Could one person serve as county veterans affairs officer for two South Carolina counties?

Plain-English summary

The Attorney General concluded that South Carolina's veterans-affairs-officer statute did not expressly prevent one person from holding the post for two counties, and that the constitutional dual-office prohibition did not itself bar the arrangement. The opinion then identified a separate obstacle: a court might treat county residency as an implied qualification for each officer position. A person serving Laurens and Greenwood Counties could not be a resident of both.

The opinion did not state that a court had finally resolved this precise arrangement. It warned that a court could find the officer unqualified for the county where the person did not reside.

Currency note

This opinion was issued in 2010. 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

Q: Did the appointment statute expressly forbid a shared veterans affairs officer? A: The opinion said no. It found no express prohibition in the statute governing county appointments.

Q: Was holding the two county posts itself prohibited as dual office holding? A: The Attorney General said the dual-office provision did not prevent one person from serving both counties.

Q: Why did the opinion still caution against the arrangement? A: It reasoned that a court could infer a county-residency qualification for each officer post. One person could not meet that qualification in two counties at once.

Background and statutory framework

A legislator asked about Laurens and Greenwood Counties appointing the same veterans affairs officer. The opinion considered the appointment statute, dual office holding, and the state constitutional provision on qualifications of public officers. Its unresolved point was whether that provision implied residency in each county served.

Citations and references

The original text below quotes S.C. Code Ann. § 25-11-40 and discusses Article XVII, Sections 1 and 1A of the South Carolina Constitution.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-2-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/pitts-m-a-os-9098-8-2-10-county-veterans-affairs-officer-for-multiple-counties.pdf

Original opinion text

HENRY MCMASTER
A TTORNEY G ENERAL

August 2, 2010

The Honorable Michael A. Pitts
Member, House of Representatives
372 Bucks Point Road
Laurens, South Carolina 29360
Dear Representative Pitts:
We understand you desire an opinion ofthis Office concerning ''whether South Carolina Law allows one individual to be appointed as the county veterans affairs officer for multiple counties." You state in your letter to our Office that
[t]o save the taxpayers' money, the Laurens and Greenwood
Counties' delegations have chosen to appoint the same individual to serve as the veterans affairs officer for both counties. By doing this, the Laurens/Greenwood veterans' affairs office has been able to employ staff members, and the veterans in the area have been better served. Unfortunately, it has come to my attention that there is some concern with having only one veterans affairs officer for both counties. As such, I am seeking an opinion from your office as to whether or not the South Carolina law allows for one person to serve as the county veterans affairs officer for multiple counties.

Law/Analysis
As you state in your letter, section 25-11-40(B) of the South Carolina Code (2007) provides for the appointment of county veterans affairs officers. This provision states: (B) Subject to the recommendation of a majority of the Senators representing the county and a majority of the House members representing the county, the Director of the Division of Veterans Affairs shall appoint a county veterans affairs officer for each county in the State, whose term of office shall begin July first of each odd-numbered year and shall continue for a term of two years and

REMBERT c. D ENNIS B UlLDLNG •

POST OFFICE B ox l L549

• C OLUMBIA, SC 29211-1549 • T ELEPHONE 803-734-3970 • FACSIMJLE 803-253-6283

The Honorable Michael A. Pitts
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August 2, 2010

until a successor shall be appointed. A county veterans affairs officer must be a qualified veteran who served on active duty for a period of more than one hundred eighty days and was discharged or released from such active duty with an honorable discharge or, if one hundred eighty days or less, was discharged or released from such active duty because of a service-connected disability; otherwise, a county veterans affairs officer may be a qualified nonveteran, if any veteran being considered for the post is not as qualified as a nonveteran being considered for the post. Qualifications shall be determined by the county legislative delegation upon a majority vote of the Senators representing the county and a majority of the House members representing the county. A county veterans affairs officer is subject to removal for cause at any time by a majority of the Senators representing the county and a majority of the House members representing the county. S.C. Code Ann. § 25-11-40. We must employ the rules of statutory interpretation to determine whether or not section 2511-40 allows for one individual to serve as the county veterans affairs officer for two counties. As our Supreme Court explained in SCANA Corp. v. South Carolina Department of Revenue, 384 S.C. 388, 392, 683 S.E.2d 468, 470 (2009): The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). "All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute." Broadhurst v. City of Myrtle Beach Election Comm'n, 342 S.C. 373, 380, 537 S.E.2d 543, 546 (2000). The Court should give words their plain and ordinary meaning, without resort to subtle or forced construction to limit or expand the statute's operation. Sloan v. S.C. Bd. of Physical Therapy Exam' rs, 370 S.C. 452, 469, 636 S.E.2d 598, 607 (2006). Section 25-11-40 is clear that veterans affairs officers must be appointed for each county in the State. Thus, we gather the Legislature's intent that each county should be served by a veteran's affairs officer. However, section 25-11-40 does not specifically prohibit the same person from serving two different counties. In addition, while serving as a veterans affairs officers could be considered an office for purposes of dual office holding, section 8-1-130 of the South Carolina Code (Supp. 2009) specifically exempts veterans affairs officers from the prohibition on dual office

