulation as those terms are specially used in Title 1, Chapter 23 Chapter 23 of Title 1.
(2) The board shall adopt a maximum uniform rate schedule for regional generators containing disposal rates that include the administrative surcharges specified in Section 48-46-60(B) and surcharges for the extended custody and maintenance of the facility pursuant to Section 13-7-30(4) and that do not exceed the approximate disposal rates, excluding any access fees and including a specification of the methodology for calculating fees for large components, generally applicable to regional generators on September 7, 1999. Any disposal rates contained in a valid written agreement that were applicable to a regional generator on September 7, 1999, that differ from rates in the maximum uniform rate schedule will continue to be honored through the term of such agreement. The maximum uniform rate schedule approved under this section becomes effective immediately upon South Carolina's membership in the Atlantic Compact. The maximum uniform rate schedule shall be the rate schedule applicable to regional waste whenever it is not superseded by an adjusted rate approved by the board pursuant to paragraph (3) of this subsection or by special disposal rates approved pursuant to paragraphs (5) or (6)(e) of this subsection.
(3) The board may at any time of its own initiative, at the request of a site operator, or at the request of the compact commission, adjust the disposal rate or the relative proportions of the individual components that constitute the overall rate schedule. Except as adjusted for inflation in subsection (4), rates adjusted in accordance with this section, that include the administrative surcharges specified in Section 48-46-60(B) and surcharges for the extended custody and maintenance of the facility pursuant to Section 13-7-30(4), may shall not exceed initial disposal rates set by the board, upon recommendation of the department pursuant to subsection (2).
(4) In March of each year the board shall adjust the rate schedule based on the most recent changes in the most nearly applicable Producer Price Index published by the Bureau of Labor Statistics as chosen by the board or a successor index.
(5) In consultation with the site operator and upon recommendation of the department, the board or its designee, on a case-by-case basis, may approve special disposal rates for regional waste that differ from the disposal rate schedule for regional generators set by the board pursuant to subsections (2) and (3). Requests by the site operator for such approval shall be in writing to the board. In approving such special rates, the board or its designee, shall consider available disposal capacity, demand for disposal capacity, the characteristics of the waste, the potential for generating revenue for the State, or other relevant factors; provided, however, that the board shall not approve any special rate for an entity owned by or affiliated with the site operator. Special disposal rates approved by the board under this subsection shall be in writing and shall be kept confidential as proprietary business information for one year from the date when the bid or the request for proposal containing the special rate is accepted by the regional generator; provided, however, that such special rates when accepted by a regional generator shall be disclosed to the compact commission and to all other regional generators, which shall, to the extent permitted by applicable law, keep them confidential as proprietary business information for one year from the date when the bid or request for proposal containing this special rate is accepted by the regional generator. Within one business day of a special disposal rate's acceptance, the site operator shall notify the board, the department, the compact commission, and the regional generators of each special rate that has been accepted by a regional generator, and the board, department, the compact commission, and regional generators may communicate with each other about such special rates. If any special rate approved by the board for a regional generator is lower than a disposal rate approved by the board for regional generators pursuant to subsections (2) and (3) for waste that is generally similar in characteristics and volume, the disposal rate for all regional generators shall be revised to equal the special rate for the regional generator. Regional generators may enter into contracts for waste disposal at such special rates and on comparable terms for a period of not less than six months. An officer of the site operator shall certify in writing to the board and the compact commission each month that no regional generator's disposal rate exceeds any other regional generator's special rate for waste that is generally similar in characteristics and volume, and such certification shall be subject to periodic audit by the board and the compact commission.
(6)(a) To the extent authorized by the compact commission, the board, upon recommendation of the Department of Administration and on behalf of the State of South Carolina, may enter into agreements with any person in the United States or its territories or any interstate compact, state, U.S. territory, or U.S. Department of Defense military installation abroad for the importation of waste into the region for purposes of disposal at a regional disposal facility within South Carolina. No waste from outside the Atlantic Compact region may be disposed at a regional disposal facility within South Carolina, except to the extent that the board is authorized by the compact commission to enter into agreements for importation of waste.
The board shall authorize the importation of nonregional waste into the region for purposes of disposal at the regional disposal facility in South Carolina so long as nonregional waste would not result in the facility accepting more than the following total volumes of all waste:
( i) 160,000 cubic feet in fiscal year 2001;
( ii) 80,000 cubic feet in fiscal year 2002;
(iii) 70,000 cubic feet in fiscal year 2003;
( iv) 60,000 cubic feet in fiscal year 2004;
( v) 50,000 cubic feet in fiscal year 2005;
( vi) 45,000 cubic feet in fiscal year 2006;
(vii) 40,000 cubic feet in fiscal year 2007;
(viii) 35,000 cubic feet in fiscal year 2008.
