What happened to a Beaufort County council seat when its member moved out of the district?

Plain-English summary

In a 1996 informal opinion, a deputy attorney general addressed a Beaufort County council member's planned move from the district he represented into another district with a vacant seat. He said public officers generally vacated their elected district offices when they ceased to reside there. Because residency depended partly on intent and facts, he recommended a written resignation with a definite effective date no later than the move. That date could guide scheduling a special election for the old seat.

The letter also said the member could continue to act as a de facto representative after losing lawful title to the first seat, until a successor was elected or he was elected to the second district's seat, whichever came first. Under the de facto officer doctrine as the author applied it, he could participate and vote to the same extent as other council members during that period. The opinion distinguished de facto performance of duties from continued de jure entitlement to the seat.

Currency note

This opinion was issued in 1996. 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: When did the member lose the first district's seat?
A: The author said it was when he ceased to reside in the district. He added that determining residency involved facts and intent, so a dated written resignation would give the vacancy a definite date.

Q: Could the member vote after moving out?
A: The letter said he could participate as a de facto officer until a successor was chosen or he won the other district's seat, whichever happened first.

Q: Was de facto service the same as remaining the lawful officeholder?
A: No. The opinion contrasted de facto service under color of authority with de jure legal entitlement, using the doctrine to preserve continuity of council actions.

Q: Did the letter decide whether the member had actually changed residency?
A: No. The move was prospective, and the author said residency was a mixed question of fact and law.

Background and legal framework

The council chairman planned to move from District 1 to District 2 and run in a special election for the latter's vacancy. The author discussed S.C. Code Ann. § 7-13-190 for vacancy elections, earlier AG opinions on leaving an elected district, and cases on de facto public officers. He applied those authorities to three distinct questions: the vacancy date, temporary continued service, and participation while acting de facto.

This was an informal opinion signed by a deputy attorney general, not a formal opinion personally reviewed by the Attorney General.

Citations and references

• Statute discussed: S.C. Code Ann. § 7-13-190 (special election for a vacancy).

Official title

Regarding your upcoming change of residency from Beaufort County Council District 1, which you currently represent, to District 2.

Requester

The Honorable Thomas C. Taylor, Chairman, Beaufort County Council

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-23-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96dec23taylor.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M OLONY CONDON

ATTORNEY GENERAL

December 23, 1996

The Honorable Thomas C. Taylor
Chairman, Beaufort County Council
Post Office Drawer 1228
Beaufort, South Carolina 29901-1228
Re: Informal Opinion
Dear Mr. Taylor:
By your letter of December 4, 1996, you have sought the opinion of this Office as to several questions regarding your upcoming change of residency from Beaufort County Council District 1, which you currently represent, to District 2. I understand from your letter that the second district's council member, Victoria Mullen, recently resigned her seat after having been elected to the South Carolina House of Representatives, and that it is your intention to file for the special election to be held on April 1, 1997 to fill that vacancy. First of all, you have inquired whether the date of residency relocation serves as the vacation date for establishing the schedule for the special election which will be held pursuant to S.C. Code Ann. § 7-13-190 to fill the unexpired portion of your present term of office. The previous and frequently reiterated position of this Office with respect to public officials who move from the districts from which they were elected is that "public officers vacate or forfeit their offices at the time they cease to be a .resident of the affected district or political subdivision." (Emphasis added.) Op.Atty.Gen. 93-68 (October 18, 1993). Accordingly, it is my opinion that the date you cease to be a resident of Beaufort County Council District I could serve as the operative vacation date for the purpose of scheduling the special election. Nevertheless,_because residency is a mixed question of fact and law, turning on one's subjective intent, I would advise that you tender, and have accepted, a written resignation that includes a definite effective date not later than the date you assume residency in District 2.
~~D~~

PoST OFflCE Box 11549

•

COLl!MBIA. S.C. 292 11·1549

•

TELEPHONE: 803-734-3970

•

f.>.CSIMILE: 803-253-6283

Mr. Taylor
Page 2
December 23, 1996

Additionally, you have inquired whether you may continue serving your constituents in District 1 in a de facto capacity until a new representative is properly elected in District 1 or until such time as you are elected to the District 2 seat. This Office has opined on numerous occasions that -an individual may continue performing the duties of a previously held office as a de facto officer, 1 ·rather than de jure, until a successor is duly selected to complete his term of office. See, Walker v. Harris, 170 S.E. 242 (1933); Dove v. KirklanQ, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Butz, 9 S.C. 156 (1877). Furthermore, 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. See, for examples, State ex rel McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848). Based on the foregoing, it is my opinion that upon vacating your District I council seat, you may continue serving in a de facto capacity until your successor is duly elected or untiI you are properly elected to .the District 2 seat, whichever comes first. Finally, you have inquired what restrictions or limitations exist, if any, regarding your standing or voting privileges or council should you continue to serve in a de facto capacity. As stated in Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952), "[t]he purpose of the doctrine of de facto officers is the continuity of governmental services and the protection of the public in dealing with such officers . .. . As nature abhors a void, the law of government does not ordinarily countenance an interregnum .. . ." (Emphasis added.) Consistent with this rationale, this Office concluded that those members of the Allendale Town Council who met the cited "definitions of de facto officers should be allowed to exercise all authority vested in their offices .... " Op.Atty.Gen. (July 28, 1980). See also, Op.Atty.Gen. (July 28, 1962) as to de facto members of the Georgetown County Board of Education being able to perform their duties as fully as if they were de jure officers. In accordance with these earlier decisions, therefore, it is my opinion that as a de facto officer you may participate as fully and to the same extent as the de jure council members.

1

A de jure officer is "one who is in all respects legally appointed and qualified to exercise the office." 63 Am.Jur.2d Public Officers and Employees Sec. 495. 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." Heyward v. Long, 178 S.c.351, 183 S.E. 145, 151 (1936); see also Smith v. City Council of Charleston, 198 S.E. 313, 17 S.E.2d 860 (1942) and Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952).

Mr. Taylor
Page 3
December 23, 1996
This letter is an informal opinion only. It.has been written by a designated Deputy 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 kind regards, I am

Very truly yours,

;:~.~:::.~
Deputy Attorney General

ZCW,III/ph