Who would replace a South Carolina sheriff who resigned more than a year before the next election?

Plain-English summary

The Attorney General said that, after the Lee County sheriff resigned with more than a year left before the next general sheriff election, the chief deputy or second-in-command would act as sheriff until the vacancy was filled. The governor would appoint a suitable person to serve until a special election selected a sheriff for the remainder of the period described by the statute.

The opinion emphasized the resignation. Although the sheriff had been indicted, the separate procedure for a sheriff suspended after indictment did not govern a vacancy created by resignation. The office suggested contacting the State Elections Commission about setting the special election.

Currency note

This opinion was issued in 2010. 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: Who acted as sheriff immediately after the resignation? A: The opinion said the chief deputy or second-in-command acted until the vacancy was filled.

Q: Was a special election needed in the described situation? A: Yes. Because the vacancy occurred more than one year before the next general sheriff election, the opinion said the governor would appoint someone until a special election was held.

Q: Did the indictment-suspension procedure control despite the resignation? A: No. The office distinguished a vacancy created by resignation from a temporary suspension following indictment.

Background and statutory framework

A legislator asked how to replace Lee County's sheriff after the sheriff resigned following an indictment. The opinion applied the vacancy subsections for a resignation well before the next election and separated them from the suspension procedure.

Citations and references

The original text below quotes S.C. Code Ann.§ 23-11-40 and discusses Section 23-11-50.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-3-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/brown-g-a-os-9062-5-3-10-replace-sheriff-resigned-following-indictment-to-federal-drug-charges.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY G ENERAL

May3, 2010

The Honorable Grady A. Brown
Member, House of Representatives
304B Blatt Building
Columbia, South Carolina 29201
Dear Representative Brown:
In a telephone call you indicated that the Lee County sheriff has resigned following his indictment to federal drug charges. You have questioned the procedure to replace the sheriff following such resignation. You further indicated that the sheriff has approximately two years and eight months left in his term so the next election for sheriff would not be until November, 2012. S.C. Code Ann.§ 23-11-40 states as follows: (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. (C) If any vacancy occurs in the office at any time and is created by suspension by the Governor upon any sheriff's 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.

R EM BER"r C . DENNIS B UILDING

•

POST O FFICE Box 11549 •

COLUMBIA, SC 29211-1549

• T ELEPHONE 803-734-3970 • FACSCMILE 803-253-6283

The Honorable Grady A. Brown
Page2
May 3, 2010

(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. (emphasis added). Inasmuch as you indicated that the sheriff has resigned following his indictment and there is more than one year prior to the next sheriffs election, subsections (B) and (D) of Section 23-11-40 control. Pursuant to subsection (D), the chief deputy or second-in-command acts until the vacancy is filled. Pursuant to subsection (B), since the vacancy occurs "more than one year prior to the next general election for county sheriffs", the Governor would appoint a "suitable person" until a special election is held. You should contact the State Elections Commission as to the setting of the special election. We emphasize here that our conclusion is premised upon a resignation by the sheriff. Such resignation thus distinguishes Section 23-11-50 which authorizes the coroner to serve pending trial following indictment of the sheriff. In this instance, the sheriff has resigned, thereby creating a vacancy to be filled by the mechanism of Section 23-11-40, rather than the procedure set forth in Section 23-11-50. If there is anything further, please advise. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

~c~

IRObertD.COok

Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General