By Paul Gable
The Horry County Solid Waste Authority (HCSWA) will have another day in court as the U.S. Fourth Circuit Court of Appeals will hear arguments in an appeal by William Clyburn, former owner of Sandlands C&D LLC and Express Disposal.
The arguments are scheduled for October 31, 2013 in Richmond. Clyburn will be attempting to overturn the district court decision that upheld the county’s waste stream flow control ordinance that established a monopoly in garbage disposal for the HCSWA, seriously hurting Clyburn’s businesses.
For the hearing, the HCSWA will be claiming it is a non-profit corporation. As HCSWA Executive Director Danny Knight said in an I&R meeting two months ago, “in court we’re not the county.”
However, while the court process grinds on, the HCSWA is attempting to get the IRS to believe it is a ‘discreet component unit’ of Horry County. Or, as Knight said in the same meeting, “sometimes we’re somewhat the county.”
The HCSWA continues to get away with this amorphous existence where it claims to be whatever type of organization best suits it for the issue it is dealing with at the moment. It just so happens, it is dealing with a federal court and a federal agency at the same time, trying to claim it is two separate things.
Why? It all has to do with money.
I believe, although I’m no lawyer, that to argue in the same vein as the United Haulers v. Oneida-Herkimer lawsuit, in which the U.S. Supreme Court upheld two counties flow control ordinances in New York State, the HCSWA must separate itself from being a county agency.
With regard to the IRS, in order to not have to file a Form 990, as all non-profits must, the HCSWA must claim to be a unit agency of the county. The HCSWA doesn’t want to begin explaining some of its expenses ($865,000 to a lobbying firm, for one) and the $37 million in reserves it has in the bank to the IRS.
There seems to be a problem for the HCSWA and its non-profit claim. Federal law says that a non-profit that fails to file a Form 990 for three consecutive years loses its non-profit status. In its 20+ years of existence as a supposed non-profit, the HCSWA has never filed a Form 990.
It seems to me that with its two conflicting claims of status, the HCSWA is in for an interesting next couple of months as it tries to convince two different federal government agencies different facts about its status.
‘Oh what a tangled web we weave when first we practice to deceive.’