Could a veteran receiving 100% VA disability be appointed as a county veterans affairs officer?

Plain-English summary

In 2011, the South Carolina Attorney General said a person's disability did not itself make the person ineligible for appointment as Spartanburg County Veterans Affairs Officer. The legislator's request described a candidate receiving 100% disability from the Veterans Administration and asked whether the paid county position was available to that person. The AG separated eligibility to hold the office from the effect of paid work on disability benefits.

The AG did not determine whether taking the position would change the candidate's VA disability classification or payments. It said that benefits question required a factual determination outside the office's scope. The opinion's references to workers' compensation and disability cases illustrated why disability status could depend on circumstances; they did not decide the candidate's federal benefits. The opinion said the appointment decision belonged to the delegation.

Currency note

This opinion was issued in 2011. 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 a 100% disability rating automatically disqualify the candidate? A: No. The AG concluded that disability alone did not prevent appointment to the county veterans affairs office.

Would a salary from the office reduce or end VA disability benefits? A: The AG did not answer that question. It said evaluating the effect of an appointment on the candidate's benefits was beyond its scope.

Who would decide whether to appoint the candidate?
A: The opinion said the decision as to appointment rested with the delegation. It did not make that selection itself.

Background and statutory framework

A state representative asked about a candidate with a 100% VA disability rating who might receive pay as Spartanburg County Veterans Affairs Officer. The AG quoted an earlier opinion that identified incapacity as a removal ground but found no authority to temporarily replace a comatose council member. It also discussed cases illustrating the fact-specific nature of disability classifications. It confined its conclusion to appointment eligibility, leaving the benefit consequences unresolved.

Citations and references

The opinion cites its July 21, 2003 opinion on office holding and discusses Smith v. SC Dept of Mental Health and McCollum v. Singer Co. as examples concerning disability benefits. It does not make a federal VA benefits determination.

Official title

Questioning whether one who has been unable to work and is presently drawing 100% disability from the Veterans Administration would be eligible to be appointed as the Spartanburg County Veterans Affairs Officer.

Requester

The Honorable Mike Forrester, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-1-2011-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/07/forrester-m-os-9287-7-1-11-spartanburg-county-veterans-affairs-officer.pdf

Original opinion text

ALANWJLSON
ATIORNEY GENERAL

July 1, 2011

The Honorable Mike Forrester
Member, House of Representatives
287 Creekridge Drive
Spartanburg, South Carolina 29301
Dear Representative Forrester:
Our Office received your opinion request letter dated June 21, 2011. You asked whether one who has been deemed unable to work and is presently drawing 100% disability from the Veterans Administration would be eligible to be appointed as the Spartanburg County Veterans Affairs Officer. You explained that the Spartanburg County Veterans Affairs Officer is a paying position. Additionally, you informed us that the individual in question was diagnosed with Post Traumatic Stress Disorder (PTSD) and was awarded 100% disability with total occupational and social impairment. You also specifically ask if the individual is not eligible for employment what the reason for denial would be. After initial research on the issue of whether one with 100% disability may hold such an office, we have concluded that the fact that one is disabled may not affect his ability to accept an appointment to a particular office. However, if he were to accept the appointment, this Office cannot make a determination as to how his acceptance of the position would affect his disability benefits.

Law/Analysis
For clarity, this letter will separately address the two issues at hand, distinguishing between the physical disability and the disability benefits. The first issue is one of the individual's physical disability. The law is well established that one's disability does not make him ineligible for an appointment to an office such as the State Veteran Affairs Office. There are many examples, past and present, state and federal, where individuals with disabilities have been found eligible to hold an office. Among many other examples, in an opinion of this Office dated July 21, 2003, we addressed whether a county councilman who was involved in an automobile accident, leaving him in a coma, would be eligible to retain his position as councilman. We concluded as follows:

REMBERT

c. DENNIS BUILDING •

POST OFFICE Box 11549

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COLUMBIA, SC 29211 -1549

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TELEPHONE 803-734-3970

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FACSIMILE 803-253-6283

The Honorable Mike Forrester
Page2
July 1, 2011
There are certain constitutional and statutory provisions which relate to the removal of public officials, such as county council members for, among other things, incapacity ... "[o]fficers shall be removed for incapacity, misconduct, or neglect of duty ...."
[However, this Office could] find no statutory authority which would allow for temporarily replacing the councilman in this circumstance. Op. S.C. Atty. Gen., July 21, 2003. The second issue is one of the individual's disability benefits. While one's physical disability does not make him ineligible for an office, this Office cannot make a determination as to how his acceptance of the position would affect his disability benefits. Evaluating how this individual's disability benefits would be affected if he were to accept the appointment is beyond the scope of this Office. We cannot make such a determination regarding the status of one's disability classification or benefits. "[I]nvestigations and determinations of facts are beyond the scope of an opinion of this Office and are better resolved by a court." See, Op. S.C. Atty. Gen., April 6, 2006. Although this Office cannot make such a factual determination as required when evaluating disability benefits, we can provide you with caselaw that may be relevant to the analysis. For example, in Smith v. SC Dept of Mental Health, 329 S.C. 485 (1997), the Court of Appeals explains that "[i]n accordance with the mandate of S.C. Code Section 42-9-260, regulations 67504 and 67-507 set forth the procedure for suspending or terminating workers' compensation benefits . . . Disability is presumed to continue until the employee is able to return to work without restriction for fifteen calendar days." However, in McCollum v. Singer Co., 300 S.C. 103 (1989), the Court of Appeals stated that "evidence that the claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding a total disability or require that it be reduced
·
to partial."
Our Office issued an opinion on July 9, 1975 where we explained as follows: Our Supreme Court, in the case of Stewart v. Pioneer Pyramid Life Insurance Co., 177 S. C. 132, 180 S. E. 889, considered the term as it relates to insurance contracts and stated: 'We have held that 'what amounts to a total disability is a relative matter, and depends largely upon the circumstances of each case, and upon the occupation and employment in which the person insured is engaged' (Mccutchen v. Insurance Co., 153 S. C. 401, 151 S. E. 67, 80); that the phrase is not to be literally construed, but that a person is 'deemed totally disabled when he is no

The Honorable Mike Forrester
Page 3
July 1, 2011
longer able to do his accustomed task, and such work as he has only been trained to do, and upon which he must depend for a living' (Taylor v. Insurance Co., 106 S. C. 356, 91 S. E. 326, 327.)' Op. S.C. Atty. Gen., July 9, 1975 (emphasis added). Conclusion

Consistent with well established law, it is the opinion of this Office that the fact that one is disabled would not affect his eligibility to be appointed to a particular office. However, the fact that he receives payment as an employee may cause issue with his receipt of disability benefits, an analysis that is beyond the scope of this Office. In other words, a physical disability does not render a person ineligible to hold public office. See, Op. S.C. Atty. Gen., July 21, 2003. A decision as to appointment would be up to the delegation. Sincerely,

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Leigha Blackwell Sink
Assistant Attorney General

REVIEWED AND APPROVED BY:

Deputy Attorney General