Could Goose Creek recreation commissioners remain in office after new boundaries placed them outside the district?

Plain-English summary

In 1999, redrawn Goose Creek Recreation Commission boundaries left some members living outside the commission's area. A senator asked if they could serve until their terms ended. The Attorney General's office said residency was a continuing qualification. A member vacated the seat when no longer resident within the boundaries, and the vacancy was to be filled for the rest of the term under the original appointment process.

The opinion distinguished legal title to office from temporary de facto service. It said a nonresident member could exercise commission powers in a de facto capacity until a successor was appointed and qualified, and that interim acts would be valid. Once the successor qualified, the former member had no further commission authority. The letter was informal.

Currency note

This opinion was issued in 1999. 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 a nonresident commissioner finish the appointed term? A: The AG said no. The member vacated the position on ceasing to reside within the commission boundaries.

Would commission actions during the vacancy be invalid? A: The opinion said powers exercised by the former member as a de facto officer in the interim would be valid. Its footnote explained the de facto doctrine for acts affecting the public or third parties.

How was the replacement chosen?
A: Under the act quoted in the opinion, the vacancy was filled in the same manner as the original appointment, for the unexpired part of the term.

When did the former member stop acting at all?
A: The opinion said all authority ended when a replacement was appointed and qualified.

Background and statutory framework

Act No. 1093 created the commission, and Act No. 603 amended its appointment and vacancy provisions. The opinion relied on earlier AG opinions about continuing residency qualifications and the distinction between de jure and de facto officers.

Citations and references

Acts: Act No. 1093 of 1966; Act No. 603 of 1971.

Official title

Asking whether nonresident Commission members may continue to serve on the Commission until the end of their appointed terms or must the nonresident members be replaced by resident members before their terms end.

Requester

The Honorable William C. Mescher, Senator, District No. 44

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-10-1999-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99aug-10-mescher.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M O LO NY CONDO N
ATIO RNE Y GENERA L

August 10, 1999

The Honorable William C. Mescher
Senator, District No. 44
601 Gressette Building
Columbia, South Carolina 29202

RE:

Informal Opinion

Dear Senator Mescher:

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In an opinion dated July 7, 1999, this Office concluded that to properly serve on the Goose Creek Recreation Commission, an individual must reside within the boundaries of the Commission. You inform this Office that due to the recent redrawing of Commission boundaries, several members no longer reside within the Commission boundaries. You ask whether nonresident Commission members may continue to serve on the Commission until the end of their appointed terms or must the nonresident members be replaced by resident members before their terms end. The Goose Creek Recreation Commission was created by Act No. 1093 of 1966. The governing body is appointed pursuant to Act No. 603of1971 , which amends Section 2 of Act No. 1093 and provides in pertinent part as follows: The commission shall be composed of seven members, who shall be appointed by the Governor upon the recommendation of a majority of the Legislative Delegation of Berkeley County, who shall serve for terms of four years or until their successors are appointed and qualify, ... Any vacancy shall be filled in the manner of the original appointment for the unexpired portion of the term only. This Office has previously concluded that when an officer ceases to meet

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Senator Mescher
Page 2
August 10, 1999
requirements of a continuing nature, such as residence (i.e. being a qualified elector), the law itself operates to remove the office-holder from office. Op. Any. Gen. dated August 1, 1985 (citing Thomas v. Macl<len, 186 S.C. 290, 195 S.E. 539 (1938)(no right of non-resident to hold office)). When the office-holder ceases to reside in the appropriate locality, he vacates his position and becomes an officer de facto, rather than an officer de jure, until a successor is duly selected to complete the term of office. 1 Id.; Op. Any. Gen. dated June 11, 1993.
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Based on the above cited prior opinions, by operation of law, a member vacates his position at the time he ceases to reside within the Commission boundaries. Act No. 603 of 1971 provides that a vacancy is to be filled in the manner of the original appointment for the unexpired term of office. Thus, the member would not serve out the remainder of the term, but would serve in a de facto capacity until a replacement is appointed and qualified to serve the remainder of the unexpired term. At such time, the member would no longer have the authority to exercise the powers of the Commission, de facto or otherwise. In the interim, the powers exercise by the member in a de facto capacity would be valid. This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With best personal regards, I am Sincerely yours,

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Paul M. Koch
Assistant Attorney General

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A de jure officer is one who is in all respects legally appointed and qualified to exercise the office. Op. Atly. Gen. dated December 23, 1996. A de facto officer is one who is in possession of an office, in good faith, entered by right, claiming to be entitled thereto, and discharging its duties under color of authority. Id. Actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless and until a court should declare such acts void or remove the individual from office. Id.