Who decided the term of an Allendale County council chair after the prior chair resigned?

Plain-English summary

In 2018, Allendale County's attorney asked how long a council chair would serve after the prior chair resigned midway through a two-year rotation. The Attorney General concluded that the county council could decide whether the successor completed the unexpired term or began a new term. The ordinance supplied to the office rotated the chair by district every two years but did not address an early vacancy.

The office based its answer on state law giving the council authority to set the chair's term under the county's form of government. It did not choose one term calculation itself. It also noted that it could not independently review an unpublished county code and relied on the ordinance provided with the request.

Currency note

This opinion was issued in 2018. 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 AG say the successor automatically got a fresh two-year term?
A: No. It concluded that council had power to decide between completing the former term and beginning a new one.

Q: Did the county ordinance answer an early vacancy?
A: The supplied ordinance set a two-year rotation but did not specify what happened if a chair left before the term ended.

Q: Did the AG verify the entire county code?
A: No. The office said the code was not published for its review and relied on the ordinance sent by the requester.

Background and statutory framework

The opinion described the general county governance statute as directing councils to choose their chair and set terms unless the adopted form of government provided otherwise. It said Allendale's council form did not settle the vacancy question, leaving the council's own ordinance and decision to control. The office quoted an earlier view that amendment by ordinance was preferable when a rule was adopted by ordinance.

Citations and references

• S.C. Code Ann. § 4-9-310: council form of government discussed in the opinion.
• Allendale County Code of Ordinances No. 14-002: two-year rotation provision quoted in the opinion.

Official title

On the term of a county council chairperson in Allendale County.

Requester

Mr. Walter H. Sanders, Jr., Esquire, attorney for Allendale County.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-13-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/12/01854729.pdf

Original opinion text

Alan Wilson
Attorney General

December 13, 2018

Walter H. Sanders, Jr., Esq.
PO Box 840

Fairfax, SC 29827
Dear Mr. Sanders:

You have requested an opinion from this Office regarding the term of a county council chairperson in Allendale County. In your letter, you state the following:

Allendale County has an ordinance rotating the Office of Chairperson of Council to numerically rotate every two(2) years from district to district (copy of ordinance enclosed). At the end of 2016 the chairperson, after serving one (1) year of his two(2) year term, resigned from Council. At that time the chairperson rotated to the next council person whose district was in numerical sequence. The ordinance does not specifically address the issue of what happens when a chairperson leaves office before his two (2) year term expires. The question is whether the current chairperson has a three (3) year term or a two (2) year term. Did he complete the unexpired term of one(1) year and then have two(2) years on a new term or did he rotate into a new two(2) year term only. In my opinion, there are three possible answers to the question. (1) The current chairperson has one (1) more year to serve as Chairperson as he completes the unexpired term of one (1) year and has served one(1) year of his new two(2) year term or; (2) The current chairperson's term ends December 31, 2018 as he has

served his two (2) year term and the office of chairperson automatically goes to the council person whose district is in numerical sequence or; (3) Given the Ordinance does not specifically address the question and I am not aware of any legal or parliamentary standard that applies to the question the Council would have to vote on how the ordinance is to be applied. The Ordinance would therefore need to be amended to specifically address the question in compliance with how the Council voted.

liiHNiBERT C.Dennis Building • Post Office Box 11549 - Coll^mbia,3029211-1549 . Telephone 803-734-3970 . Facsb^ile 803-253-6283

Walter H. Sanders, Jr., Esq.
Page 2
December 13, 2018

I have advised Council that in my opinion since there is no specific provision in its Ordinance to fill the unexpired term that the Office of Chairperson would automatically rotate to the Council Person whose district is in numerical sequence on January 1, 2019 as the current chairperson has served his two (2) year term. . . . LAW/ANALYSIS:

We will begin our analysis with a brief history of county governance. In a February 25, 1988 opinion, our Office determined that "it is settled law that counties and municipal corporations have only such powers as are granted to them by legislative enactment." Op. S.C. Attv. Gen.. 1988 WL 383501 (Feb. 25, 1988) (quoting Williams, et al. v. Wvlie. et aL 217 S.C. 247, 60 S.E.2d 586 (1950); 56 Am.Jur.2d, Municipal

Corporations,

etc.,

Section

193).

