ML20092E150
| ML20092E150 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/07/1984 |
| From: | Bernard Thomas SOUTH CAROLINA, STATE OF |
| To: | Mcswain B SOUTH CAROLINA, STATE OF |
| References | |
| I-EP-021, I-EP-21, OL, NUDOCS 8406220303 | |
| Download: ML20092E150 (7) | |
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RICHARD W. RILEY Governor Nj 6 8I bG~
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P O Box 21398 Pnone 758-6000 Columbia. S C. 29221 MLAR REGULATORY t0mflSSION CfficialJah, n
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January 18, aM,________,___
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' " ' " " ' ' ' - V.. _ _.. _ _ utno tir. Bill McSwain cor.re c#r,
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Emergency Preparedness Division contractor
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Dear Bill,
I met with Assistant Attorney General John Wilson on this date in reference to our problem at Carowinds.
lle advised I was correct in stating that only the Covernor in the State of South Carolina could ask for an evacuation.
Ilome rule is in 2ffect in this State; however, it does not give local authority any power as to the question of evacuation.
Specifically speaking of Carowinds, Jim Carroll's Office can advise the management of each phase in the emergency process and can suggest an early close down as they normally would, but should not tell them to evacuate. The term evacuation should be avoided unless an order has been signed by the Governor; this is true for any large private employer in, York County. We'.should put Carowinds management on notice that if they anticipate needi.ng state or local assistance in closing down their operation during'an emergency, they should entertain the possibility of doing so during an alert.
If they wait until a site area emergency is declared and our road block and security plans are implemented, it will be some delay in providing the law enforcement assistance. lir. Uilson and I.both agree that the decision to close Carowinds is entirely up to their own management, and-government of ficials can only provide them with information as to the seriousness of the situation.
Enclosed you will find a copy of the Attorney General's Opinion as to the evacuation dated September 5, 1980.
4 8406220303 0405'J7 PDR ADOCK 05000413 Q
Mr. Bill McSwsin s,..,
Janusry 18. 1983 1
Page 2 If I can be of further service to you on this matter, please let me know.
Sincerely, i
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Ben F. Thomas, Lieutenant i.
Criminal Intelligence Section i
South Carolina Law Enforcement Division 4
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BFT/rm Enclosure i
r cc: Jim Carroll j
John P. Wilson N.
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JOHN P. WILSON W ALJL HA8.WlON O8 e eCE tH e*LDeNa D ANif L R. McLEOD 5tNiOR A$$6SI ANI AI1Qf4NLV GCPeLilA6
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146 LPesor.t oo) 75n 7u12 OPINION NC.:
DATE:
September 5, 1980-County and municipal governments and officials do not,
,i under existimg law, have the authority to direct and compel an evacuation of all or part of their populace when faced with a real or threatened emergency or disaster-related situation.
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The Governor or his regular or interim successor, as "
provided for by law, would be authorized, upon declaring an emergency to exist, to direct and cotapel an evacuation of all or part of the ~ populace from any stricken or threatened area of the State and to utilize the additio.nal emergency powers granted by law.
TO:
Director, South Carolina Disaster Preparedness Division BY:
. John P. Wilson, Senior Assistant Attorney Cencral QUESTIONS PRESENTED.
Do " local" officials or governing bodies have the authority tb order and compel an evacuation of all or part of the populace within their respective jurisdictions?
Who is empowered to exercise the emergency powers pro-vided the Governor in the e. vent of his death, disability, etc.
or' temporary absence from the State?
STATUTES,' CASES, ETC. INVOINED:
Article IV, S$ 6, 7, 11 and 12 Article VII. S 1 and Article,VIII, 5 7 and'8, South Carolina Constitution, 1895, as amended; $5 1-3-120 to 1-3-140, S 1-9-90, 5 4-9-70, S 4'9-130,.5 5-7-30, 5 5-7-250, Code of Laws of South Carolina (1976): 5 25-1-440, Code of Laws of South Carolina (1976),
as amended; Act No. 243, 1975 Acts and Joint Resolutions and Act 5
No. 199, 1979 Acts and Joint Resolutions; 1976 Op. Atty.
Gen. No.77-309, p. 236.
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DISCUSSION OF ISSUES:
No real imagination is required to envision the poten-t.ially destructive and life-threatening nature of a major flood, storm, nuclear accident, or other natural or man-made calamity.
The health, welfare, and safety of the lives and property of the people are beyond question matters of public concern, and reasonable regulations and laws designed to pre-serve and protect the same are clearly contained in the police power inherent in the sovereign.
See Article X11, Section 1, Constitution of the State of South Carolina, 1895, as amended.
Nevertheless, there is no similar inherent " police power" in lesser political subdivisions such as counties and muni-cipalities, as cach derives its authority from the sovereign.
1, Thus, in South Carolina the General Assembly provides by genera'l law for the structure, organization, powers, duties, functions, and responsibilities of counties and municipalities.
See Article VIII, Sections 7 and 8, Constitution of the State of South Carolina, 1895, as amended.
In furtherance of its Constitutional mandate, the General Assembly has provided such general legislation for counties and municipalities.
"Home Rule" was accomplished through the passage of Act No. 283, 1975 Acts and Joint Resolutions of the General Assembly.
Pertinent prgvis' ions of that Act are now found in Section 4-9-30 and Section 5-7-30, code of Laws of South Carolina (1976) which set forth the enumerated powers conferred upon counties and municipalities respectively.