After fiscal year 2008, the board shall not authorize the importation of nonregional waste for purposes of disposal.
(b) The board, upon recommendation of the department may approve disposal rates applicable to nonregional generators. In approving disposal rates applicable to nonregional generators, the board, upon recommendation of the department may consider available disposal capacity, demand for disposal capacity, the characteristics of the waste, the potential for generating revenue for the State, and other relevant factors.
(c) Absent action by the board under subsection (b) above to establish disposal rates for nonregional generators, rates applicable to these generators must be equal to those contained in the maximum uniform rate schedule approved by the board pursuant to paragraph (2) or (3) of this subsection for regional generators unless these rates are superseded by special disposal rates approved by the board pursuant to paragraph (6)(e) of this subsection.
(d) Regional generators shall not pay disposal rates that are higher than disposal rates for nonregional generators in any fiscal quarter.
(e) In consultation with the site operator and upon recommendation of the Department of Administration, the board or its designee, on a case-by-case basis, may approve special disposal rates for nonregional waste that differ from the disposal rate schedule for nonregional generators set by the board. Requests by the site operator for such approval shall be in writing to the board. In approving such special rates, the board or its designee shall consider available disposal capacity, demand for disposal capacity, the characteristics of the waste, the potential for generating revenue for the State, and other relevant factors; provided, however, that the board shall not approve any special rate for an entity owned by or affiliated with the site operator. Special disposal rates approved by the board under this subsection shall be in writing and shall be kept confidential as proprietary business information for one year from the date when the bid or request for proposal containing the special rate is accepted by the nonregional generator; provided, however, that such special rates when accepted by a nonregional generator shall be disclosed to the compact commission and to all regional generators, which shall, to the extent permitted by applicable law, keep them confidential as proprietary business information for one year from the date when the bid or request for proposal containing the special rate is accepted by the nonregional generator. Within one business day of a special disposal rate's acceptance, the site operator shall notify the board department, the compact commission, and the regional generators in writing of each special rate that has been accepted by a nonregional generator, and the board, department, the compact commission, and regional generators may communicate with each other about such special rates. If any special rate approved by the board for a nonregional generator is lower than a disposal rate approved by the board for regional generators for waste that is generally similar in characteristics and volume, the disposal rate for all regional generators shall be revised to equal the special rate for the nonregional generator. Regional generators may enter into contracts for waste disposal at such special rate and on comparable terms for a period of not less than six months. An officer of the site operator shall certify in writing to the board, department and the compact commission each month that no regional generator disposal rate exceeds any nonregional generator's special rate for waste that is generally similar in characteristics and volume, and such certification shall be subject to periodic audit by the board, department and the compact commission.
(B)(1) Effective upon the implementation of initial disposal rates by the board under Section 48-46-40(A), the PSC is authorized and directed to identify allowable costs for operating a regional low-level radioactive waste disposal facility in South Carolina.
(2) In identifying the allowable costs for operating a regional disposal facility, the PSC shall:
(a) prescribe a system of accounts, using generally accepted accounting principles, for disposal site operators, using as a starting point the existing system used by site operators;
(b) assess penalties against disposal site operators if the PSC determines that they have failed to comply with regulations pursuant to this section; and
(c) require periodic reports from site operators that provide information and data to the PSC and parties to these proceedings. The Office of Regulatory Staff shall obtain and audit the books and records of the site operators associated with disposal operations as determined applicable by the PSC.
(3) Allowable costs include the costs of those activities necessary for:
(a) the receipt of waste;
(b) the construction of disposal trenches, vaults, and overpacks;
(c) construction and maintenance of necessary physical facilities;
(d) the purchase or amortization of necessary equipment;
(e) purchase of supplies that are consumed in support of waste disposal activities;
(f) accounting and billing for waste disposal;
(g) creating and maintaining records related to disposed waste;
(h) the administrative costs directly associated with disposal operations including, but not limited to, salaries, wages, and employee benefits;
(i) site surveillance and maintenance required by the State of South Carolina, other than site surveillance and maintenance costs covered by the balance of funds in the decommissioning trust fund or the extended care maintenance fund;
(j) compliance with the license, lease, and regulatory requirements of all jurisdictional agencies;
(k) administrative costs associated with collecting the surcharges provided for in subsections (B) and (C) of Section 48-46-60;
(l) taxes other than income taxes;
(m) licensing and permitting fees; and
(n) any other costs directly associated with disposal operations determined by the PSC to be allowable.
