| Printed Page 630, Feb. 1 | Printed Page 650, Feb. 1 |

Amend the resolution, as and if amended, SECTION 1, subsection (B), page 1, beginning on line 40, by striking /chair of the South Carolina Wildlife and Marine Resources Commission/ and inserting /Director of the South Carolina Department of Natural Resources/, or their designees.

Amend further, SECTION 1, subsection (C), page 2, line 6, after /Commission,/ by inserting /the Department of Parks, Recreation and Tourism,/.

Amend title to conform.

Rep. SHARPE explained the amendment.

The amendment was then adopted.

Rep. WITHERSPOON explained the Joint Resolution.

The Joint Resolution, as amended, was read the second time and ordered to third reading.

The following Joint Resolution was taken up.

H. 3361 -- Ways and Means Committee: A JOINT RESOLUTION TO MAKE SUPPLEMENTAL APPROPRIATIONS FROM FISCAL YEAR 1993-94 SURPLUS REVENUES.

Rep. SHEHEEN: "If I have a Point of Order on Section 1, I should raise it now?"

SPEAKER WILKINS: "You can raise it as an amendment comes up... We are going to take up the amendments before we adopt the section."

Rep. SHEHEEN: "I understand, but I have got a problem, because my Point of Order deals with some of the things in Section 1 and if you sustain my Point of Order, then that makes a difference on what amendment we vote on. You know what the Point of Order is, I gave it to you last Thursday so you could be prepared. I'll raise it now if that is alright with you."

SPEAKER WILKINS: "Yes sir."

Rep. SHEHEEN: "Mr. Speaker, I would raise the Point on Section 1 that Items 2, 3, 4, 6 and 9 violate Section 11-11-140 of the South Carolina

SPEAKER WILKINS: "Subsections 2, 3, 4, 6 and 9?"

Rep. SHEHEEN: "Yes, Subsections 2, 3, 4, 6 and 9 and I will address each one of those separately for you. Section 2 appropriates the money for the Coordinating Council on Economic Development. If you look at the General Appropriations Act of 1994-95 which is Act No. 497, you will not find any appropriation in that Act for the Coordinating Council for Economic Development. Rather, if you will look at the gas tax law which was passed sometime ago, the first 18 million dollars of the additional three cents gas tax goes into a fund for the Coordinating Council for Economic Development and it is a recurring item under the general statutory laws for expenditures by the Coordinating Council on Economic Development and the Ways and Means Committee is substantiating information that it was offered to us and that that fund had fallen short this year and they needed additional monies for their normal operating expenditures out of that fund. On Item No. 3, the Technical Education Commission Special Schools, if you will look in the Act, No. 497, which is the General Appropriations Act for this year, on Page 178, you will find a normal operating expenditure for TEC, for special schools. There is a shortage apparently in those funds which are expended as normal operating funds each year and this is to supplement that normal operating fund and some 5 to 7 million dollars appropriated in the General Appropriations Act each year. On Item No. 4, it says it is for operating money, so I didn't bother to isolate that. On Item No. 6, if you will look on Page 266 of Act 497, dealing with Department of Corrections, you will, I am told in the substantiating information that is offered from the Department of Corrections that that is the training of new officers to be located and personnel to be located at Ridgeland institutions. If you look at Page 266 in the Department of Corrections, you will find an appropriation for the training of new officers and new FTE's as a normal operating portion of their budget. On Item No. 9, the Higher Education Formula, if you look at the Commission on Higher Education on page 96, you will see a normal operating appropriation for the Higher Education Fund for formula distribution in Act No. 497 and that is an increase on Page 96 in that fund, which is a normal operating procedure, the formula distribution through the Commission on Higher Education. Section 11-11-140 says that surplus monies can only be spent for non-recurring expenditures and by the substantiating documentation that has been offered to the Ways and Means Committee, for each one of these agencies, those items which I have identified to you, I interpret, as operating funds and

SPEAKER WILKINS: "Section 11-11-140 (d) requires the Appropriations and the Supplemental Appropriations to be for non-recurring expenditures and you also cite 11-11-410 as another basis for that restriction?"

Rep. SHEHEEN: "Yes sir, I do, but 11-11-410 is not nearly as specific as 11-11-140. 11-11-140 is pretty specific about recurring and non-recurring. 11- 11-410 says that when we have surplus monies, we can only spend them if the surplus monies that are generated by the preceding sections which is the spending limitation on state government, in a certain way, the surplus is generated. There is no way for me to know whether this Resolution violates that unless the Committee by some sort of certificate or the Budget and Control Board Division certifies that the spending limitation has not been reached and that these funds are not generated as a result of that spending limitation being reached and being over there. I can't make a judgement on that and the Point of 11-11-410 is that there has got to be some determination by somebody else before we can even take the Resolution up as to whether or not that section applies."

