Could South Carolina officials remove a city council member for missing meetings?

Plain-English summary

In 2011, the South Carolina Attorney General found no authority to remove a Tega Cay city council member solely for absenteeism under the circumstances described. The request said the member had moved to Tennessee, attended three council meetings, and missed seventeen, while reportedly maintaining a residence in Tega Cay. The AG analyzed absenteeism as a ground for removal; it did not decide whether the member had lost a qualification for office.

The AG said removal power must come from the constitution or a statute. The constitutional neglect-of-duty provisions required legislation setting a removal method and were not self-executing. The AG found no municipal provision authorizing removal for absenteeism and read the Governor's absenteeism-removal statute as covering state and county officers, not a city council member. With no removal authority identified, it declined to answer which official could remove the member or whether U.S. Department of Justice approval would be needed.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Could the city remove this council member because he missed meetings? A: The AG found no provision allowing removal for absenteeism on the facts presented, despite the reported seventeen missed meetings.

Could the Governor remove him under the absenteeism statute? A: The AG said a city council member was a municipal officer, while the cited Governor-removal provision applied to state and county officers. It therefore did not believe a court would find gubernatorial authority to remove him for absenteeism under that provision.

Did the AG decide who would handle removal or whether federal approval was necessary? A: No. It explicitly left both questions unanswered after finding no authority for removal in these circumstances.

Did moving to Tennessee itself end the member's term?
A: The request said the member had moved there but reportedly kept a Tega Cay residence. The opinion did not determine whether he had lost a legal qualification for office; its conclusion addressed absenteeism.

Background and statutory framework

The opinion distinguished constitutional provisions calling for removal for neglect of duty, the municipal forfeiture grounds in § 5-7-200, and § 1-3-240's Governor-removal power for state or county officers. It relied on earlier AG opinions to say a council member is a municipal officer. Its conclusion was limited to the absence of a removal provision for absenteeism.

Citations and references

The opinion discusses S.C. Code Ann. § 5-7-200(a), S.C. Code Ann. § 1-3-240(A)(2005), and the state constitution's removal provisions.

Official title

Concerning the removal of a city council member.

Requester

Grant W. Duffield, City Manager, City of Tega Cay

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-13-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/duffield-g-w-os-9187-4-13-11-removal-city-council-member.pdf

Original opinion text

ALANWJLSON
A lTORNEY GENERAL

April 13, 2011

Grant W. Duffield, City Manager
City of Tega Cay
120 Shoreline Parkway
Tega Cay, South Carolina 29708
Dear Mr. Duffield:
We understand that you desire an opinion of this Office addressing the following three questions: Question #1: Under the fact pattern set forth below, may a city council member be removed for absenteeism, and/or neglect of duty, from his office as a city council member? Question #2: If a city council member can be removed under the below described circumstances, which is the proper authority to carry out such removal, and what removal procedures would be utilized? Question #3: Will the US Department of Justice's approval be required prior to such removal?

In addition, you included the following statement of facts:

1. Council member ("CM") duly elected on 11-16-07.
2. CM took oath of office, and began serving on 1-14-08.
3. Office of the CM is up for election on 11-08-11 ; newly elected
   member to begin serving on 1-16-12.

REMBERr c. DBNNis Bun.oJNG • POST OPPICB Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMlLE 803-253-6283

Mr. Duffield

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April 13, 2011

4. CM accepted a position in Tennessee and began living there in
   May, or June, 2010. On information and belief, the CM has
   continued at all times to maintain a residence in the City of Tega Cay.
5. Since moving to Tennessee, CM has missed a total of
   seventeen City council meetings.
6. Since moving to Tennessee, CM has attended three City
   council meetings.

Law/Analysis

In a 2005, this Office discussed the general power to remove a public official from office. Op. S.C. Atty. Gen., June 27, 2005. We stated:

As our Supreme Court long ago stated, "'[t]he power of removal from office . . . is not an incident of the executive office, and it exists only where it is conferred by the Constitution or by the statute law, or is implied from the conferring of the power of appointment." State ex rel. Lyon v. Rhame 881, 882 (1912). If an officer holds office for a fixed term, summary removal is not authorized. State v. Wannamaker, 213 S.C. 1, 48 S.E.2d 601 (1948). The right to hold an office during a fixed term unless removed for cause may be overcome only by an unequivocal grant of power from the Legislature to remove at pleasure. Id. Moreover, the Governor possesses no inherent power to remove or suspend from office. The Chief Executive may not remove or suspend a public officer unless the power to do so is conferred by the Constitution or statute. Rose v. Beasley, 327 S.C. 197, 489 S.E.2d 625 (1997). The power to suspend from office stands separate and apart from the power to remove, and must itself be found in statutory or constitutional authority. Id.

Mr. Duffield
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April 13, 2011

Article VI, section 9 of the South Carolina Constitution (2009) states: "Officers shall be removed for incapacity, misconduct, or neglect of duty, in such manner as may be provided by law when no mode of trial or removal is provided in this Constitution." Article III, section 27 of the South Carolina Constitution (2009) contains the exact language as article VI, section 9. In prior opinions, this Office concluded these constitutional provisions are not "self-executing." Ops. S.C. Atty. Gen., July 21, 2003; August 1, 2000. Thus, we stated "in order for a public officer . .. to be removed from office pursuant to the authority of these constitutional provisions, the legislature would have to enact a law providing for the '. . . mode of trial or removal . . . . "' Op. S.C. Atty. Gen., July 21, 2003. Initially, we reviewed the provisions contained in chapter 7 of title 5 pertaining to municipal officers. We noted that section 5-7-200 of the South Carolina Code (2004) states the grounds for forfeiture of office of a mayor or a councilman. That provision states: "A mayor or councilman shall forfeit his office if he (1) lacks at any time during his term of office any qualification for the office prescribed by the general law and the Constitution; (2) violates any express prohibition of Chapters 1 to 17; or (3) is convicted of a crime involving moral turpitude." S.C. Code Ann.§ 5-7-200(a). This provision does include language calling for the forfeiture of a councilman's office based on absenteeism. Furthermore, we did not find any other provisions in chapter 7 of title 5 addressing absenteeism. We also examined section 1-3-240 of the South Carolina Code (2005 & Supp. 2010), allowing the Governor to remove certain public officials from office. This provision generally allows the Governor remove "[a]ny officer of the county or State . . . who is guilty of malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity .. . ." S.C. Code Ann. § 1-3-240(A)(2005). In a 1992 opinion, this Office considered whether the Governor could remove a mayor pursuant to section 1-3-240(A). Op. S.C. Atty. Gen., August 17, 1992. We determined "a mayor is not considered a county or state officer but is instead a municipal officer." In keeping with this opinion, we believe that a councilman is also a municipal officer. Therefore, we do not believe a court would fmd that the Governor has the authority to remove a council member for absenteeism. Conclusion As we explained above, our courts only recogniz.e the power the remove a public official from office when such authority is specifically given by the South Carolina Constitution or by statute pursuant to article VI, section 9. In our review of both the Constitution and the statutory provisions pertaining specifically to municipal officers and those pertaining generally to public officers, we did not find a provision allowing for the removal of a city councilmember due to absenteeism. Based on this conclusion, we cannot answer your other two inquires of who has the

Mr. Duffield
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April 13, 2011

authority to remove the council member under these circumstances and whether or not the U.S. Department of Justice must be involved. Very truly yours,

cC:X~m:'1·

Assistant Attorney General
REVIEWED AND APPROVED BY:

~»·~

Robert D. Cook
Deputy Attorney General