The Honorable Michael A. Pitts
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August 2, 20IO

holding found in article XVII, section IA of the South Carolina Constitution (2009). Accordingly, we do not believe that section 25-11-40 or the constitutional prohibition on dual office holding prohibit one individual from serving as the veterans affairs officer for both Laurens and Greenwood Counties. However, an issue could arise due to this individual's lack of residency in both counties. Pursuant to section 25- I I-40, the only statutory qualification to serve as a veterans affairs officer concerns the individual's status as a veteran. This provision does not place a residency requirement on individuals serving as veterans affairs officers. Section 25- I I-40 states that qualifications for holding a position as a veterans affairs officer are to be determined by the county's legislative delegation. However, unless the legislative delegation for one of the counties places a residency requirement on candidates for this position, we would presume that veterans affairs officers are not required to be residents of the county they serve. Nonetheless, an argument can be made that a residency requirement is implied with respect to county veterans affairs officers pursuant article XVII, section I ofthe South Carolina Constitution (2009). This provision states: "No person shall be elected or appointed to any office in this State unless he possess the qualifications of an elector .... " S.C. Const. Art. XVII§ 1. Section 7-5-I20 of the South Carolina Code (Supp. 2009) provides the requirements of a qualified elector. Among these requirements is the requirement that the elector be "a resident in the county and in the polling precinct in which the elector offers to vote." S.C. Code Ann. § 7-5-I20. Our Supreme Court interpreted article XVII, section I to imply a residency requirement even when one is not specified by the Legislature. McLure v. McElroy, 2I I S.C. I06, I20, 44 S.E.2d IOI, I08 (1947), overruled on other grounds by Weaver v. Recreation Dist., 328 S.C. 83, 492 S.E.2d 79 (1997). In several opinions, this Office concluded that based on article XVII, section I and the Court's findings in McLure, an implied residency requirement existed for various appointed officers. In a I 985 opinion, we considered whether a residency requirement existed for a city housing authority commissioner. Op. S.C. Atty. Gen., August I, I985. We noted that the statute relating to the appointment of housing commission members was silent as to any residency requirement. Id. However, based on article XVII, section I of the Constitution, we concluded that because commissioners are city officers they must be qualified electors of the city. Id. We came to similar conclusions with regard to members of city planning commissions, notaries, and recreation commission members in other opinions issued by this Office. Ops. S. C. Atty. Gen., May 2 I, 2007; March 5, I993; July 7, I999.

Prior opinions of this Office have concluded that county veterans affairs officers are officers exercising sovereign power of the State for purposes of article XVII, section IA of the South Carolina Constitution (2009). Ops. S. C. Atty. Gen., May 9, I 989; December I 2, I 986. Accordingly, we believe a county veterans affairs officer would likely be an officer for purposes of article XVII, section I. Therefore, a court could find that county veterans affairs officers must be residents of the county they serve. Because the same person serving two different counties could not satisfy this

The Honorable Michael A. Pitts
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August 2, 2010
requirement, we must advise you that a court could find that one individual cannot serve as the veterans affairs officer for both Laurens and Greenwood Counties. Conclusion

The statute governing county veterans affairs officers does not appear to prohibit one individual from serving as a veterans affairs officer for two counties. Additionally, we do not believe that such service by one individual will run afoul of the prohibition on dual office holding found in the South Carolina Constitution. However, our Courts have interpreted article XVII, section 1 of the South Carolina Constitution as requiring all governmental officers, elected or appointed, to be residents of the area they serve. Because we believe county veterans affairs officers would be viewed as officers for purposes of article XVII, section 1, a court could find an implied residency requirement for this position. Accordingly, we must advise you that if one person were to serve as the county veterans affairs officer for both Laurens and Greenwood Counties, a court could find that this individual has failed to satisfy the qualifications ofhis or her office for the county in which he or she is not a resident. Very truly yours, Henry McMaster Attorney General

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By:

REVIEWED AND APPROVED BY:

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tflobert D. Cook
Deputy Attorney General

Cydney M. Milling
Assistant Attorney General

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