SPEAKER WILKINS: "Mr. Quinn, you wish to be heard on the Point of Order?"

Rep. QUINN: "Yes, Mr. Speaker, I think Mr. Sheheen has made a number of Points. The first one that I will go ahead and address is on the cap and there is a report that I sent up to your desk, which the Budget and Control Board puts together, that lists exactly what the capacity for the General Assembly to raise the revenue is in this particular year and we are well below that. I think it is well over a billion dollars, if we could raise it before we go over the cap. So, I think that pretty much addresses that Point of Order."

SPEAKER WILKINS: "So, you say that the documentation from the Budget and Control Board says that we have not exceeded the cap?"

Rep. QUINN: "Yes sir, they produce a capacity limit for us every year and that is in the book I just mentioned. Now, on the 11-11-140, he made a bunch of different Points regarding this Section and if I could, I would like to throw one thing out to you, and if you don't feel strongly about it, let me know, so I can give you my other arguments. I was supportive of

SPEAKER WILKINS: "Alright, anyone else wish to be heard?"

Rep. MARCHBANKS: "Mr. Speaker, if this Point of Order is sustained, would that rule invalid previous years actions when we have done essentially the same thing that we are doing now?"

SPEAKER WILKINS: "No sir and the Section that, one of the Sections that Mr. Sheheen cites, 11-11-140, was passed in 1993, so to my knowledge, this Point of Order has never been raised before on that basis. But, it would apply only to this Resolution obviously and would not be retroactive. Anyone else wish to be heard? Mr. Sheheen?"

Rep. SHEHEEN: "I would like to respond to Mr. Quinn's Point about 94-95. That deals with Subsection E in making recommendations on any budget which is formed and does not deal with Subsection D. Subsection D was effective June 15, 1993 when the Act was signed by the Governor and it says appropriations from surplus. It doesn't have a limiting clause on that surplus, it says appropriations from surplus may not be made before the first meeting of the General Assembly following the Comptroller General's closing the books on the fiscal year in which the surplus occurred and may be appropriated only for non- recurring purposes. There is no limitation in that Section at all."

Rep. QUINN: "Mr. Speaker, I am not a lawyer, but if you look at it, if you look at the Act itself, it says time effective, and it is directly under the section that he is listing and in fact, the time effective is in a whole separate section that would appear to me to address really everything, (C), (D) and (E) for that matter. I don't know how it could comply to (E) and not (D)."

SPEAKER WILKINS: "Mr. Sheheen, 11-11-410 first, I think that is the easiest one to deal with. The Constitutional spending cap legislation, Article X, Section 7, was the cap. Then we had statutes to implement that spending limitation back in 1984. So, the way I read Section 11-11-410 (F), that last sentence is the one you relied on for the purposes of this Section, surplus funds means portion of revenues as defined in Subsection A over and above revenue authorized for appropriations in Subsection B.

Rep. SHEHEEN: "Mr. Speaker, my only Point with 410 was that I didn't know, and couldn't know unless somebody from the Budget and Control Board provided that."

SPEAKER WILKINS: "Yes sir, alright now, now dealing with Section 11-11- 140. The information that I have asked Ways and Means to provide me indicates that the Resolution projects to appropriate $38,000,778. $22,374,000 came from surplus funds from the 93-94 budget year. The other $16,000,413 came from monies picked up when the vetoes on the supplemental appropriations were sustained and that dealt with monies appropriated in 93-94 year. You agree with that?"

Rep. SHEHEEN: "Yes sir, but when the vetoes were sustained, all of that money becomes surplus money because it is unappropriated. It is money collected over and above the actual appropriation that has been authorized. So, the total $38,787,000 is surplus money."

SPEAKER WILKINS: "Do you agree with me that the Act that contains Section 11-11-140, Act 162, provides this Act takes effect upon approval of the Governor and first applies with respect to appropriations for fiscal year 94- 95?"

Rep. SHEHEEN: "What you have to do is look at what is codified because that has been adopted as the Code of Laws of South Carolina and we have ratified that Act and the supplement has now been ratified as the official law. And if you look at Section 11-11-140, that provision about 94-95 budget year only deals with Subsection (E), there is no limitation on any others. The Code says that that Act was effective June 15, 1993."

SPEAKER WILKINS: "You agree with me that you can go back and look at the Act and see what the legislative intent was, don't you?"