Allowable costs do not include the costs of activities associated with lobbying and public relations, clean-up and remediation activities caused by errors or accidents in violation of laws, regulations, or violations of the facility operating license or permits, activities of the site operator not directly in support of waste disposal, and other costs determined by the PSC to be unallowable.
(4) Within ninety days following the end of a fiscal year, a site operator may file an application with the PSC to adjust the level of an allowable cost under subsection (3), or to allow a cost not previously designated an allowable cost. A copy of the application must be provided to the Office of Regulatory Staff. The PSC shall process such application in accordance with its procedures. If such application is approved by the PSC, the PSC shall authorize the site operator to adjust allowable costs for the current fiscal year so as to compensate the site operator for revenues lost during the previous fiscal year.
(5) A private operator of a regional disposal facility in South Carolina is authorized to charge an operating margin of twenty-nine percent. The operating margin for a given period must be determined by multiplying twenty-nine percent by the total amount of allowable costs as determined in this subsection, excluding allowable costs for taxes and licensing and permitting fees paid to governmental entities.
(6) The site operator shall prepare and file with the PSC a Least Cost Operating Plan. The plan must be filed within forty-five days of enactment of this chapter and must be revised annually. The plan shall include information concerning anticipated operations over the next ten years and shall evaluate all options for future staffing and operation of the site to ensure least cost operation, including information related to the possible interim suspension of operations in accordance with subsection (B)(7). A copy of the plan must be provided to the Office of Regulatory Staff.
(7)(a) If the board, upon recommendation of the Department of Administration and upon the advice of the compact commission or the site operator, concludes based on information provided to the board department, that the volume of waste to be disposed during a forthcoming period of time does not appear sufficient to generate receipts that will be adequate to reimburse the site operator for its costs of operating the facility and its operating margin, then the board department shall direct the site operator to propose to the compact commission plans including, but not necessarily limited to, a proposal for discontinuing acceptance of waste until such time as there is sufficient waste to cover the site operator's operating costs and operating margin. Any proposal to suspend operations must detail plans of the site operator to minimize its costs during the suspension of operations. Any such proposal to suspend operations must be approved by the Department of Health and Environmental Control with respect to safety and environmental protection.
(b) Allowable costs applicable to any period of suspended operations must be approved by the PSC according to procedures similar to those provided herein for allowable operating costs. During any such suspension of operations, the site operator must be reimbursed by the board department from the extended care maintenance fund for its allowable costs and its operating margin. During the suspension funding to reimburse the board department, the PSC, and the State Treasurer under Section 48-46-60(B) and funding of the compact commission under Section 48-46-60(C) must also be allocated from the extended care maintenance fund as approved by the board department based on revised budgets submitted by the PSC, State Treasurer, and the compact commission.
(c) Notwithstanding any disbursements from the extended care maintenance fund in accordance with any provision of this act, the board department shall continue to ensure, in accordance with Section 13-7-30, that the fund remains adequate to defray the costs for future maintenance costs or custodial and maintenance obligations of the site and other obligations imposed on the fund by this chapter.
(d) The PSC may promulgate regulations and policies necessary to execute the provisions of this section.
(8) The PSC may use any standard, formula, method, or theory of valuation reasonably calculated to arrive at the objective of identifying allowable costs associated with waste disposal. The PSC may consider standards, precedents, findings, and decisions in other jurisdictions that regulate allowable costs for radioactive waste disposal.
(9) In all proceedings held pursuant to this section, the board shall participate as a party representing the interests of the State of South Carolina, and the compact commission may participate as a party representing the interests of the compact states. The Executive Director of the Office of Regulatory Staff and the Attorney General of the State of South Carolina shall be parties to any such proceeding. Representatives from the Department of Health and Environmental Control shall participate in proceedings where necessary to determine or define the activities that a site operator must conduct in order to comply with the regulations and license conditions imposed by the department. Other parties may participate in the PSC's proceedings upon satisfaction of standing requirements and compliance with the PSC's procedures. Any site operator submitting records and information to the PSC may request that the PSC treat such records and information as confidential and not subject to disclosure in accordance with the PSC's procedures.
(10) In all respects in which the PSC has power and authority under this chapter, it shall conduct its proceedings under the South Carolina Administrative Procedures Act and the PSC's rules and regulations. The PSC is authorized to compel attendance and testimony of a site operator's directors, officers, agents, or employees.
