Did Georgetown County's elections board invalidate an officer election by changing its bylaws?

Plain-English summary

In 2006, a legislator asked whether the Georgetown County Board of Elections and Registration could elect officers before the date specified in revised bylaws. The South Carolina Attorney General said the timing difference did not, by itself, invalidate the election. The board's enabling legislation did not require bylaws or fix an election procedure for officers other than the chair, whose selection was governed separately.

The office said the board had implied authority to adopt bylaws and elect its officers. Drawing on earlier opinions about a deliberative body's continuing control over its procedural rules, it reasoned that the board could amend, repeal, or disregard its bylaws. The opinion did not purport to decide every possible challenge to a particular election; its conclusion was that a departure from the bylaw date was not automatically fatal.

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: Did the board have power to change its officer-election bylaws?

A: The AG said yes. It treated bylaws and officer elections as implied powers reasonably needed for the board's work.

Q: Was an early officer election automatically void?

A: No. The opinion said disregarding the bylaw timing did not per se invalidate the election.

Q: Did the same rule let the board choose its chair?

A: No. The opinion distinguished the chair, whom the legislative delegation appointed under the board's enabling legislation.

Background and statutory framework

The board had replaced a rule calling for officer elections at the first meeting after a general election with one calling for the April meeting. The AG considered that change alongside the board's enabling act and prior opinions on procedural rules, emphasizing that the act did not require the board to adopt bylaws.

Citations and references

• 1994 S.C. Acts 6046: the enabling legislation the AG examined.
• State ex rel. Coleman v. Lewis, 181 S.C. 10, 86 S.E. 625 (1936): continuing rulemaking power discussed through an earlier opinion.

Official title

Concerning the bylaws adopted by the Georgetown County Board of Elections and Registrations (the “Board”).

Requester

The Honorable Vida O. Miller, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-4-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06may4-Miller-2.pdf

Original opinion text

-1·

I

l

HENRY MCMASTER
A1TORNEY GENER.'!.

!
I
I

May4, 2006

The Honorable Vida 0. Miller
Member House of Representatives
P.O. Box 3157
Pawleys Island, SC 29585
Dear Representative Miller:

j

!

L

We received your letter concerning bylaws adopted by the Georgetown County Board of Elections and Registration (the "Board"). From your letter, we understand the Board recently changed the provision in its bylaws pertaining to the election of the Board' s officers. Attached to your letter, we found both a copy of the old and the revised bylaws. The Board's previous bylaws called for the election of its officers ''by majority vote of the members ofthe Board, for a two year term at the first meeting of the Board in each year following a general election." Currently, the Board's bylaws read: "The Vice-Chairman and other officers shall be elected, by majority vote of the members of the Board, for two year terms at the April meeting of the Board in each year following a general election." You informed us that the Board's members, just after their appointment to the Board, held an election for officers and then made the above revisions to the bylaws. You indicated in a telephone conference with our Office that the Board is intending to hold another election this month. Thus, you ask: "If officers were elected in accordance with the old bylaws in March of2005, following the general election and another election of officers was held before April of2007, would that be a valid election of officers?" As you mentioned, it is the Board's bylaws that provide for the election of the Board's Officers (other than Chairman, whose appointment is governed by statute). Thus, we look the legal authority governing bylaws. We addressed a governing body's authority with respect to its bylaws in an opinion dated April 14, 1986, involving the Greenville Transit Authority. Quoting State ex rel. Coleman v. Lewis, 181 S.C. 10, 22, 86 S.E. 625, 630 (1936) we stated: "[t)he power to make rules is not one when once exercised is exhausted. It is a continuous power, always subject to be exercised

101 ~ if~
~ERT c.

DENNIS R 1111 n1Nr.

•

Pn<:T Oo:r:iri= R rw 1 I

~,10

•

(',..., ' .. no. c:r , n .., I '

'~"'

-

..... . - ··-- - · . .

"''~ ~~ --·~"
•

The Honorable Vida 0. Miller
Page2
May4, 2006
by the [legislative body], and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." Further, we added: It has also been stated that a "rule of parliamentary law is a rule

created and adopted by the legislative or deliberative body it is intended to govern .... [It] is subject to revocation or modification at the pleasure of the body creating it ....