Rep. SHEHEEN: "I don't think you have the right to determine legislative intent. That is a doctrine the Court uses when they determine it. I think you have got to take the plain language of the statute and apply it in here."

Rep. SHEHEEN: "If the Act is in conflict with the Code and we have adopted the supplement for the Code as the law, then I think you are bound by the Code."

Rep. HASKINS: "Mr. Speaker, I might be wrong, but I do recall adopting the Act, but I don't recall adopting the Code version of the Act and if Mr. Sheheen can point out when we adopted the Code version of the Act as being controlling, then I would agree with him, but we adopted the Act, and if it were codified incorrectly, then we should not be bound by the codification."

Rep. FELDER: "Mr. Speaker, if you read the supplement and Subsection (D) here, it clearly says that it is following the Comptroller General's closing of the books on the fiscal year, the fiscal year in which the surplus occurred and that would have been 93-94. (D) applies to 93-94 because in this case, this is the year 93-94, so therefore, it is itself an exemption from 94-95 provision. The fiscal year itself has got to be 93-94."

SPEAKER WILKINS: "You are relying on Subsection (D), which says it maybe appropriated for only non-recurring purposes. If I rule that the applicability of this statute is perspective and would not apply to the funds that we are now dealing with, then we do not need to get in discussion of whether or not it is a recurring versus non-recurring expense. If I agree with you that it is applicable, then we need to have a further discussion on what is recurring and what is non-recurring. Do you agree with that?"

Rep. SHEHEEN: "Yes sir."

SPEAKER WILKINS: "I have information from each of the agencies involved regarding their expenditures, but I think we first need to address this statute and applicability--whether it is going to apply to 93-94 funds --before we even talk about recurring or non-recurring. Do you agree?"

Rep. SHEHEEN: "Phrase that a little differently and I would say whether or not Subsection (D) applies to any surplus funds appropriated following the enactment and the effective date of this Act."

SPEAKER WILKINS: "Yes sir."

Rep. SHEHEEN: "If we have some from 92-93, and it was a Supplemental Appropriations Bill dealing with surplus funds from 92-93, I think Subsection (D) applies."

SPEAKER WILKINS: "But, we need to address this issue and if we address it and your Point is sustained, then we are..."

Rep. SHEHEEN: "Then you are going to have to make the determination..."

Rep. SHEHEEN: "Yes sir, I agree."

Rep. FELDER: "Mr. Speaker, I would just point out that it is not the effective date, it is the fiscal year. There is a difference. When we come back next year, Jan. 1, we get organized, and there is going to be a Carnell/Felder surplus set aside money and we can spend it in January, right now. This money has absolutely... We can't do it until we come back, get organized. That is for next year because of the fiscal year. This money came from a prior fiscal year. That is the only year."

Rep. QUINN: "I have got to tell you that I would agree with Mr. Sheheen if it weren't basicly for two words and that is, `first applies' and that is what gets this Point of Order in trouble. I think, we are talking again and this is all a process that we are laying out here for budgeting and it is supposed to first apply for that fiscal year and again he has already agreed that this money is from before the 94-95 fiscal year. The words `first apply' makes a hole in the argument he makes."

SPEAKER WILKINS: "I think you have to look at the Act as well as the statute and the Act clearly says that this legislation will first apply with respect to appropriations for the fiscal year 94-95 and I believe you have to read the entire Act together in Sections (A) and (B) and (C) of the Act. It restricted what we can put into the base budget. The Carnell/Felder proposal restricts appropriations and what we could do with surplus, but it also talks about in (D), appropriations of surplus may not be made before the first meeting of the General Assembly following the Comptroller General's closing of the books on the fiscal year in which the surplus occurred. I think we are talking about that next January. We are talking about 94-95 appropriations. I think the intent clearly was based on Section 2, that it first apply with respect to appropriations for fiscal year 94-95, so I think to a large extent it hinges on what money we are talking about. We attempted to get from the Ways and Means specifically what the monies were and I am satisfied those were monies from the 1993-94 budget year, not 1994-95. I think if this restriction was a separate statute and did not apply in this Carnell/Felder amendment, I think it could be more broadly construed, but I think the bottom line is that Subsection (D), Mr. Sheheen, applies only to the surplus that is created by Sections (A), (B), and (C) of that statute and those revenues clearly deal with the fiscal year 94-95. I think if we get beyond that, then we get into what is recurring and non- recurring and I certainly think your Point maybe be valid, but I think the restriction in Subsection (D), which limit the

Rep. SHEHEEN: "I understand your ruling, but there is one further question. I want to make sure I understand completely. If Carnell/Felder generates 53 million dollars, when we get back in January, by the formula in (A), (B) and (C), but we actually because of the collection to the end of this fiscal year have 75 million dollars, then do I understand your ruling to say that the appropriations from surplus only apply to non-recurring funds for the 53 and not the 75?"