(11) At any time the compact commission, the board, or any generator subject to payment of rates set pursuant to this chapter may file a petition against a site operator alleging that allowable costs identified pursuant to this chapter are not in conformity with the directives of this chapter or the directives of the PSC or that the site operator is otherwise not acting in conformity with the requirements of this chapter or directives of the PSC. Upon filing of the petition, the PSC shall cause a copy of the petition to be served upon the site operator. The petitioning party has the burden of proving that allowable costs or the actions of the site operator do not conform. The hearing shall conform to the rules of practice and procedure of the PSC for other cases.
(12) The PSC shall encourage alternate forms of dispute resolution including, but not limited to, mediation or arbitration to resolve disputes between a site operator and any other person regarding matters covered by this chapter.
(C) The operator of a regional disposal facility shall submit to the South Carolina Department of Revenue, the PSC, the Office of Regulatory Staff, and the board within thirty days following the end of each quarter a report detailing actual revenues received in the previous fiscal quarter and allowable costs incurred for operation of the disposal facility.
(D)(1) Within 30 days following the end of the fiscal year the operator of a regional disposal facility shall submit a payment made payable to the South Carolina Department of Revenue in an amount that is equal to the total revenues received for waste disposed in that fiscal year (with interest accrued on cash flows in accordance with instructions from the State Treasurer) minus allowable costs, operating margin, and any payments already made from such revenues pursuant to Section 48-46-60(B) and (C) for reimbursement of administrative costs to state agencies and the compact commission. The Department of Revenue shall deposit the payment with the State Treasurer.
(2) If in any fiscal year total revenues do not cover allowable costs plus the operating margin, the board department must reimburse the site operator its allowable costs and operating margin from the extended care maintenance fund within thirty days after the end of the fiscal year. The board, upon recommendation of the department, shall as soon as practicable authorize a surcharge on waste disposed in an amount that will fully compensate the fund for the reimbursement to the site operator. In the event that total revenues for a fiscal year do not cover allowable costs plus the operating margin, or quarterly reports submitted pursuant to subsection (C) indicate that such annual revenue may be insufficient, the board department shall consult with the compact commission and the site operator as early as practicable on whether the provisions of Section 48-46-40(B)(7) pertaining to suspension of operations during periods of insufficient revenues should be invoked.
(E) Revenues received pursuant to item (1) of subsection (D) must be allocated as follows:
(1) The South Carolina State Treasurer shall distribute the first two million dollars received for waste disposed during a fiscal year to the County Treasurer of Barnwell County for distribution to each of the parties to and beneficiaries of the order of the United States District Court in C.A. No. 1:90-2912-6 on the same schedule of allocation as is established within that order for the distribution of 'payments in lieu of taxes' paid by the United States Department of Energy.
(2) All revenues in excess of two million dollars received from waste disposed during the previous fiscal year must be deposited in a fund called the 'Nuclear Waste Disposal Receipts Distribution Fund'. Any South Carolina waste generator whose disposal fees contributed to the fund during the previous fiscal year may submit a request for a rebate of 33.33 percent of the funds paid by the generator during the previous fiscal year for disposal of waste at a regional disposal facility. These requests along with invoices or other supporting material must be submitted in writing to the State Treasurer within fifteen days of the end of the fiscal year. For this purpose disposal fees paid by the generator must exclude any fees paid pursuant to Section 48-46-60(C) for compact administration and fees paid pursuant to Section 48-46-60(B) for reimbursement of the PSC, the Office of Regulatory Staff, the State Treasurer, and the board for administrative expenses under this chapter. Upon validation of the request and supporting documentation by the State Treasurer, the State Treasurer shall issue a rebate of the applicable funds to qualified waste generators within sixty days of the receipt of the request. If funds in the Nuclear Waste Disposal Receipts Distribution Fund are insufficient to provide a rebate of 33.33 percent to each generator, then each generator's rebate must be reduced in proportion to the amount of funds in the account for the applicable fiscal year."
(3) All funds deposited in the Nuclear Waste Disposal Receipts Distribution Fund for waste disposed for each fiscal year, less the amount needed to provide generators rebates pursuant to item (2), shall be deposited by the State Treasurer in the 'Children's Education Endowment Fund'. Thirty percent of these monies must be allocated to Higher Education Scholarship Grants and used as provided in Section 59-143-30, and seventy percent of these monies must be allocated to Public School Facility Assistance and used as provided in Chapter 144 of Title 59.
