Could Goose Creek replace a recreation commissioner who missed meetings during military service?

Plain-English summary

In 2006, the Goose Creek Recreation Commission asked whether a commissioner absent for about a year on military reserve duty could be removed under a bylaw on missed meetings. The South Carolina Attorney General said the absence did not forfeit the seat. The commissioner served a legally fixed four-year term, bringing him within the state provisions protecting officers absent because of military service.

The opinion read the absence as a temporary vacancy. It said the appointing authority had to fill that temporary place until the officer returned or the term expired, whichever was shorter. Because commission members were appointed by the Governor on the recommendation of a majority of the Berkeley County legislative delegation, the AG presumed the Governor would make the temporary appointment.

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 missed meetings during reserve duty end the commissioner's term?

A: No. The AG said § 8-7-30 prevented military absence from forfeiting the office, despite the commission's bylaw.

Q: Could the commission leave the seat unfilled until the member returned?

A: The opinion read § 8-7-40 as requiring the appointing authority to name a temporary replacement for the absence.

Q: How long could the temporary appointee serve?

A: Until the commissioner returned from military service or the fixed term expired, whichever occurred first.

Q: Who did the AG expect to make the temporary appointment?

A: It presumed the Governor, who appointed the commission's regular members on the legislative delegation's recommendation.

Background and statutory framework

The opinion applied the military-absence provisions in Title 8 to a special-purpose commission whose members had four-year terms. It relied on the statute's treatment of military absence as a temporary vacancy and on the commission's appointment structure.

Citations and references

• § 8-7-30: military absence did not forfeit the officer's position.
• § 8-7-40: temporary appointment for the duration of absence or remaining term.

Official title

Regarding the absence of a commissioner due to military service.

Requester

Bill Starr, Chairman, Goose Creek Recreation Commission

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-8-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06may8-Starr.pdf

Original opinion text

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HENRY McMASTER
ATIORNEY GENERAL

May8, 2006

Bill Starr, Chairman
Goose Creek Recreation Commission
Post Office Box 39
Goose Creek, South Carolina 29445
Dear Mr. Starr:
We understand from your letter that you, on behalf of the Goose Creek Recreation Commission (the "Commission"), request an opinion of this Office regarding the absence of a commissioner due to military service. You state: The Goose Creek Recreational Commission is a special purpose district comprised of a seven member volunteer board. Our by laws indicate a that if a Commissioner misses a certain number of meetings, that Commissioner can be dismissed. We have a Commissioner that has been absent for approximately one (1) year because he was called to duty in the Reserves. We do not know if and when he can return to the Commission. Thus, you request an opinion regarding the Commission's obligations to this commissioner and whether he "[c]an he be replaced temporarily or should be resign?" Law/Analysis Chapter 7 of title 8 of the South Carolina Code addresses issues involving the absence of public officers and employees due to military service. S.C. Code Ann.§§ 8-7- 10 et seq. (1986 & Supp. 2005). Section 8-7-30 of the South Carolina Code (1986) provides: The absence of any officer from his office or position caused by his being in the military service shall not create a forfeiture of or vacancy in the office or position to which such officer was elected or appointed but shall be construed merely to create a temporary

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• POST OFFICE Box 11549 •

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Mr. Starr
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May8, 2006
vacancy. Wherever the terms "forfeiture of office" or ''vacancy in office" or other words of similar import are used in any law of this State in relation to an officer they shall be construed in accordance with the provisions of§§ 8-7-10 to 8-7-80 and shall not be construed to apply to any absence of such officer who is absent from his office or position by reason of his being in the military service. An officer who is present at and able to perform the duties of his office shall not be considered absent within the meaning of this section.

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Section 8-7-10( 1) of the South Carolina Code ( 1986) defines "officer" as "officer or employee of the State or any political subdivision thereof who is elected or appointed for a definite term which is fixed by law ...." We understand the Commission was formerly known as the Goose Creek Park Playground Commission. Based on our research of the enabling legislation creating the Commission and the subsequent amendments, we discovered the Commission is composed of seven members who are appointed by the Governor upon the recommendation of a majority of the Berkeley County Legislative Delegation. 2000 S.C. Acts 3586. The members are to serve a four-year term. Id. Thus, we believe the commissioner is an officer pursuant to section 8-7-10( 1) of the South Carolina Code. Therefore, the commissioner's absence may not, under section 8-7-30, result in the forfeiture ofhis position on the Commission despite a provision indicating otherwise in the Commission's bylaws. Section 8-7-40 of the South Carolina Code provides for the appointment of a person to fill the temporary vacancy created by the absent officer. This provision provides:

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In case a temporary vacancy is created in any office or position by reason of the absence of the officer in the military service the appointive authority shall appoint some person to fill temporarily the office or position to which such officer was elected or appointed. All such appointees shall hold the office or position which they are temporarily to fill during the absence of the officer in the military service or until the expiration of the term for which such officer in the military service was elected or appointed, whichever period of time is the shorter.

S.C. Code Ann. § 8-7-40. Section 8-7-10(3) of the South Carolina Code (1986) states "the appointive authority'' means (a) the person, board, commission or other authority originally electing or appointing the officer, (b) if the officer was elected to his office in a general election or nominated in a primary, the Governor of the State, with the advice and consent of the Senate, ifthe officer

Mr. Starr
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May8, 2006
is a State official or employee, (c) the Governor, upon the recommendation of the county legislative delegation, if the officer is an official or employee of a county or any of its political subdivisions and (d) the Governor, upon the recommendation of the mayor and city council or other governing body of a city or town if the officer is an official or employee of a municipality.

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In a prior opinion of this Office, we determined that section 8-7-40 requires the appointive authority to appoint someone to fill the officer's temporary vacancy. Op. S.C. Atty. Gen., October 31, 2005. Additionally, we concluded: "the appointee holds the position during the absence of the officer in military service or until the regular expiration of the term of office for that position, whichever term is shorter." Id. As we previously stated, the commissioners are appointed by the Governor upon the recommendation of a majority of the Berkeley County Legislative Delegation. Thus, we presume the Governor is charged with the duty of appointing a temporary appointee to fulfill the commissioner's term until he returns or until his term expires.

Very truly yours,

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

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Robert D. Cook
Assistant Deputy Attorney General