SPEAKER WILKINS: "That issue is not before us today."

Rep. SHEHEEN: "No, but you have said in your ruling that it only applied to surplus monies generated by Carnell/Felder and I don't want that to be binding today, I want us to debate that in a future day."

SPEAKER WILKINS: "Yes sir, I think we should, but what I am saying today is the appropriations in this supplemental bill are not bound by the restriction in Subsection D of Act 162 and so your Point of Order is not sustained, it is overruled."

Reps. McELVEEN, KEYSERLING, CANTY, J. YOUNG, G. BROWN, NEAL, LLOYD, WHITE and HARVIN proposed the following Amendment No. 1 (Doc Name L:\council\legis\amend\JIC\5314HTC.95), which was tabled.

Amend the joint resolution, as and if amended, page 2, by striking SECTION 3 and inserting:

/SECTION 3. From funds appropriated for the Coordinating Council for Economic Development in Section 1 of this joint resolution, one million dollars must be set aside and made available to the Office of Local Government of the State Budget and Control Board for use in ensuring that military bases and any other national defense facilities in this State are not adversely impacted by the Defense Base Closure and Realignment Act of 1990 (P.L. 101-510). These funds may be expended pursuant to criteria developed by the board. Unexpended funds from this setaside revert to the use of the Coordinating Council for Economic Development.

SECTION 4. This joint resolution takes effect upon approval by the Governor./

Amend totals and title to conform.

Rep. McELVEEN explained the amendment.

Rep. QUINN spoke against the amendment.

Rep. H. BROWN moved to table the amendment.

Rep. McELVEEN demanded the yeas and nays, which were taken resulting as follows:

Those who voted in the affirmative are:

Allison          Bailey           Brown, H.
Cain             Carnell          Cato
Chamblee         Cooper           Cotty
Cromer           Dantzler         Davenport
Easterday        Fair             Felder
Fleming          Fulmer           Gamble
Hallman          Harrell          Harris, P.
Harrison         Haskins          Herdklotz
Keegan           Kelley           Klauber
Knotts           Koon             Law
Limbaugh         Limehouse        Littlejohn
Marchbanks       Mason            McAbee
McKay            Meacham          Quinn
Rice             Riser            Robinson
Sandifer         Seithel          Sharpe
Simrill          Smith, D.        Smith, R.
Stille           Townsend         Tripp
Trotter          Vaughn           Waldrop
Walker           Wells            Whatley
Wilkins          Witherspoon      Wofford
Wright           Young, A.

Those who voted in the negative are:

Anderson         Baxley           Breeland
Brown, G.        Brown, J.        Brown, T.
Byrd             Cave             Clyburn
Govan            Harvin           Harwell
Hines            Howard           Inabinett
Jennings         Kennedy          Keyserling
Kirsh            Lloyd            McCraw

McElveen         McMahand         McTeer
Moody-Lawrence   Neal             Neilson
Phillips         Richardson       Shissias
Spearman         Thomas           Tucker
Whipper, L.      Whipper, S.      Wilder
Wilkes           Williams         Worley
Young, J.

So, the amendment was tabled.

The SPEAKER granted Rep. MASON a leave of absence for the remainder of the day.

Rep. CROMER proposed the following Amendment No. 6 (Doc Name L:\council\legis\amend\JIC\5322HTC.95), which was tabled.

Amend the joint resolution, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. From fiscal year 1993-94 surplus revenues, there is appropriated from the general fund of the State the sum of $38,787,632, which must be allocated to counties based on the ratio that all tax year 1994 property tax revenues on owner-occupied residential property in the county bears to all such 1994 tax year revenues statewide. Upon receipt of a county's allocation, the county treasurer shall rebate to each owner-occupied residential property taxpayer who has paid in full the 1994 tax year taxes on the property a pro rata share of the amount paid. This percentage may be reduced by the treasurer by any amount necessary to insure that the rebate paid does not exceed the funds allocated to the county for the rebate. No rebate may be paid if the amount of the rebate otherwise due is less than one dollar. Funds allocated to the county in excess of the amount of the rebates paid must be allocated to the general funds of the taxing entities in the county in the ratio that the tax revenue of these entities from owner-occupied residential property is of all such revenue in the county. For purposes of paying these rebates in the case of a deceased taxpayer, the rebate is deemed a state individual income tax refund.

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