Could the Georgetown County election board amend its bylaws and elect officers without permission from the legislative delegation?

Plain-English summary

Representative Miller asked whether the Georgetown County Board of Elections and Registrations' existing bylaws remained valid and whether the board could change them and elect officers. The Attorney General said the bylaws remained in effect until amended or replaced. It found an implied power for the board to conduct its own business, including adopting bylaws and choosing officers, except that the governing act assigned the chairman's selection to the legislative delegation.

The AG also said the delegation had no authority to give the board those powers because the board already held them by implication and no statute authorized the delegation to grant them.

Currency note

This opinion was issued in 2006. 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 existing bylaws expire when the board was reappointed?
The AG saw no provision causing expiration and said they remained valid until changed or replaced.

Could the board elect its chairman?
No. The opinion said the legislative delegation selected that office under Act No. 591.

Could the delegation authorize new bylaws or officer elections?
The AG found no authority for the delegation to grant that power; it treated the board's authority as implied from its own duties.

Background and statutory framework

Act No. 200 of 2005 referred appointments to the framework of Act No. 591 of 1994. The latter assigned the chairman's selection to the legislative delegation. The opinion relied on a prior AG analysis of implied board powers and discussed Bramlette v. Stringer when addressing limits on delegations' powers.

Citations and references

• Act No. 200 of 2005 and Act No. 591 of 1994: board appointment and chairman provisions.
• Bramlette v. Stringer, 186 S.C. 134, 195 S.E. 257 (1938): limits on county legislative delegations.

Official title

Questioning whether the Georgetown County Board’s (“the Board”) current bylaws remain valid, according to Act No. 200 and 591, and whether the Board is authorized to change or adopt new bylaws.

Requester

The Honorable Vida O. Miller, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-6-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/feb6-06-Miller.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY GENERAL

February 6, 2006

The Honorable Vida 0. Miller
Member House of Representatives
P.O. Box 3157
Pawleys Island, SC 29585
Dear Representative Miller:
In a letter to this Office, you referenced the Georgetown County Legislative Delegation recently reappointed the Georgetown County Board of Elections and Registrations ("the Board''). We presume this appointment was pursuant to Act No. 200 of2005, which indicates appointments are to be made as provided in Act No. 591 of 1994. Act No. 591 provides the Governor, upon the recommendation of the Georgetown County Legislative Delegation, appoints the members of the Board. Further, you indicated the Board hired a new director who will begin her duties this month.

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You stated the Board adopted its current bylaws in 200 I in accordance with a county ordinance requiring boards and commissions to adopt such. You further stated issues have arisen regarding the revision of these bylaws and the election of officers in light of the failure of either Act No. 200 or Act No. 591 to specifically address those issues. As you noted, the only provision specifically referencing the matter of officers is the provision in Act No. 591, which states the the legislative delegation chooses chairman ofthe Board. In light ofsuch, you asked whether the current bylaws remain valid and whether the Board is authorized to change or adopt new bylaws. You also questioned whether the Board is authorized to elect new officers, other than that of chairman. As to the bylaws, in our opinion,, inasmuch as there are no apparent provisions indicating otherwise, the current bylaws would remain vaJid until changed or the adoption of new bylaws. As to your questions of whether the Board is authorized to change or adopt new bylaws and elect new officers, as you have stated, apparently there are no specific provisions referencing the changing of such bylaws or electing officers, other than cha irman. However, generally, a board or commission has implied authority to conduct business, which would include the adoption of bylaws and the election ofofficers, as such matters are reasonably necessary for the work of a board or commission. As stated in a prior opi nion of this Office dated August I , 1961, "[i]n addition to the express powers which ... (a) ... board or commission might have, these governmental bodies Jiave such implied

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The Honorable Vida 0. Miller
Page 2
February 6, 2006
powers as are necessarily inferred or reasonably necessary to make effective the express powers granted to them." See also 8 lA C.J.S. States,§§ 224 and 249 (stating boards and commissions have such powers as have been delegated to them by express constitutional and statutory provisions, or as may properly be implied from the nature of the particular duties imposed upon them). Consistent with such, the Board has implied authority to change or adopt new bylaws and to elect officers except for the office of chairman, which is chosen by the legislative delegation.

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As to your question of whether the delegation may give the Board specific authority to elect officers and adopt new bylaws, in our opinion, no authority exists for such on the part of the delegation. As stated in a prior opinion of this Office dated July 11, 1983, A county legislative delegation then, has no inherent powers, and cannot exercise sovereign power absent a delegation of authority to it by the General Assembly. See State v. Watkins, 259 S.C. 185, 191 S.E.2d 135 (1972). Put simply, '[D]elegations are bodies and agencies to carry into effect the fully enacted law.' State v. Lewis, 181 S.C. 101, 186 S.E. 625, 635 (1936). In the 1983 opinion, we noted our research failed to reveal any authority empowering the Horry County Legislative Delegation to create a Blue Ribbon Committee. Thus, this Office determined the Horry County Legislative Delegation's actions in creating such a committee void. Additionally, the 1983opinion noted the delegation of power in under certain circumstance created a risk of violating the South Carolina Constitution due to an unconstitutional delegation of powers. As referenced in that opinion, in Bramlette v. Stringer, 186 S.C. 134, 195 S.E. 257 (1938), the Supreme Court enjoined certain actions of the Greenville County Legislative Delegation explaining the only permissible exercise oflegislative functions by a county delegation is "the performance of
... duties ... in efficient enforcement and execution of a complete law." 1 Based on the rationale in the 1983 opinion, because there is no legislative authority empowering the Georgetown County Legislative Delegation to grant the Board authority to elect officers and adopt new bylaws, any attempt to do so by that legislative delegation would be void. Moreover, as explained in the 1983 opinion, the attempt to do such may raise constitutional issues.

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Of course, certain delegations of power to county delegations have traditionally been held to be constitutional. For example, election and appointment to office has been held to be a valid delegation of power to county delegations. See State v. Bowden, 92 S.C. 393, 396, 74 S.E. 866, 870 (1912).

The Honorable Vida 0. Miller
Page 3
February 6, 2006
While, in our opinion, the Board has implied authority for to elect officers and adopt new bylaws, we find the better practice would be for enactment of specific statutory authority granting the Board such authority. Very truly yours,

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Cydney M. Milling
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General