(F) Effective beginning fiscal year 2001-2002, there is appropriated annually from the general fund of the State to the Higher Education Scholarship Grants share of the Children's Education Endowment whatever amount is necessary to credit to the Higher Education Scholarship Grants share an amount not less than the amount credited to that portion of the endowment in fiscal year 1999-2000. Revenues credited to the endowment pursuant to this subsection, for purposes of Section 59-143-10, are deemed to be received by the endowment pursuant to the former provisions of Section 48-48-140(C)."
Y. Section 48-46-50(A) of the 1976 Code, as added by Act 357 of 2000, is amended to read:
"(A) The Governor shall appoint two commissioners to the Atlantic Compact Commission and may appoint up to two alternate commissioners. These alternate commissioners may participate in meetings of the compact commission in lieu of and upon the request of a South Carolina commissioner. Technical representatives from the Department of Health and Environmental Control, the board, the Department of Administration, the PSC, and other state agencies may participate in relevant portions of meetings of the compact commission upon the request of a commissioner, alternate commissioner, or staff of the compact commission, or as called for in the compact commission bylaws."
Z. Section 48-46-60 of the 1976 Code, as added by Act 357 of 2000, is amended to read:
"Section 48-46-60. (A) The Governor and the board are authorized to take such actions as are necessary to join the Atlantic Compact including, but not limited to, petitioning the Compact Commission for membership and participating in any and all rulemaking processes. South Carolina's membership in the Atlantic Compact pursuant to this chapter is effective July 1, 2000, if by that date the Governor certifies to the General Assembly that the Compact Commission has taken each of the actions specified below. If the Compact Commission by July 1, 2000, has not taken each of the actions specified below, then South Carolina's membership shall become effective as soon thereafter as the Governor certifies that the Atlantic Compact Commission has taken these actions:
(1) adopted a binding regulation or policy in accordance with Article VII(e) of the compact establishing conditions for admission of a party state that are consistent with this act and ordered that South Carolina be declared eligible to be a party state consistent with those conditions;
(2) adopted a binding regulation or policy in accordance with Article IV(i)(11) of the Atlantic Compact authorizing a host state to enter into agreements on behalf of the compact and consistent with criteria established by the compact commission and consistent with the provisions of Section 48-46-40(A)(6)(a) and Section 48-46-50(D) with any person for the importation of waste into the region for purposes of disposal, to the extent that these agreements do not preclude the disposal facility from accepting all regional waste that can reasonably be projected to require disposal at the regional disposal facility consistent with subitem (5)(b) of this section;
(3) adopted a binding regulation or policy in accordance with Article IV(i)(12) of the Atlantic Compact authorizing each regional generator, at the generator's discretion, to ship waste to disposal facilities located outside the Atlantic Compact region;
(4) authorized South Carolina to proceed with plans to establish disposal rates for low-level radioactive waste disposal in a manner consistent with the procedures described in this chapter;
(5) adopted a binding regulation, policy, or order officially designating South Carolina as a volunteer host state for the region's disposal facility, contingent upon South Carolina's membership in the compact, in accordance with Article V.b.1. of the Atlantic Compact, thereby authorizing the following compensation and incentives to South Carolina:
(a) agreement, as evidenced in a policy, regulation, or order that the compact commission will issue a payment of twelve million dollars to the State of South Carolina. Before issuing the twelve million-dollar payment, the compact commission will deduct and retain from this amount seventy thousand dollars, which will be credited as full payment of South Carolina's membership dues in the Atlantic Compact. The remainder of the twelve million-dollar payment must be credited to an account in the State Treasurer's office, separate and distinct from the fund, styled 'Barnwell Economic Development Fund'. This fund, and earnings on this fund which must be credited to the fund, may only be expended for purposes of economic development in the Barnwell County area including, but not limited to, projects of the Barnwell County Economic Development Corporation and projects of the Tri-County alliance which includes Barnwell, Bamberg, and Allendale Counties and projects in the Williston area of Aiken County. Economic development includes, but is not limited to, industrial recruitment, infrastructure construction, improvement, and expansion, and public facilities construction, improvement, and expansion. These funds must be spent according to guidelines established by the Barnwell County governing body and upon approval of the board, and upon recommendation of the department. Expenditures must be authorized by the Barnwell County governing body and with the approval of the board, and upon recommendation of the department. Upon approval of the Barnwell County governing body and the board department, the State Treasurer shall submit the approved funds to the Barnwell County Treasurer for disbursement pursuant to the authorization;
(b) adopted a binding regulation, policy, or order consistent with the regional management plan developed pursuant to Article V(a) of the Atlantic Compact, limiting Connecticut and New Jersey to the use of not more than 800,000 cubic feet of disposal capacity at the regional disposal facility located in Barnwell County, South Carolina, and also ensuring that up to 800,000 cubic feet of disposal capacity remains available for use by Connecticut and New Jersey unless this estimate of need is later revised downward by unanimous consent of the compact commission;
(c) agreement, as evidenced in a policy or regulation, that the compact commission headquarters and office will be relocated to South Carolina within six months of South Carolina's membership; and
(d) agreement, as evidenced in a policy or regulation, that the compact commission will, to the extent practicable, hold a majority of its meetings in the host state for the regional disposal facility.
