Could an Aiken election commissioner chair a legislative campaign, and did the city have to remove that commissioner?

Plain-English summary

In a December 1999 opinion to Aiken's city attorney, a South Carolina assistant attorney general said a municipal election commissioner serving as a volunteer chair of a legislative candidate's campaign appeared to take part in political management or a campaign, contrary to Section 7-13-75. He did not make the final factual determination; the opinion left that to the city council.

The statute made a violator subject to removal by the appropriate appointing authority, which the opinion identified as the municipal governing body. The author read “subject to” as giving that body discretion, not requiring automatic removal. He saw removal, and perhaps powers implied by it, as the only sanctions authorized by the provision. Earlier opinions had treated the power to remove as including suspension, but he cautioned that the suspension conclusion was not free from doubt.

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

Q: Did volunteer service as a campaign chair count as political participation? A: On its face, the author thought it did. He said the city council had to review the particular facts before reaching a final decision.

Q: Was removal mandatory if the commissioner violated the statute? A: No. The opinion read the statutory phrase “subject to removal” as allowing the municipal governing body to decide whether the facts warranted removal.

Q: Could the city impose a different penalty?
A: The opinion said removal was the only sanction expressly listed. It discussed suspension as a possibly implied power but warned that conclusion remained uncertain.

Background and legal framework

The city attorney described a municipal election commissioner who volunteered as a candidate's campaign chair and asked about violation and sanctions. The opinion applied Section 7-13-75's ban on political management and campaigning during commission service, and S.C. Code Ann. § 5-15-90 to identify the appointing authority. It reserved fact finding to the city council. A separate letter of the same date addressed additional political-activity questions; this opinion addressed the campaign-chair incident and sanctions.

Citations and references

• Section 7-13-75: activity prohibition and removal language quoted in the opinion.
• S.C. Code Ann. § 5-15-90: appointment authority cited in the opinion.
• Rose v. Beasley: reason for caution about implied suspension powers cited in the opinion.

Official title

Regarding a City of Aiken municipal election commissioner serving as a volunteer campaign chairman for a candidate for the State House of Representatives.

Requester

Gary H. Smith, III, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-10-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99dec-10-garysmith.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. C O NDON
ATIORN E Y G EN ERA L

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December 10, 1999

Gary H. Smith, III, Esquire
Aiken City Attorney
Post Office Box 519
Aiken, South Carolina 29802
Dear Mr. Smith:
You have informed this Office that a City of Aiken municipal election commissioner served as a volunteer campaign chairman for a candidate for the State House of Representatives. The other candidate in the race brought this matter to the City's attention, alleged the commissioner' s conduct violated S.C. Code Ann.§ 7-13-75 and asked that action be taken by the city council on the matter. You have asked whether the municipal election commissioner violated S.C. Code Ann. § 7-13-75 by volunteering for the candidate' s campaign. If the answer is yes, you ask whether removal is the only appropriate sanction or if there are other appropriate sanctions. Section 7-13-75 of the Code provides as follows: No member of a county or municipal election commission, voter registration board, or combined election and voter registration commission may participate in political management or in a political campaign during the member' s term of office. No member may make a contribution to a candidate or knowingly attend a fundraiser held for the benefit of a candidate over whose election the member has jurisdiction. Violation of this section subjects the member to removal by the Governor or appropriate appointive authority. When interpreting a statute, a court must apply the clear and unambiguous terms of a statute according to their literal meaning. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 ( 1991 ). The words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. Bryant v. City of Col um bi~ 295 S.C. 408, 368 S.E.2d 899 ( 1988).

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Mr. Smith
Page 2
December 10, 1999

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The American Heritage Dictionary (3rd ed. 1993) defines "participate" as meaning to take part in something or to share in something. See also 31 Words and Phrases 227 (1957). Section 7-13-7 5 provides"[n Jo member of a county or municipal election commission, voter registration board, or combined election and voter registration commission may participate in political management or in a political campaign during the member's term of office." On its face, it would appear a member of a municipal election commission serving as a volunteer campaign chairman of a political campaign would be taking part in political management or in a political campaign during the member's term of office thus violating the statute. However, the particular facts of this case must be reviewed before reaching a final decision. As this Office is not authorized to make factual determinations in a legal opinion, we must defer to the city council's judgment in this matter.

Ifa member of a municipal election commission participates in political management or in a political campaign during the member's term of office, Section 7-13-75 authorizes the removal of the member. Specifically, "[v]iolation of this section subjects the member to removal by the Governor or appropriate appointive authority." Here, the appropriate appointive authority is the municipal governing body. S.C. Code Ann. § 5-15-90. Generally, when the word "subjects" is used in regards to a penalty, it is being used in a qualified sense of being liable or exposed to penalty, and not in the sense of being absolutely penalized. Blackshear Mfg. Co. v. Talmadge, 161S.E.256 (Ga. 1931); The Motorboat, 53 F .2d 23 9 ( 1931 ). Thus, the municipal governing body is not required to remove the member of the municipal election commission, but has the discretion to do so if the facts warrant removal. The only sanction specifically authorized by Section 7-13-7 5 is a member violating the statute is subject to removal. A cardinal rule of statutory construction is "expressio uni us est exclusio alterius" or "the enumeration of particular things excludes the idea of something else not mentioned." Pennsylvania National Mutual Casualty Insurance Company v. Parker, 282 S.C. 546, 320 S.E.2d 458 (1984). As the General Assembly has only enumerated potential removal as punishment for committing the prohibited acts, it would appear removal, and possibly those powers implied from removal, would be the only appropriate sanction. This Office has previously concluded the power to remove implies the power to suspend. Ops. A!!y. Gen. dated September 27, 1989 and March 30, 1983. This conclusion is based on general law found in 67 C.J.S. Officers 108(a) which provides:
[w]here the power ofremoval is limited to cause, the power to suspend, made use of as a disciplinary power pending charges, has been regarded as included within the

Mr. Smith
Page 3
December 10, 1999
power of removal, and it has been stated that the power to suspend is an incident to the power to remove for cause, and, according to some authorities, the power to remove necessarily includes the power to suspend.

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In general, if an officer is appointed for a set term, as is the case with municipal election commissioners, there must exist good cause to remove the officer. 1 State ex rel. Williamson v. Wannamaker, 213 S.C. l, 48 S.E.2d 601 (1948); Op. Any. Gen. dated December 10, 1997. The General Assembly has determined the prohibited conduct found in Section 7-13-7 5 is cause for removal. Thus, it may be argued that the municipal governing body has the power to suspend the municipal election commissioner pending resolution of the charges. However, in light of Rose v. Beasley, 327 S.C. 197, 489 S.E.2d 625 ( 1997), I would caution that this conclusion is not free from doubt. With best personal regards, I am Sincerely yours,

BAK.~
Paul M. Koch
Assistant Attorney General
REVIEWED AND APPROVED BY:

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~b C. Williams, III
,
Deputy Attorney General

1

The terms of members of a municipal election commission shall be six years except of those first appointed one shall serve a term of four years and one a term of two years. S.C. Code Ann.§ 5-15-90.