I
I

The rules of procedure passed by one legislative body are not binding on a subsequent legislative body .... Rules of procedure are always within the control of a majority of a deliberative body and may be change at any time by majority vote .

"
Id. (quoting 67 C.J.S. Parliamentary Law §§ 2, 4, 8). Additionally, we concluded '"rules of procedure are always within the control of the majority and may be changed at anytime by a majority vote."' Id. (quoting State ex rel. Kiel v. Riechmann, 142 S.W. 304, 310 (Mo. 1911)).

I

The principles presented in our 1986 opinion are further supported by Manigault v. Springs, 199 U.S. 473 (1905), in which the United States Supreme Court addressed whether the South Carolina Legislature acted illegally when it refused to comply with a statute requiring the Legislature to follow certain procedures when enacting legislation. As this is not a constitutional provision, but a general law enacted by the legislature, it may be repealed, amended, or disregarded by the legislature which enacted it. This law was doubtless intended as a guide to persons desiring to petition the legislature for special privileges, and it would be a good answer to any petition for the granting of such privileges that the required notice had not been given; but it is not binding upon any subsequent legislature, nor does a noncompliance with it impair or nullify the provisions of an act passed without the requirement of such notice. Id. at 487. Furthermore, in an opinion of this Office, we applied the holding in Manigault to a situation in which a city council previously adopted a provision in its city code requiring the city manager to

r

e

}
f

I

'

The Honorable Vida 0. Miller
Page 3
May4, 2006

submit a budget to the council within a certain time frame. Op. S.C. Atty. Gen., October 24, 1997. Based on Manigault, we concluded "if a court where to examine this issue, it would likely conclude that a sitting council would not be bound by time restraints placed on it by the ordinance passed by a prior council and would be capable of determining the time in which the city manager should prepare and submit the budget estimate to the sitting council." Id.

I
I

L

In a recent opinion of this Office, we specifically discussed the Board's authority to change or adopt new bylaws and its authority to elect officers. Op. S.C. Atty. Gen., February 6, 2006. With regard to the Board's authority, we stated:

As to your questions of whether the Board is authorized to change or adopt new bylaws and elect new officers, as you have stated, apparently there are no specific provisions referencing the changing of such bylaws or electing officers, other than chairman [in the enabling legislation creating the Board]. However, generally, a board or commission has implied authority to conduct business, which would include the adoption of bylaws and the election of officers, as such matters are reasonably necessary for the work of a board or commission. As stated in a prior opinion of this Office dated August 1, 1961, "[i]n addition to the express powers which ... (a) ... board or commission might have, these governmental bodies have such implied powers as are necessarily inferred or reasonably necessary to make effective the express powers granted to them." See also, 81A C.J.S. States,§§ 224 and 249 (stating boards and commissions have such powers as have been delegated to them by express constitutional and statutory provisions, or as may properly be implied from the nature of the particular duties imposed upon them). Consistent with such, the Board has implied authority to change or adopt new bylaws and to elect officers except for the office of chairman, which is chosen by the legislative delegation.

In analyzing the issue presented in your letter, we again reviewed the Board's enabling legislation and found no reference to the adoption of bylaws by the Board or to the election of the Board's officers, other than the Chairman is to be appointed by the legislative delegation. 1994 S .C. Acts 6046. Thus, we presume the Board acted under its implied authority to conduct its business in adopting bylaws and electing officers. Although one would expect a board to act in accordance with its own bylaws, in this instance it may not be legally required to do so. In the case of the Board, it is not required to adopt bylaws, moreover enforce such bylaws. In addition, based on the law cited

I

.!

The Honorable Vida 0. Miller
Page4
May4, 2006

{

'I

above, the Board may amend, repeal or disregard such bylaws at its pleasure. Accordingly, the fact that the Board chooses to ignore its bylaws and hold an election of its officers at time other than that proscribed in the bylaws does not per se invalidate the election of such officers.

!

l
I
I

Very truly yours,

~lh-~
Cydney M. Milling
Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General

r

l