(B) The board, the Department of Administration, the State Treasurer, and the PSC shall provide the required staff and may add additional permanent or temporary staff or contract for services, as well as provide for operating expenses, if necessary, to administer new responsibilities assigned under this chapter. In accordance with Article V.f.2. of the Atlantic Compact the compensation, costs, and expenses incurred incident to administering these responsibilities may be paid through a surcharge on waste disposed at regional disposal facilities within the State. To cover these costs the board shall impose a surcharge per unit of waste received at any regional disposal facility located within the State. A site operator shall collect and remit these fees to the board in accordance with the board's directions. All such surcharges shall be included within the disposal rates set by the board pursuant to Section 48-46-40.
(C) In accordance with Article V.f.3. of the Atlantic Compact, the compact commission shall advise the board department at least annually, but more frequently if the compact commission deems appropriate, of the compact commission's costs and expenses. To cover these costs the board department shall impose a surcharge per unit of waste received at any regional disposal facility located within the State as determined in Section 48-46-40. A site operator shall collect and remit these fees to the board department in accordance with the board department's directions, and the board department shall remit those fees to the compact commission."
AA. Section 48-46-90(A) of the 1976 Code, as added by Act 357 of 2000, is amended to read:
"(A) In accordance with Section 13-7-30, the board department, or its designee, is responsible for extended custody and maintenance of the Barnwell site following closure and license transfer from the facility operator. The Department of Health and Environmental Control is responsible for continued site monitoring."
BB. Section 48-52-410 of the 1976 Code, as added by Act 449 of 1992, is amended to read:
"Section 48-52-410. There is established the State Energy Office within the State Budget and Control Board Department of Administration which shall serve as the principal energy planning entity for the State. Its primary purpose is to develop and implement a well-balanced energy strategy and to increase the efficiency of use of all energy sources throughout South Carolina through the implementation of the Plan for State Energy Policy. The State Energy Office must not function as a regulatory body."
CC. Section 48-52-440 of the 1976 Code, as last amended by Act 318 of 2006, is further amended to read:
"Section 48-52-440. There is established the Energy Advisory Committee, whose members are appointed by the State Budget and Control Board Director of the Department of Administration, except as provided in item (14) of this section. Members shall serve at the pleasure of the State Budget and Control Board Director of the Department of Administration except that those appointed pursuant to item (14) shall serve for a term coterminous with that of their appointing authority. The committee is composed as follows:
( 1) two representatives of investor-owned electricity companies;
( 2) two representatives of electric cooperatives;
( 3) one representative of the South Carolina Public Service Authority, who shall serve ex officio;
( 4) one representative of municipally-owned electric utilities;
( 5) one representative of publicly-owned natural gas companies;
( 6) one representative of investor-owned gas companies;
( 7) one representative of oil suppliers or dealers;
( 8) one representative of propane suppliers or dealers;
( 9) one representative of nonprofit public transportation providers;
(10) two representatives of industrial consumers;
(11) two representatives of commercial consumers;
(12) two representatives of individual consumers; one must be the Executive Director of the Office of Regulatory Staff or his designee, who shall serve ex officio;
(13) two representatives of environmental groups; and
(14) one at-large member appointed by the Governor.
The Budget and Control Board Director of the Department of Administration shall elect appoint one of the committee members to serve as chairman. The members of the Energy Advisory Committee are not eligible for per diem payments or for reimbursement for lodging or meals. The functions of the Energy Advisory Committee are advisory to the State Energy Office. The committee shall meet at least annually and at the call of the chair or at the request of at least six members to receive information on the activities of the State Energy Office and the formulation and implementation of the state energy action plan. It may comment and advise on the activities and the plan as considered appropriate by members of the committee. The State Energy Office may seek advice and guidance from the committee as considered appropriate by the director of the office. Members shall adopt rules governing meeting attendance and abide by these rules."
