Could a Beaufort County council member keep a merged district seat without an election?

Plain-English summary

Beaufort County asked whether a council member elected from District 10 could serve out his term representing the newly combined District 11 after the 2001 redistricting plan put him and another sitting council member in that district. In February 2002, the AG said §4-9-90 required an election when two council members became electors in the same reapportioned district. The other member’s announcement that he did not intend to seek reelection did not itself vacate his seat.

The opinion relied on the statute’s mandatory word “shall.” It did not decide a hypothetical vacancy that might arise later; its answer addressed the two incumbents and stated facts at the time of the request.

Currency note

This opinion was issued in 2002. 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.

Historical summary

Council members and county attorneys

The AG read the special election clause as controlling where two sitting members became electors in one redrawn district. A public statement about future candidacy did not remove the current election requirement.

Election officials

The opinion said the reapportionment statute mandated an election on the supplied facts, despite a separate provision allowing some members to serve unexpired terms in a new district.

Common questions

Could one incumbent simply represent the merged district? A: The AG said no on these facts; two incumbents in the same new district triggered the statute’s election requirement.

Did an incumbent’s plan not to run count as a vacancy?
A: No. The letter said announcing that intention did not itself vacate the seat.

Background and statutory framework

The letter quoted §4-9-90. It allowed an eligible member to finish an unexpired term after reapportionment but required an election if two or more members became electors in the same district. The AG applied the latter clause to the two Beaufort incumbents.

Citations and references

• §4-9-90: county council reapportionment and election rule quoted by the AG.

Official title

“concerning the application of S.C. Code §4-9-90 (1976, amended)…” to a situation created by the recent redistricting plan in Beaufort County. Specifically, does a councilman serve out his unexpired term representing the new District, District 11 when he was elected to represent District 10?

Requester

Kelly J. Golden, Esquire, Beaufort County Attorney’s Office

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-14-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02feb14golden.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
AITORNEY GENERAL

February 14, 2002

Kelly J. Golden, Esquire
Beaufort County Attorney's Office
Post Office Drawer 1228
Beaufort, South Carolina 29901-1228

Re:

Your Letter of January 11, 2002

Dear Ms. Golden:
In the above referenced letter, you have asked this Office for an "opinion concerning the application of S.C. Code §4-9-90 (1976, as amended) ... ." to a situation created by the recent redistricting plan in Beaufort County. By way of background, you indicate that: Beaufort County Council consists of eleven (11) members elected from single member districts. Robert E. Cuttino, Jr. represents District 10 and was elected to a 4 year term which expires December, 2004. Marvin H. Dukes, III represents District 11 and was elected to a 4 year term which expires December, 2002.

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Under the 2001 redistricting plan, District 10 ("Port Royal") and District 11 ("Beaufort City") were combined. Both Mr. Cuttino and Mr. Dukes are electors in the new district, (District 11). Mr. Duke's term of office expires in December of 2002 and he has announced his intention to run for the House of Representatives rather than run for re-election to County Council District 11. Given this background, you ask "does Mr. Cuttino serve out his unexpired term representing the new District, District 11 ?" As you point out in your letter, the relevant portion of S.C. Code Ann. §4-9-90 provides as follows: Any council member who is serving a four-year term in a district that has been reapportioned and whose term does not expire until two years after reapportionment becomes effective shall be allowed to continue to serve the balance of his unexpired term representing the people in the new reapportioned district if he is an elector in such reapportioned district. In the event that two or more council members, because REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE : 803-253-6283

Ms. Golden
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February 14, 2002

of reapportionment, become electors in the same district, an election shall then be required. Provided, however, that if any seat should become vacant after election districts have been reapportioned but prior to the expiration of the incumbent's term of office due to death, resignation, removal, or any other cause, the resulting vacancy shall be filled under the new reapportionment plan in the manner provided by law for the district that has the same district number as the district from which the council member whose office is vacant was elected.... (Emphasis added).

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Use of the word "shall" in a statute generally connotes mandatory compliance. S.C. Dept. of Highways and Pub. Transportation v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986). The facts provided clearly indicate that "two council members, because of reapportionment, [have] become electors in the same district." Therefore, Section 4-9-90 mandates that an election take place. The fact that Mr. Dukes "has announced his intention" not to seek re-election to County Council District 11 does not remove the requirement as his announcement in and of itself does not vacate his seat. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General and not officially published
· in the manner of a formal opinion.

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Assistant Attorney General

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