What grounds and procedure could Georgetown County use to remove a planning commissioner?

Plain-English summary

In 1999, Georgetown County's attorney asked how county council could remove a member of its planning commission. The Attorney General's office said the governing act allowed removal “for cause” but did not define cause or prescribe a procedure. It read cause as a substantial shortcoming related to the member's fitness, duties, or the public interest, rather than any reason council chose.

The letter identified examples drawn from other South Carolina provisions and authorities, including persistent neglect, misconduct, conflicts of interest, and absenteeism. It left the precise removal procedure to county council and its attorney, but stressed the South Carolina rule that removal for cause required notice and an opportunity to be heard. The letter was informal and did not decide whether any particular commissioner had given cause.

Currency note

This opinion was issued in 1999. 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

Could county council remove a planning commissioner for any reason? A: The AG said no. The act's “for cause” condition limited removal to a substantial reason affecting qualifications, duties, or the public interest.

Could repeated missed meetings qualify?
A: The opinion listed persistent absences among conduct that other authorities had treated as potential cause. It did not decide whether any particular absence record sufficed.

Was the commissioner entitled to a hearing?
A: The opinion said South Carolina's rule for removal for cause required notice and an opportunity to be heard.

Did the state act set every procedural step?
A: No. The office said the act did not specify a removal procedure and left details to county council and its attorney, subject to the notice-and-hearing rule.

Background and statutory framework

The planning commission was formed under the Local Government Comprehensive Planning Enabling Act. Its removal provision allowed the creating authority to remove a member for cause. The opinion drew on general definitions of cause and South Carolina court decisions about hearing rights before such removal.

Citations and references

Statutes: §6-29-310 et seq.; §§ 1-3-240 and 8-1-10 et seq. The opinion also discussed the act's removal provision.

Case: Williamson v. Wannamaker, 213 S.C. 1, 48 S.E.2d 601 (1948).

Official title

Regarding the grounds for and the procedure to be followed in removing a member of the Georgetown County Planning Commission.

Requester

Jack M. Scoville, Jr., Esquire, Georgetown County Attorney

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-1-1999-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99july1scoville.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY C ONDON
ATTORNEY GENERAL

July 1, 1999

Jack M. Scoville, Jr., Esquire
Georgetown County Attorney
Post Office Drawer 1250
Georgetown, South Carolina 29442

RE:

Informal Opinion

Dear Mr. Scoville:
Your opinion request has been forwarded to me for reply. You have been requested by the Chairman of the Georgetown County Council to seek an opinion of this Office regarding the grounds for and the procedure to be followed in removing a member of the Georgetown County Planning Commission. I appreciate your incorporating a thorough legal analysis of the issue within your request. You have informed this Office of the following: The Planning Commission was established pursuant to S.C. Code Ann. §6-29-310, et. seq., the South Carolina Local Government Comprehensive Planning Enabling Act of 1994 (hereinafter the "Act"). Section 6-29-3 50 of the Act provides in pertinent part: "The governing authority or authorities creating the commission may remove any member of the commission for cause." The statute does not define ·what cause for removal entails or specify the length or conditions of the term of office for a planning commission member. The Act does not provide a procedure to be followed in removing a comm1ss10ner.

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Mr. Scoville
Page2
July 1, 1999

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Georgetown County Council adopted an ordinance
creating the Commission in conformance with the model ordinance suggested by the Comprehensive Planning Guide for Local Governments, published by the Municipal Association and the Association of Counties. The model ordinance and the ordinance adopted by County Council contain a provision for the removal of members for cause. The County's version reads as follows: Members of the Planning Commission may be removed at any time by County Council for cause. The existence of cause shall be discussed by County Council in executive session as permitted by the Freedom oflnformation Act, S. C. Code §3 0-470(a)(1 ), and the determination of removal shall be by vote in public session declaring a vacancy without a statement of cause. Any fact which, in the discretion of Council, is deemed to adversely affect the public interest, including a lack of attendance at meetings, may constitute cause. As you state in your request, the Act does not define the phrase "for cause." However, this is a phrase found in many removal statutes throughout the country and has developed a common and ordinary meaning over the years. The following discussion of the term "for cause" is found in 63C Am. Jur. 2d Public Officers and Employees § 183 (1997): "Cause" is a flexible concept that relates to an employee's qualifications and implicates the public interest; "cause" for discharge has been defined as some substantial shortcoming that renders the person's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public policy recognizes as good cause for no longer holding the position; or, as sometimes stated, dismissal "for cause'' is appropriate when an employee's conduct affects his or her ability and fitness to perform his or her duties. The phrase "for cause" in this connection means for reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely cause which the appointing power in the

Mr. Scoville
Page 3
July 1, 1999

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exercise of discretion may deem sufficient. Relatively minor acts of misconduct are insufficient to warrant removal or discharge for cause. The cause must relate to and affect qualifications appropriate to the office, or employment. or its administration, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. Neglect of duty, inefficiency, and the good faith abolition of a position for valid reasons are all legally sufficient causes for removal. (Footnotes omitted). In addition to the common and ordinary meaning of the phrase "for cause," County Council may also want to review portions of the South Carolina Constitution and statutes for examples of what may constitute cause for removal in various situations. Examples of such behavior include: embezzlement or appropriation of public or trust funds to private use, crimes of moral turpitude, malfeasance, misfeasance, incompetency, absenteeism, conflict of interest, misconduct, persistent neglect of duty in office, and incapacity. S.C. Const. art. VI, §§ 8, 9; S.C. Code Ann. §§ 1-3-240, 8-1-10 et seq. Further, other states have found that persistent absences from meetings of a board or commission constitute cause for removal. Ark. Op. Any. Gen. dated November 5, 1990, Ky. Op. Any. Gen. dated August 22, 1980, La. Op. Any. Gen. dated August 11, 1978. You also correctly state in your request that the Act does not contain a provision governing the manner of removal of a member of the Planning Commission. As such is the case, we would defer to the County Council and the County Attorney to determine the specific procedures to be followed in this regard. However, since the Act requires that removal must be "for cause," I call your attention to the following passage found in 67 C.J.S. Officers §148 (1978): Where an officer or public employee can be removed only for cause either for the reason that he holds for a term fixed by law, or during good behavior, or that a constitution or statute so provides, it is generally held that the power granted is not arbitrary to be exercised at pleasure, and the power can be exercised onlv after notice and opportunity to be heard. (Emphasis added). The courts in South Carolina have long operated under this general rule. For example, in Walkerv. Grice, 162 S.C. 29, 159 S.E. 914 (1931), the supreme court concluded

Mr. Scoville
Page4
July 1, 1999
"[a] removal for cause operates as a limitation upon the power to remove, and, in our opinion, the party to be removed, or attempted to be removed, is entitled to a hearing as to the charge that he has failed to perform his duty." Further support for this proposition is found in Williamson v. Wannamaker, 213 S.C. 1, 48 S.E.2d 601 (1948). Thus, while the County Council appears to have some discretion in determining the precise procedures to be followed when removing a member of the Planning Commission, the removal must be done with the above stated legal rule in mind.

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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 questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With best personal regards, I am Sincerely yours,

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Paul M. Koch
Assistant Attorney General