Who serves as sheriff in South Carolina when the elected sheriff dies or resigns?

Plain-English summary

A South Carolina legislator asked how a vacant sheriff’s office was filled and who served in the meantime. The June 2001 informal opinion described a sequence for a vacancy caused by death or resignation: the chief deputy or second in command acted first, the governor appointed a suitable county elector, and a special election occurred if the vacancy arose more than one year before the next general sheriff election.

When the vacancy was less than one year before that general election, the letter said no special election was held and the governor’s appointee served the rest of the term. It treated a vacancy tied to an indictment and gubernatorial suspension as subject to a separate statutory route.

Currency note

This opinion was issued in 2001. 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

Sheriff offices

The letter said the chief deputy or second in command temporarily exercised the sheriff’s duties after death or resignation, until the governor filled the vacancy. It distinguished a vacancy caused by indictment.

County election officials

The opinion tied the special-election question to how much time remained before the next general election for sheriff: more than one year required one; less than one year did not.

Common questions

Does the chief deputy automatically become the elected sheriff? A: No. The AG said the deputy acted as sheriff only until the vacancy was filled through the statutory process.

When was a special election required?
A: Under the statute described in 2001, a special election followed a vacancy more than one year before the next general election for county sheriffs.

Who appointed the interim replacement?
A: The letter assigned the appointment to the governor and said the appointee had to be a suitable elector of the county.

Background and statutory framework

The opinion quoted Section 23-11-40, including its distinct provisions for an ordinary vacancy, a vacancy from indictment-related suspension, and temporary service by a chief deputy. It cited Privette v. Grinnell on the legislature’s power to set vacancy procedures for the constitutional office of sheriff.

Citations and references

• Section 23-11-40: the vacancy and interim-service procedures quoted by the AG.
• Privette v. Grinnell: constitutional background for legislative vacancy rules.

Official title

Concerning the filling of a vacancy in the office of the sheriff.

Requester

The Honorable John M. Knotts, Jr., Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-21-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01june-21-knotts000.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATIORNEY GENERAL

June 21, 2001

The Honorable John M. Knotts, Jr.
Member, House of Representative
500 West Dunbar Road
West Columbia, South Carolina 29169
Dear Representative Knotts:
By your letter of June 1, 2001, you have requested an opinion of this Office concerning the filling of a vacancy in the office of sheriff. Specifically you inquire about the sequence of events followed to fill the vacancy, such as how the appointment is made and how the election is held. You also ask about the appointment of the interim sheriff. The office of Sheriff is a constitutional office. See Article V, § 24; see also Privette v. Grinnell, 191 S.C. 376, 4 S.E.2d 305 (1939). As stated by the Court in Privette, because "the Constitution makes no provision whatever for the filling of a vacancy nor does it prescribe any time for the election of sheriffs, ... it follows that these are matters within the legislative power and discretion." 4 S.E.2d at 306. Fortunately, the General Assembly has expressly delineated the procedures to be followed upon a vacancy in the office of sheriff. South Carolina Code of Laws Section 23-11-40 states: (A) If any vacancy occurs in the office of sheriff in any county of this State less than one year prior to the next general election for county sheriffs, the Governor may appoint some suitable person who must be an elector of the county and who, upon qualifying, according to law, is entitled to enter upon and hold the office until a sheriff is elected and qualifies in the election and is subject to all the duties and liabilities incident to the officer during the term of his service in the office. (B) If any vacancy occurs in the office more than one year prior to the next general election for county sheriffs, the Governor shall appoint some suitable person as provided in subsection (A) until a special election is held to elect a sheriff to hold the office until a sheriff is elected and qualifies in the next general election for county sheriffs.

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

Representative Knotts
June 21, 2001
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(C) If any vacancy occurs in the office at any time and is created by suspension by the Governor upon any sheriffs indictment, the Governor shall appoint some suitable person, as provided for in subsection (A), to hold the office until the suspended sheriff is acquitted, or the indictment is otherwise disposed of, or until a sheriff is elected and qualifies in the next general election for county sheriffs, whichever event occurs first. (D) The chief deputy or second-in-command of the sheriffs office shall act as sheriff until the vacancy is filled, except in the case when a vacancy occurs as a result of an indictment, where the vacancy will be filled as provided in Section 23-11-50. While acting as sheriff, the chief deputy or second-in- command is subject to the duties and liabilities incident to the office of sheriff. Under the terms of the statute, if a vacancy occurs due to the death or resignation of the sheriff, the Governor appoints a suitable person to fill the vacancy until either the next general election (subsection (A)) or until a special election is held to elect a person to serve the remainder of the original term (subsection (B)). Whether a special election is held depends on when the vacancy in office occurs. If the vacancy occurs less than one year before the next general election for the county sheriff, no special election is held and the Governor's appointee serves the remainder of the term. Ifthe vacancy occurs more than one year before the next general election for the sheriff, then a special election must be held. Furthermore, Subsection (D) provides that the chief deputy or second in command of the sheriff's office shall act as sheriff until the vacancy in office is filled, assuming the vacancy occurs as a result of death or resignation and not indictment.

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An example may best illustrate the sequence of events. Suppose the sheriff was just elected or re-elected in the November of 2000 general election. The next general election for the sheriff would be held in November of 2004 because the term of office for a sheriff is four years. See S.C. Const. Art. V, § 24. If a vacancy occurred today, the chief deputy or second in command would immediately assume the duties of the office. See§ 23-11-40 (f1). As soon as practical, the Governor would then appoint a suitable person to assume the shenir s duties fron! the chiet deputy until a special election is held. See § 23-l l-40(B). After the special election, the winning candidate would assume the duties from the appointee and serve the remainder of the term, i.e., until the successor is elected at next general election in 2004. In short, Section 23-11-40 provides for the filling of the vacancy in the office of sheriff-- first by the chief deputy, then by the Governor's appointee, and then, if applicable, by the winning candidate of a special election. At the next general election for the county sheriff, a successor is duly elected and will assume office at the expiration of the original sheriffs term, the first Tuesday in January after the election. 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 nor officially published in the

Representative Knotts
June 21, 2001
Page 3of3
manner of a formal opinion.
With kind regards, I remain
Very truly yours,

Susannah Cole
Assistant Attorney General

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