DD. Section 48-52-460 of the 1976 Code, as added by Act 449 of 1992, is amended to read:
"Section 48-52-460. The establishment of the State Energy Office within the State Budget and Control Board, as provided for in this part, Department of Administration must be evaluated if further restructuring or reorganizing of state government takes place so as to identify and provide for the proper placement of the office upon further restructuring or reorganizing."
EE. Section 48-52-680(C) of the 1976 Code, as added by Act 449 of 1992, is amended to read:
"(C) The State Energy Office shall provide the Office of Property Management of the Budget and Control Board, Division of General Services, information to be used in evaluating energy costs for buildings or portions of buildings proposed to be leased by governmental bodies that are defined in and subject to the Consolidated Procurement Code. The information provided must be considered with the other criteria provided by law by a governmental body before entering into a real property lease."
FF. Section 44-53-530(a) and (b) of the 1976 Code, as last amended by Act 345 of 2006, is further amended to read:
"Section 44-53-530. (a) Forfeiture of property defined in Section 44-53-520 must be accomplished by petition of the Attorney General or his designee or the circuit solicitor or his designee to the court of common pleas for the jurisdiction where the items were seized. The petition must be submitted to the court within a reasonable time period following seizure and shall set forth the facts upon which the seizure was made. The petition shall describe the property and include the names of all owners of record and lienholders of record. The petition shall identify any other persons known to the petitioner to have interests in the property. Petitions for the forfeiture of conveyances shall also include: the make, model, and year of the conveyance, the person in whose name the conveyance is registered, and the person who holds the title to the conveyance. The petition shall set forth the type and quantity of the controlled substance involved. A copy of the petition must be sent to each law enforcement agency which has notified the petitioner of its involvement in effecting the seizure. Notice of hearing or rule to show cause must be directed to all persons with interests in the property listed in the petition, including law enforcement agencies which have notified the petitioner of their involvement in effecting the seizure. Owners of record and lienholders of record may be served by certified mail, to the last known address as appears in the records of the governmental agency which records the title or lien.
The judge shall determine whether the property is subject to forfeiture and order the forfeiture confirmed. If the judge finds a forfeiture, he shall then determine the lienholder's interest as provided in this article. The judge shall determine whether any property must be returned to a law enforcement agency pursuant to Section 44-53-582.
If there is a dispute as to the division allocation of the proceeds of forfeited property among participating law enforcement agencies, this issue must be determined by the judge. The proceeds from a sale of property, conveyances, and equipment must be disposed of pursuant to subsection (e) of this section.
All property, conveyances, and equipment which will not be reduced to proceeds may be transferred to the law enforcement agency or agencies or to the prosecution agency. Upon agreement of the law enforcement agency or agencies and the prosecution agency, conveyances and equipment may be transferred to any other appropriate agency. Property transferred must not be used to supplant operating funds within the current or future budgets. If the property seized and forfeited is an aircraft or watercraft and is transferred to a state law enforcement agency or other state agency pursuant to the provisions of this subsection, its use and retainage by that agency shall be at the discretion and approval of the Budget and Control Board South Carolina Department of Administration.
If a defendant or his attorney sends written notice to the petitioner or the seizing agency of his interest in the subject property, service may be made by mailing a copy of the petition to the address provided and service may not be made by publication. In addition, service by publication may not be used for a person incarcerated in a South Carolina Department of Corrections facility, a county detention facility, or other facility where inmates are housed for the county where the seizing agency is located. The seizing agency shall check the appropriate institutions after receiving an affidavit of nonservice before attempting service by publication.
(b) If the property is seized by a state law enforcement agency and is not transferred by the court to the seizing agency, the judge shall order it transferred to the Division of General Services of the Department of Administration for sale. Proceeds may be used by the division for payment of all proper expenses of the proceedings for the forfeiture and sale of the property, including the expenses of seizure, maintenance, and custody, and other costs incurred by the implementation of this section. The net proceeds from any sale must be remitted to the State Treasurer as provided in subsection (g) of this section. The Division of General Services of the South Carolina Department of Administration may authorize payment of like expenses in cases where monies, negotiable instruments, or securities are seized and forfeited."