Each provision'makes clear that the grant of power is subject to the general law of the State.
There is no enumerated power expressly conferred upon such political subdivisions as would reasonably include the extraordinary authority to direct and compel a public evacuation.
Moreover, other portions of the "Home Rule" Legislation now codified as Section 4-9-130 and Section 5-7,250, Code of Laws of South Carolina (1976) pro-vide only limited authority to counties and municipalities "to meet public emergencies affecting lifb, health, safety, or the property of the people" by empowering their councils to adopt emergency ordinances upon the affirmative vote of at,least two-thirds of the council members present, but which automatically expire at the end of sixty days from enactment.
The. empowering of any government or officials with the authority to order and compel an ovacuation, thereby forcibly separating its citizens from their homes, businesses, property and even families is clearly at odds with the fundamental rights, freedoms and privileges which are the bedrock of our nation.
Obviously, within such extraordinary power lies the extraordinary opportunity for abuse.
Nevertheless, no one would seriously chall. age that such an emergency power may be needed g'iven the ever present potential of enemy attack, 8
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i epidemic, natural disas ter or nuclear accident.
Similarly,
'l it should be readily apparent that an evacuation may ucll in-volve problems of control and coordination beycud the area or jurisdiction directly involved.
It would thus not be surprising to find such extraordinary power sparingly granted and bestoued only upon that authority having the utinost responsiveness and responsibility to all the people.
Appare,ntly recognizing that actual or threatened disaster or public calamity will often extend beyond political boundaries and exceed local capabilities, our General Assembly had previously enacted general legislation dealing with civil defense and dis-aster preparedness at the State level.
Most recently, Act No.
199, 1979 Acts and Joint Resolutions, established the South Carolina Enfergency Preparedness Division within the Office of f,
the Adjutan,t General and seemingly shifted to the State level the overall and final responsibility for emergency prepared-ness and response.
Retained in the 1979 legislation and now found in Section 25-1-440, Code of Laws of South Carolina (1976) as amended, was the express delegation of emergency powers to the Governor as follous.
(a)
The Governor, when an emergency has been declared, as the elected Chief Executive of the State, shall be responsible for the safety, security and welfare of the State and shall be empowered by the following additional authority to adequately discharge a
this responsibility.
(2)
Declare a state of emergency for_ all or part of the State if he finds a disaster aus occurred, or that the threat thereof is eminent and extraordinary n.casures are deemed necessary to cope with the existing or anticipated situation.
A declared state of emergency'shall not continue for a period of more than fifteen days without the consent of the General Assembly.
(7)
Direct and compel evacuation of all or part of'the populace from any strichen or threatened.'
area if this action is deemed necessary for the preservation of life'or other emergency mitiga-tion,. response, or recovery; to prescribe routes, s
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modes of tranni. >rtation and destination in con-nection with evacuation; and to control ingress and egress at an emergency area, the movement of persons within the area and the occupancy of premises therein.
(Emphasis supplied.)
Given the existence of a general law expressly empowering the Governbr to direct and compel an evacuation frem any part of the State and the uniquely "non-local" nature of such a course of action, I believe that local governments have been pre-empted in the matter.
Obviously, only the Governor of the State has the clear legislative authority cnd available resources at his command to order and enforce a public evacua-tion.
In the event that the Governor is unavailable by reason of death, disqualification, disability, impeachment, resigna-tion or absence from the State, his regular or interim successor in office would be so empowered.
The normal order of succession as provided for under the Constitution and statutes of this State would be Lieutenant Governor, President pro-tempore of i
the Senate and Speaker of the House of Representatives.
See Article IV, SS 6 and 7, 11 and 12, South cm, lina Constitution, 1895, as amended; SS 1-3-120 to 1-3-140., Code of Laws of South Carolina (1976); 1976-77 Op. Atty. den., 30.77-309, p.
236.
Additionally, the " Emergency Interim Executive and Judicial Succession Act", as now contained in Sections 1-9-10 to 1-9-110,.
Code of Laws of South Carolina (1976) authorizes, in successive order, the Secretary of State, State Treasurer, and Attorney General to act as Governor upon the unav,ailability of each of the above listed normal successors, but only in the event of an "attrek" upon the United States.
CONCLUSION:.
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It is accordingly the opinion of this Office that, under existing law, neither a county nor municipal governing body or official has the authority to direct and compel an evacua-tion of any of its populace'.
This is not to say, however, that local public officials, including law enforcement, should not continue to warn or encourage evacuation when hazardous or dangerou's conditions exist on the local level.
Should the General Assembly decide to expressly grant this extraordinary power on a limited basis to counties and munici--
palitics (i.e. evacuation to other areas within the control and-jurisdiction of the entity involved), I see na impediment to such legislation.
s Further, it is the opinion of this Office that in the event i
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resignation, itnpeachment, disspialification or teiapurary ab-sence from the State, the emergency powers established by law for that of fice niay be exercised by his regular ur interim successors in the following order:
Lieutenant Cavernor, Presi-dent pro-tempore of the Senate, Speaker of the llouse, and in the event of an " attack" upon the United States, then the Secre-tary of State, State Treasurer and Attorney Generale 0
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JOHti P. WILSON
~~ Senior Assistant Attorney General REVIEWED'AND APPROVED:
%C DEPUTY ATT0lWEY GEUERAL
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