Did a St. Andrews district board member lose the seat after moving outside the district?

Plain-English summary

In 2006, a senator asked whether an elected member of the St. Andrews Public Service District board could continue serving after moving outside the district. The Attorney General said a board member had to remain a district resident to stay qualified. If the member no longer resided there, the office was automatically vacated, but the person could continue acting as a de facto officer until a successor was chosen and qualified.

The AG did not decide where the particular member actually lived. It treated residency as a mixed question of law and fact, including intent, and accepted the request's nonresidency premise only for its legal analysis. The automatic-vacancy conclusion therefore depended on that premise being true.

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

Q: Was district residence required for continued board service?

A: The AG said yes. It applied the elector-qualification principle and earlier district-board opinions.

Q: Did moving outside the district automatically vacate the seat?

A: If the member truly ceased to be a district resident, the AG said the office was automatically vacated.

Q: Could the former member still act before a successor qualified?

A: The AG said the person could continue in a de facto capacity until a successor was chosen and qualified.

Q: Did the AG establish that the specific member had moved residence?

A: No. It said residency required factual determination beyond its opinion.

Background and statutory framework

The AG relied on the state constitutional elector qualification for office and earlier opinions about district-board residency. It also cited the holdover treatment of an officer who had lost qualification but continued to act pending a successor.

Citations and references

• Article XVII, section 1 of the South Carolina Constitution: elector qualification for public office.
• Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952): de facto service until a successor qualifies.

Official title

Questioning whether “a person who moves from within the territory of the St. Andrews Public Service District becomes ineligible for continued service on the District Board. And would that move outside the district trigger an automatic vacancy of the seat?”

Requester

The Honorable Glenn F. McConnell, President Pro Tempore, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-28-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mar28-06-McConnell.pdf

Original opinion text

HENRY McMAsTER.
ATI'ORNEY GENERAL

March 28, 2006

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The Honorable Glenn F. McConnell
President Pro Tempore
The Senate
P. 0 . Box 142
Columbia, South Carolina 29202
Dear Senator McConnell:
You have asked for an opinion "on an issue that was recently brought to my attention by a constituent who passed the questions to me." You note that it is your constituent's understanding that "an elected member of the St. Andrews Public Service District recently moved outside of the district. He says that he still holds his seat thereon." Thus, you request an opinion regarding the following:
[m ]y questions, based upon the information provided to me, are whether a person who moves from within the territory of the St. Andrews Public Service District becomes ineligible for continued service on the District board. Also would the individual's move outside the district trigger an automatic vacancy of the seat?

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Law I Analysis
Your specific questions are answered by prior opinions of this Office. In an opinion, dated July 7, 1999, we addressed the situation of whether the members of the Goose Creek Recreation Commission must reside within the boundaries of a newly enlarged District. In that Opinion, we noted that Art. XVII, § l of the State Constitution provides that "[n]o person shall be elected or appointed to any office in this State unless he possess the qualifications of an elector .... " Our Supreme Court has stated that where a residency requirement has not been specified by the legislature, such may necessarily implied, to prevent circumvention of the Constitution. McLure v. McE!roy, 211 S.C. 106, 44 S.E.2d 101 (1947), overmled on other grounds by Weaver v. Recreation District, 328 S.C. 83, 492 S.E.2d 79 (1997). To be qualified as an elector, the earlier opinion recognized the following: one must meet the requirements specified in S.C. Code An.§ 7-5-120. One of the requirements listed in this section is that an individual must be a resident in the

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The Honorable Glenn F. McConnell
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March 28, 2006

county and in the polling precinct in which the elector offers to vote. Residency is a mixed question of fact and law and turns on the individual's intent. Op. Atty. Gen., dated May 7, 1991.

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The July 7, 1999 Opinion thus concluded that members of the Goose Creek Recreation District board were required to reside in the District in order to hold such offices. We stated as follows: (t)his Office has issued several opinions on questions similar to the one raised in your opinion request. For example, in an opinion dated May 7, 1991, we were asked whether a person residing outside of the New Prospect Area Fire District, but owning land in the district, may be appointed to the Board of Fire Control for the district. The enabling legislation provided that the Board shall be composed of five members who shall be appointed by the Governor upon the recommendation of a majority ofthe Spartanburg County Legislative Delegation. The enabling legislation was silent as to any qualifications regarding the residency of appointees. Relying on Article XVII, §1 of the Constitution and S.C. Code Ann. § 7-5-120, this Office concluded that since one must be a qualified elector of a district to be an officeholder in the district, a member of the Board of Fire Control must be a resident of the district and not merely own property therein.

