Did four votes at a six-member Berkeley County delegation meeting validly recommend a Goose Creek Recreation Commission appointment?

Plain-English summary

In 1999, the Berkeley County Legislative Delegation had nine members. Six attended a meeting to consider recommending a member's reappointment to the Goose Creek Recreation Commission. Four voted for the recommendation, one voted against it, and one abstained. The Attorney General's office concluded that the four favorable votes were enough to recommend the person for appointment by the Governor.

The appointment act required a recommendation by “a majority of the Legislative Delegation of Berkeley County.” The writer read that phrase under the common-law quorum rule: a majority of the entire nine-member delegation had to be present, but a majority of the members present could act. Six members supplied a quorum; four was a majority of six. The letter distinguished a statute expressly requiring a proportion of all members, which this act did not say. It addressed the recommendation, while the act placed the appointment with the Governor.

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

Q: Did the delegation need five affirmative votes because it had nine members? A: The office said no under the wording of the appointment act. It counted a majority of a quorum, not a majority of all nine members, for the recommendation.

Q: Was the meeting large enough to conduct this business? A: Yes. Six of the nine members attended, exceeding the majority of the whole body required for a quorum under the rule the opinion applied.

Q: Did the abstention prevent a valid recommendation? A: No. Four members voted in favor out of six present. The opinion treated that as a majority of the quorum despite one abstention and one opposing vote.

Q: Did the delegation itself appoint the commissioner? A: No. The act described a recommendation from the delegation followed by appointment by the Governor; the opinion found the recommendation valid.

Background and statutory framework

The letter quoted the 1971 amendment to the act creating the Goose Creek Recreation Commission. It called for the Governor to appoint members “upon the recommendation of a majority of the Legislative Delegation of Berkeley County.” The office relied on the quorum principle discussed in Gaskin v. Jones and compared wording that would have required a vote of the body's total membership. This was an informal opinion by the signing assistant attorney general, not one personally scrutinized or officially published by the Attorney General.

Citations and references

• Appointment act: Act No. 603 of 1971, quoted in the opinion.
• Quorum rule: Gaskin v. Jones, 198 S.C. 508, 18 S.E.2d 454 (1942), cited for the majority-quorum principle.

Official title

Asking whether the number of favorable votes in a meeting of the Berkeley County Legislative Delegation meets the statutory requirements for appointment of an individual to the Commission.

Requester

The Honorable William C. Mescher, Senator, District No. 44

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-4-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/1999/05/99may4mescher.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

May4, 1999

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The Honorable William C. Mescher
Senator, District No. 44
P.O. Box One
Pinopolis, South Carolina 29469
RE:

Informal Opinion

Dear Senator Mescher:

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Attorney General Condon has forwarded your opinion request to me for reply. You have informed this Office that at a meeting of the Berkeley County Legislative Delegation (hereinafter the "Delegation"), a vote was taken on the reappointment of a member of the Goose Creek Recreation Commission (hereinafter the "Commission"). The Delegation is composed of nine members. Six members of the Delegation were present at the meeting in question. Out of those six, four voted in favor of reappointment, one voted against reappointment, and one abstained. You have asked whether the number of favorable votes meets the statutory requirements for appointment of an individual to the Commission. The Commission was created by Act No. I 093 of 1966. This Act was amended by Act No. 603 of 1971, which provides in part as follows: Section 2. The commission shall be composed of seven members, who shall be appointed by the Governor upon the recommendation of a majority of the Le2islative Dele2ation of Berkeley County, who shall serve for terms of fours years or until their successors are appointed and qualify, .... (emphasis added).

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

Senator Mescher
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May 4, 1999
As a general rule, in the absence of any statutory or other controlling provision, the common law rule to the effect that a majority of a whole body is necessary to constitute a quorum applies, and no valid act can be done in the absence of a quorum. Gaskin v. Jones, 198 S.C. 508, 18 S.E.2d 454 (1942). A majority of such body must be present to constitute a body competent to transact business. Id. If a quorum is present, a majority of a quorum is sufficient to act and bind the entire body. Id.

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Here, six out of the nine members of the Delegation attended the meeting and thus a quorum was present. However, to answer your question, it must be determined whether the phrase "upon the recommendation of a majority of the Legislative Delegation of Berkeley County" signifies a departure from the common law rule mentioned above. In other words, does this phrase mean a majority of those present or a majority of the total membership of the Delegation. When the legislature requires a specified vote of a proportion of a governing body, the requirement is met by that proportion of a quorum. City of Hiawatha v. Regional Planning Commission of Linn County, 267 N. W.2d 31 (Iowa 1978)(statutory language requiring a "majority vote of the planning commission" merely codifies the common law and was thus satisfied by a majority of the members present, assuming there was a quorum); McQuillin, Municipal Corporations, § 13 .31.10 (3rd Ed. l 992)("unanimous consent of the council" requires unanimity of a quorum only). Put another way, a requirement for the concurrence or vote of a specified proportion or percent of "the council," or similar description of the governing body, in order for it to take any particular action has been construed to require the concurrence of that proportion or percent of the members present, there being a quorum, and not of that proportion or percent of all its members. C.J.S. Municipal Corporations, § 404. If, on the other hand, the legislature wants to require that decisions of a governing body be made only by a distinct proportion of the total membership of the body, this can be done by adding words such as "all of the members of' or "the members of' after the words "a majority vote of." City of Hiawatha v. Regional Planning Commission of Linn County, supra (designating a proportion of the members of a particular body is the usual way in which a legislature expresses its intention that decisions of the body be made by the designated proportion of the whole membership). Based on the foregoing, since the phrase "upon the recommendation of a majority of the Legislative Delegation of Berkeley County" does not designate a proportion of the "members of the Legislative Delegation," but merely requires a "majority of the Legislative Delegation," the common law rules regarding quorums would govern. Therefore, in order to properly recommend an individual for appointment to the Commission, the individual

Senator Mescher
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May 4, 1999
would need to receive a majority vote of a quorum of the Delegation. In this case, it appears that the individual in question did receive a majority vote of a quorum and, therefore, was properly recommended for appointment by the Governor. 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.

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With kindest regards, I remain
Very truly yours,

73_~ (.J
Paul M. Koch
Assistant Attorney General

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