GG. Section 44-96-140 of the 1976 Code is amended to read:
"Section 44-96-140. (A) Not later than twelve months after the date on which the department submits the state solid waste management plan to the Governor and to the General Assembly, the General Assembly, the Governor's Office of the Governor, the Judiciary, each state agency, and each state-supported institution of higher education shall:
(1) establish a source separation and recycling program in cooperation with the department and the Division of General Services of the State Budget and Control Board South Carolina Department of Administration for the collection of selected recyclable materials generated in state offices throughout the State including, but not limited to, high-grade office paper, corrugated paper, aluminum, glass, tires, composting materials, plastics, batteries, and used oil;
(2) provide procedures for collecting and storing recyclable materials, containers for storing materials, and contractual or other arrangements with collectors or buyers of the recyclable materials, or both;
(3) evaluate the amount of waste paper material recycled and make all necessary modifications to the recycling program to ensure that all waste paper materials are recycled to the maximum extent feasible; and
(4) establish and implement, in cooperation with the department and the Division of General Services of the Department of Administration, a solid waste reduction program for materials used in the course of agency operations. The program shall be designed and implemented to achieve the maximum feasible reduction of solid waste generated as a result of agency operations.
(B) Not later than September fifteen of each year, each state agency and each state-supported institution of higher learning shall submit to the department a report detailing its source separation and recycling program and a review of all goods and products purchased during the previous fiscal year by those agencies and institutions containing recycled materials using the content specifications established by the Office of Materials Management Division of General Services, Department of Administration.
(C) By November first of each year the department shall submit a report to the Governor and to the General Assembly reviewing all goods and products purchased by the State and determining what percentage of state purchases contain recycled materials using content specifications established by the Office of Materials Management, Division of General Services, Department of Administration. The report also must review existing procurement regulations for the purchase of products and materials and must identify any portions of such regulations that discriminate against products and materials with recycled content and products and materials which are recyclable.
(D) Not later than one year after this chapter is effective, the Division of General Services, Department of Administration shall amend the procurement regulations to eliminate the portions of the regulations identified in its report as discriminating against products and materials with recycled content and products and materials which are recyclable.
(E) Not later than one year after the effective date of the amendments to the procurement regulations, the General Assembly, the Governor's Office of the Governor, the Judiciary, all state agencies, all political subdivisions using state funds to procure items, and all persons contracting with such agency or political subdivision where such persons procure items with state funds shall procure products and materials with recycled content and products and materials which are recyclable where practicable, as determined by the Office of Materials Management, Division of General Services, Department of Administration. The list of recycled content specifications must be updated annually. It is the goal of the General Assembly for state and local governmental agencies to reflect a twenty-five percent goal in their procurement policies. The decision not to procure such items shall be based on a determination that such procurement items:
(1) are not available within a reasonable period of time;
(2) fail to meet the performance standards set forth in the applicable specifications; or
(3) are only available at a price that exceeds by more than seven and one- half percent the price of alternative items.
(F) Not later than six months after this chapter is effective, and annually thereafter, the Department of Transportation shall submit a report to the Governor and to the General Assembly on the use of:
(1) compost as a substitute for regular soil amendment products in all highway projects;
(2) solid waste including, but not limited to, ground rubber from tires and fly ash or mixtures of them from coal-fired electrical facilities in road surfacing of subbase materials;
(3) solid waste including, but not limited to, glass aggregate, plastic, and fly ash in asphalt or concrete; and
(4) recycled mixed-plastic materials for guardrail posts, right-of-way fence posts, and sign supports."
SECTION 14. During the year 2015, the Legislative Audit Council shall conduct a performance review of the provisions of this act to determine its effectiveness and achievements with regard to the more efficient performance of the functions and duties of the various agencies provided for in this act and the costs savings and benefits to the State.
SECTION 15. References in the 1976 Code to the "secretary" that refer to the powers, duties, and functions being exercised by Secretary of State concerning the statewide registration of corporations and other business entities, Uniform Commercial Code registrations and filings, the registration of business opportunity sellers as provided for in Chapter 57, Title 39, licensing employment agencies, and service as the central franchising authority to grant a franchise for cable services, as defined in 47 U.S.C. Section 522(6), mean the "Department of Commerce" or "department", as appropriate. References in the 1976 Code to the "secretary" that refer to the powers, duties, and functions being exercised by the Secretary of State concerning incorporation of municipalities and special purpose districts, annexations of land, escheatment of real property to the State, certification of Notaries Public and Apostilles, the registration of charities and fundraisers, service as the agent of service of process on foreign corporations not authorized to do business in the State, registration of trademarks, and consumer protection, mean the "Attorney General." References in the 1976 Code to the "Comptroller General" mean the "State Auditor." The Code Commissioner shall changes references in the 1976 Code to conform with this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 16. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 17. Unless otherwise provided, this act takes effect July 1, 2008.
This web page was last updated on Monday, October 10, 2011 at 1:30 P.M.