The

South

Carolina

Constitution

requires

the

Legislature to

equip counties with certain powers, duties, and functions and it provides: The General Assembly shall provide by general law for the structure,

organization, powers, duties, functions, and the responsibilities of counties. . .Alternate forms of government, not to exceed five, shall be established. . .no county shall be exempted from the general laws or laws applicable to the selected alternative form of government. S.C. Const, art. VIII, § 7.

In response to the State Constitution, the Legislature provided for "County Government" in the South Carolina Code of Laws.

S.C. Code Ann § 4-9-10 et seq. (1976 Code, as amended). Included in the general provisions was a statute regarding the selection and term of a county council chairman: The council shall select one of its members as chairman, except where the chairman is elected as a separate office, one as vice-chairman and such other officers as are deemed necessary for such terms as the council shall determine, unless otherwise provided for in the form of government adopted. . . .

S.C. Code Ann § 4-9-1 10 (1976 Code, as amended) (emphasis added).

Although the Allendale County Government website provides otherwise,1 you have informed us that Allendale County has adopted a council form of government, which is provided for in S.C. Code Ann. § 4-9-310 (1976 Code, as amended).

This form of government does not make provision for a county

council chairman, but instead states that "[t]he structure, organization, powers, duties, functions and responsibilities of county government under the council form shall be as prescribed" in the general provisions. Id.

Since the council form of government does not address the term of a chairman, our Office must rely on

the ordinance that you provided to us. We do not have the ability to independently research this matter,

See Allendale County Government website, located at https://allendalecountv.com/government.htm

Walter H. Sanders, Jr., Esq.
Page 3
December 13, 2018

since, to the best of our knowledge, Allendale County's Code of Ordinances are not published and therefore are not available for our review.

A review of the ordinance that you provided to us indicates that pursuant to section 4-9-1 10, Allendale County Council determined the term of its chairperson.

See Allendale County Code of Ordinances, No.

14-002 (April

"The Office of Chairperson of Council shall

11, 2014).

The ordinance provided:

numerically rotate every two (2) years from district to district. ..." Id.

As you stated in your letter, the

ordinance does not address what happens when a chairperson leaves office before his two year term

expires.

State law directs that county council "shall" determine the term of its chairman2 and the council form of government does not provide otherwise.

Based upon the information that you provided to us, we believe

that Allendale County Council has the authority to determine whether a chairperson completes the term of a prior chairperson who resigned or begins a new term.

In similar circumstances, we have opined that

"Council has the power to amend or abolish its own rule, by implication by the taking of some action

inconsistent with the rule, or otherwise. If the rule were adopted by ordinance, it would be preferable to amend the rule by ordinance, to avoid problems sometimes arising with amendment by implication." Op.

S.C. Attv. Gen.. 2017 WL 4707547 (October 9, 2017) (quoting Op. S.C. Attv. Gen.. 1985 WL 259134 (February 27, 1985)). That prior conclusion applies to these circumstances as well. Therefore, we advise

that the Council has the power to resolve the question presented in your letter as the Council deems appropriate.

CONCLUSION:
In order to answer your question, our Office must rely on the ordinance that you provided to us, since, to

the best of our knowledge, Allendale County's Code of Ordinances are not published. Accordingly, based upon South Carolina law and the ordinance that you provided to us, it is our opinion that Allendale County Council has the power to determine whether a chairperson completes the term of a prior chairperson who resigned or begins a new term as the Council deems appropriate. See Op. S.C. Attv. Gen., 20 1 7 WL 4707547 (October 9, 20 1 7) (quoting Op. S.C. Attv. Gen„ 1 985 WL 259 1 34 (February 27,

1985)).

Sincerely,

Elinor V. Lister

Assistant Attorney General

9

(

t

t

t

" Under general principles of statutory construction, the word 'shall' is interpreted as mandatory rather than

permissive.

Op. S.C. Attv. Gen.. 1 980 WL 1 206 1 5, at * 1 (Jan. 21,1 980) (citing 2A SUTHERLAND

STATUTORY CONSTRUCTION § 57.03 (1973)).

.

Walter H. Sanders, Jr., Esq.
Page 4

December 13, 201 8

REVIEWED AND APPROVED BY:

7
Ll
bert D. Cook
Solicitor General

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