The attorney general's office has sent an important message to state agencies: Don't even think about charging fees for services, no matter how those charges are disguised, unless there is specific permission from the General Assembly.
The message was in an opinion requested by Charleston state Sen. Glenn McConnell. The senator asked for the opinion as a preventive measure. He had heard rumblings that the Department of Public Safety might be considering charging such fees even though the General Assembly had stipulated in a budget proviso that the department couldn't do so without its approval.
But the governor had vetoed the budget proviso and his vetoes remain in effect unless overridden when the Legislature returns in January. At issue was whether, in light of the governor's veto, the Highway Patrol would be free to proceed with charging fees, at college football games in particular.
The opinion, signed by Atty. Gen. Henry McMaster, said such a fee would be an unconstitutional violation of the separation of powers unless specifically allowed by the General Assembly. In other words, the lawmakers' budget proviso and the governor's veto are irrelevant.
A state agency doesn't have the power to charge for its services unless the Legislature gives the green light.
Here's one of the opinion's most pertinent points: "Generally speaking, a governmental body may not receive remuneration from a citizen for the performance of a duty imposed upon it by law."
The opinion does note that there is legal authority for law enforcement agencies to contract with another agency for assistance in certain functions, but the opinion contends that language envisions a mutual agreement as opposed to a unilateral decision to impose a fee for services.
It's not that Sen. McConnell doesn't think the governor has a point about the need to find new sources of revenue in these difficult financial times.
"There is room for looking at what would be proper and what would not," he said. The senator said he asked for the opinion to "remove the possibility we would wind up in court" had the highway patrol started charging for services without legislative approval. Some years ago, he said, a halt had to be called to one regulatory agency charging unauthorized fees to applicants.
It may well be that some of the traffic control duties the patrol now performs are a service to state agencies or non-profits, but actually beyond the call of duty. But it should now be clear that's a matter for legislative debate.
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