In an opinion dated August 1, 1985, this Office was asked whether a mayor

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possessed the power to remove an individual from the office of housing authority commissioner if that individual had moved out of the city limits. In this case, a commissioner formerly residing in the City of Greenville had moved to the City of Simpsonville. After the move, the individual was reappointed to an additional term of office. As is often the case, the enabling legislation did not contain a residency requirement. The author, citing Article XVII, § 1 and its implied residency requirement, concluded that an individual appointed to the office ofhousing authority commissioner must reside within the City of Greenville. Based on the foregoing, a member of the Goose Creek Recreation Commission is an office-holder and is thus required to be a qualified elector within the district. .... One of the requirements needed to be a qualified elector is residency within the boundaries of the district. Accordingly, in order to properly serve on the Goose Creek Recreation Commission, one must reside within the boundaries of the Goose Creek Recreation Commission. However, since residency is a mixed question of fact and law and turns on an individual's intent, you may wish to consult with the county attorney to determine whether a specific individual resides within the boundaries of the Goose Creek Recreation Commission.

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The Honorable Glenn F. McConnell
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March 28, 2006

Another previous Opinion addresses your remaining question as to whether or not a vacancy is created by an officer moving outside his or her district. In Op. S.C. Atty. Gen., Op. No. 93-68 (October 18, 1993), we stated:
[t]his Office has previously advised that an individual serving on Colleton County Council, who moved from the district from which he was elected to council, would no longer be qualified to serve on Colleton County Council. Op. Atty. Gen. dated August 27, 1985; see also Ops. Atty. Gen. dated October 4, 1984; October 4, 1968; March 8, 1978; February 17, 1956; and December 16, 1970 as to the same or substantially similar issues, to the effect that public officers vacate or forfeit their offices at the time they ceased to be a resident of the affected district or political subdivision. Thus, the same conclusion would be reached as to a member of Sumter County Council who has moved from the district from which he was elected, that he has vacated his office as he is no longer qualified to serve from that district. Opinion No. 93-68 went on to discuss the legal status of the officer who had moved out of the election district in question, noting that
[w ]e have advised previously that the aforementioned member of Colleton County Council would continue to serve in a de facto capacity until his successor could be selected; as you observed, however, Colleton County was under jurisdiction of the federal court at the time of that opinion and the court order was an important factor. We have, however, advised that a city council member would continue to serve, in a de facto capacity, after he had moved permanently out of the city, until such time as his successor could be selected. Op. Atty. Gen. dated October 4, 1984; see also the opinions cited therein. Section 5-15-40 is similar to § 4-9-90 in its lack of language concerning a term of years "and until a successor has been elected/appointed and qualified." As you point out, the decision inBradfordv. Byrnes, 221S.C.255, 70 S.E.2d 228 (1952), states that "in the absence of pertinent statutory or constitutional provision, public officers hold over de facto until their successors are appointed or elected and qualify." Id., 221 S.C. at 262. In conjunction with our response to your fourth question and in keeping with Bradford v. Byrnes, the individual could continue to serve in a de facto capacity until his successor is selected .... As noted, residency is a mixed question oflaw and fact. Of course, only a court and not this Office in an opinion may make factual determinations. See, Op. Atty. Gen., December 12, 1983.

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The Honorable Glenn F. McConnell
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March 28, 2006

Thus, as you have indicated, we must assume that the individual in question is not a resident of the District. We thus make no conclusion in this regard.

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However, the law is clear. A member of the St. Andrews Public Service District must remain a resident of the District in order to continue to be qualified to serve. If the member no longer resides in the District, he or she automatically vacates the Office, but continues as a de facto officer until a successor is chosen and qualifies. Very truly yours,

Assistant Deputy Attorney General

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