Could South Carolina’s governor remove the SLED chief or public safety director without cause?

Plain-English summary

A senator asked whether the State Law Enforcement Division and Department of Public Safety were independent agencies or cabinet posts. The Attorney General said in 2009 that their directors counted as cabinet officials for the Freedom of Information Act rule on cabinet meetings. But Section 1-3-240(C) limited the governor’s removal power: unlike generally removable appointees, these two directors could be removed only for listed causes, such as misconduct, incompetence, or persistent neglect of duty. The opinion described that limit as making the agencies more independent from gubernatorial control.

Currency note

This opinion was issued in 2009. 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: Could the governor dismiss the SLED chief at will?
A: The opinion said no. It placed the chief among the officers removable only for causes listed in Section 1-3-240(C).

Q: Did the same limit apply to the public safety director? A: Yes. The opinion identified that director in the same statutory subsection.

Q: Were SLED and DPS cabinet agencies?
A: The Attorney General said their directors were cabinet officials at least for the FOIA provision governing cabinet meetings.

Background and statutory framework

The opinion compared the governor’s general discretionary removal power for appointees with the cause-based exception for certain offices. It also reviewed the statutory cabinet definition used by the cited open-meetings provision. The answer distinguished cabinet status from the power to remove these directors without cause.

Citations and references

Statute: S.C. Code Ann. § 1-3-240; Section 1-3-240(C).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-23-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/knotts-j-m-jr-os-8723-1-23-09-status-of-SLED-SC-DPS.pdf

Original opinion text

H ENRY M CMASTER
ATTORNEY G ENERAL.

January 23, 2009

The Honorable John M. Knotts, Jr.
Senator, District No. 23
Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Knotts:
In a letter to this office you questioned whether the State Law Enforcement Division and the State Department of Public Safety are cabinet positions or function as stand-alone agencies. Your request letter raised also a more fundamental issue related to the removal authority of the Governor with regard to the directors of SLED and the Department of Public Safety. Your question appears to focus upon the issue of the independence of these agencies with regard to the removal authority of the Governor and is broader than the issue of whether these agencies are considered to be in the Governor's cabinet. Pursuant to S.C. Code Ann. § 23-3-10, (t)here is created the South Carolina Law Enforcement Division (SLED). The division must be headed by a chief appointed by the Governor with the advice and consent of the Senate and shall hold office until his successor is appointed and qualified. The term of the chief is six years... The chief may only be removed pursuant to the provisions of Section 1-3-240 of the 1976 Code. The agents and officers of the division must be commissioned by the Governor upon the recommendation of the chief. ... S.C. Code Ann. §§ 23-6-10 et seq. provide for the establishmentoftheDepartmentofPublic Safety. Section 23-6-40(A) states that
[t]he Governor, with the advice and consent of the Senate, shall appoint the director of the department who shall serve a term of four years. The director may only be removed pursuant to the provisions of Section 1-3-240(C)....

REMBERT

c. D ENNIS B UILDING • POST O FFICE Box 11549 • COLUMDIA, SC 292 1J-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable John M. Knotts, Jr.
Page2
January 23, 2009
S.C. Code Ann. § 1-3-240 provides generally for the removal of officers by the Governor. Pursuant to subsection (B)
[a]ny person appointed to a state office by a Governor, either with or without the advice and consent of the Senate, other than those officers enumerated in subsection (C), may be removed from office by the Governor at his discretion by an Executive Order removing the officer. As indicated by the State Supreme Court in Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000), pursuant to such provision, the Governor generally has the discretionary authority to remove a person appointed to state office by the Governor by executive order. No showing of "cause" is necessary for removal of the officers specified in Section 1-3-240(B). However, as to the two specific agencies referenced by you - SLED and DPS - an exception is made to the Governor's general removal authority. Subsection (C) of Section 1-3-240 provides that
[p] ersons appointed to the following offices of the State may be removed by the Governor for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity... (h) Director of the Department of Public Safety; ... (j) Chief of State Law Enforcement Division.... Subsection (C) is, therefore, a limitation of the Governor's removal authority and general control pursuant to subsection (B). As a result, the directors of SLED and the Department of Public Safety are not included in the Governor's discretionary removal powers generally and may be removed only for the specified reasons stated by the referenced provision. See: Rose v. Beasley, 327 S. C. 197, 489 S.E.2d 625 (1997) (affirming Governor Beasley's removal of Boykin Rose from the office of Director of Department of Public Safety under section 1-3-240(C)). Thus, it was the intent of the General Assembly that certain agencies and the directors thereof, among them SLED and DPS, were to remain more independent or stand-alone from gubernatorial control. As to your question regarding whether SLED and the Department of Public Safety are cabinet positions, the only provision with which we are familiar which specifically provides for the departments that constitute the Governor's cabinet is S.C. Code Ann. § 30-4-65. In providing for the applicability of this State's freedom of information act to the Governor's cabinet meetings, such provision states in subsection (B) that the term "cabinet" " ... means the directors of the departments of the executive branch of state government appointed by the Governor pursuant to the provisions of Section 1-30-lO(B)(l )(i) .... " Section 1-30-lO(B)(l )(i) specifically references " ... a director, and in the case of the Department of Commerce, the secretary, who must be appointed by the Governor with the advice and consent of the Senate, subject to removal from office by the Governor pursuant to the provisions of Section 1-3-240...." As referenced above, SLED and the Department of Public

The Honorable John M. Knotts, Jr.
Page3
January 23, 2009

Safety are included in Section 1-3-240 and, therefore, would be considered cabinet positions, at least for the purposes of the applicability of the -FOIA to a cabinet meeting. Consistent with the above, in the opinion of this office, the directors of SLED and the Department of Public Safety, while serving as directors of cabinet agencies, may only be removed by the Governor for the reasons specified in Section 1-3-240(C), i.e., malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity. Thus, as compared to other agencies in which the Governor may remove the directors thereof as he sees fit, SLED and DPS are considerably more independent or stand-alone and the directors of these agencies, in managing their agencies are subject only to removal for "cause."

If there are any questions, please advise.
Very truly yours,
Henry McMaster
Attorney General

c/deJI( fl-iJJ. . ____
By:

REVIEWED AND APPROVED BY:

Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General