Were undocumented proxy votes automatically invalid in a Sumter delegation board appointment?

Plain-English summary

The Governor's legal counsel asked about two proxy votes announced after a public meeting of the Sumter legislative delegation on a technical-college board appointment. Five members had voted in person; after that vote, a senator claimed proxies for the two absent members, without written documents. The Attorney General did not declare those proxies valid or invalid. He said the delegation itself had to resolve whether proxy voting was authorized and valid for its appointment business.

The letter relied on an earlier opinion saying that no statute established county delegations or prescribed their internal procedures. That earlier opinion treated appointments as a setting where proxy voting might be possible, while calling an in-person vote the better practice and leaving policy to each delegation. The request did not state whether Sumter's delegation had adopted a proxy rule before its meeting, so the AG did not apply any such rule to the vote.

Currency note

This opinion was issued in 2005. 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

Did the AG invalidate the two unwritten votes?
No. He left their authority and validity to the particular delegation and did not report a governing policy for this vote.

Did the earlier opinion demand a written proxy for every appointment?
No. It described a written-proxy policy used by a different delegation, then left each delegation's appointment policy to that body.

Did the AG say an in-person vote was preferable?
Yes. The earlier opinion quoted in this letter called voting in person the better practice.

Background and statutory framework

The inquiry concerned appointment to the Central Carolina Technical College Board, not a general legislative floor vote. The AG relied on an earlier discussion of delegation procedure and the absence of a statute prescribing proxy voting for such appointments.

Citations and references

The letter quoted a November 20, 1991 AG opinion on county delegation proxy voting.

Official title

As to whether or not the Sumter Legislative Delegation was allowed to use two undocumented proxy votes in a public hearing to replace Mr. Rudy Newman on the Central Carolina Technical College Board.

Requester

Swati S. Patel, Chief Legal Counsel, Office of the Governor

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-5-2005-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05august-5-Patel.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsnR
ATTORNEY GENERAL

August 5, 2005

Swati S. Patel, Chief Legal Counsel
Office of the Governor
State of South Carolina
Post Office Box 12267
Columbia, South Carolina 2921 I
Dear Ms. Patel:

In a letter to this office you indicated that the Office of the Governor has been asked by

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certain members of the Sumter Legislative Delegation to replace Mr. Rudy Newman on the Central Carolina Technical Co11ege Board. You further indicated, however, that when the delegation voted to remove Mr. Newman from this board at a public hearing, only five of the seven delegation members were present and voting. Of the five members present, three members voted for Mr. Newman and two members voted against Mr. Newman. After the voting, a senator who had voted against Mr. Newman stated that he had the proxies for the other two non-present delegation members. The proxies were not in writing. You stated that your office is concerned about making a new appointment to this board due to the questionable validity of the proxy voting which resulted in a vote against Mr. Newman. As a result, you have raised the specific question as to whether or not the delegation was allowed to use two undocumented proxy votes in a public hearing which resulted in a vote against Mr. Newman's reappointment to the Central Carolina Technical College Board. You did not indicate whether there was any specific policy regarding proxy voting that had been adopted by the particular delegation referenced in your letter prior to the vote having taken place. Enclosed is a copy of a prior opinion of this office dated November20, 1991 which 1believe is responsive to your inquiry. That opinion dealt with the question of the legality of county delegation members voting by written proxy on issues when the members were unable to attend legislative meetings. In the situation prompting the opinion request, apparently there was a policy adopted by the legislative delegation which did allow members to vote by proxy. That policy required that any proxy be in writing, signed by the delegation member and registered with the delegation secretary. The opinion stated that this office has generally concluded that in the absence of specific statutory authorization as to a particular board or office, proxy voting is not authorized. The referenced opinion further noted that there is no statute which creates a county legislative delegation

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• PosrOFF1CE Bo x 11549 • COLUMBIA, S.C. 29211 -1549 • Taa>HONE: 803·734·3970 • fAcsll>m.E: 803-253-6283

Ms. Patel
Page2
August 5, 2005

as an entity or which provides for the operations or procedures of a delegation. While the opinion
also states that this office is unaware of any rules or procedures adopted by the General Assembly
which would govern the conduct of delegation business, it was commented that it is doubtful as to
whether legislative rules would be controlling as to a delegation meeting.
In reviewing the question, the opinion set forth several matters to be considered in
determining the propriety of a proxy vote and concluded as follows:

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No statute establishes the delegation as an entity or prescribes its manner of
operation. Thus, no statute expressly addresses the practice of proxy voting by the
resident House member or Senator who might not be present at a meeting at which
an appointment affecting that area of residence might be made ... Appointments to
boards or commissions are not exclusively legislative or executive in nature,
however, and could possibly be carried out by proxy vote of the resident House
member or Senator in the absence of a controlling statute... (While) ... (t)he better
practice would be to cast such votes in person, ... (b)ecause this practice as to
appointments is exclusively within the control of the delegation, ... we must leave the
determination of such policy decisions to the delegation.
Consistent with such, it appears that it would be a matter for resolution by the particular delegation
referenced in your letter as to the authority or validity of an proxy vote as to matters considered by
that delegation.

L.

If there are any questions, please advise.

c?~<;tl

Charles H. Richardson
Senior Assistant Attorney General

Enclosure
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General