Could Irmo’s council vote to remove one of its elected members from a meeting in 2015?

Plain-English summary

Irmo's police chief asked whether town council could vote to remove one of its elected members and, if it could, direct someone to carry out that removal. In this November 2015 opinion, the Attorney General said council lacked power to summarily remove a member from office or attendance at a meeting without cause. It based that answer on an elected member's fixed term and right to attend meetings. It did not give an affirmative answer on ordering someone to enforce removal.

Later development: On May 31 of the following year, the AG modified a similar an earlier April opinion opinion on Irmo council meeting removal, concluding that municipal councils likely had inherent legislative authority to remove a member from a meeting, subject to constitutional limits. That later position affects how a reader should understand this November answer about meeting attendance; removal from office remained a separate question.

Currency note

This opinion was issued in 2015. 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: What did the November 2015 opinion say about removing a council member without cause?
A: It said council could not summarily remove an elected member from office or attendance at a meeting on that basis.

Q: Did it decide who could enforce a removal?
A: No. Its answer rested on finding no summary removal authority on the facts described.

Q: Did the AG later change its position on removal from a meeting?
A: Yes. A the later May opinion opinion modified an the earlier April opinion opinion addressing that issue and predicted that councils likely had inherent authority to remove a member from a meeting, with constitutional limits.

Background and statutory framework

The 2015 opinion referred to the fixed term of an elected council member, the right of deliberative-body members to attend meetings, and grounds for forfeiture of municipal office. It discussed cause for removal but declined to define every case of cause. The later the later May opinion opinion addressed a council's legislative authority to maintain order at meetings.

Citations and references

• The 2015 AG wrote that council did not have authority to “summarily remove a fellow councilmember, either from office or attendance at a meeting, absent the existence of cause.”
• Later AG opinion: Later May opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-16-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/11/Nates-J.-OS-9984-FINAL-Opinion-11-16-2015-00799429xD2C78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

November 16, 2015

The Honorable Joe Nates

Chief of Police, Irmo Police Department
P.O. Box 406

Irmo, SC 29063-0406

Dear Chief Nates:

We are in receipt of your opinion request concerning the authority of town council to have an elected member of council removed by vote. Specifically, you ask: (1) whether town council possesses “the legal authority to have an elected council member of that council removed by vote?” and (2) if so, whether council po: s “the authority to order someone to remove the voted-out member of council?” Our response follows.

Law/Analy

Your question requires us to review council's authority to swnmarily remove one of its members; particularly, whether town council, as a statutorily-created deliberative body, possesses the authority to remove a fellow councilmember from a meeting via a vote. We believe it does not possess such a power.

In a prior opinion we advised that an officeholder has a “right to hold office during a fixed term.” Op. S.C. Att'y Gen., 2007 WL 655614 (February 2, 2007). Continuing, we explained that absent “an unequivocal grant of power from the Legislature to remove at pleasure,” summary removal of an officeholder is unauthorized and, as a result, he or she may only be removed for cause.! Op. S.C. Att'y Gen., 2007 WL 655614 (February 2, 2007).

Moreover, we have acknowledged that members of a deliberative body also possess a right to be present at meetings. Op. S.C. Att'y Gen., 1989 WL 406144 (May 2, 1989). This is supported by Section 5-7-250(C)’s requirement that meetings of a deliberative body must comply with the requirements of the Freedom of Information Act (“FOIA”)—particularly

FOIA’s notice requirements. Op. S.C. Att'y Gen., 1989 WL 406144 (May 2, 1989).

In light of these rights, we believe council does not possess the authority to summarily remove a fellow councilmember, either from office or attendance at a meeting, absent the

' Pursuant to the terms of Section 5-15-40, councilmembers clearly hold office for a fixed term. See S.C. Code Ann.
§ 5-15-40 (2004) (establishing that a mayor and councilmen “shall be elected for terms of two or four years”).

REMBERTC, DENNIS BUILDING © POST OFFICE BOX 11549 © COLUMBIA, SC 29211-1549 © TELEPHONE 803-734-3970» FACSIMILE 803-253-6283

The Honorable Joe Nates
Page 2
November 16, 2015

existence of cause.” Indeed, to do so would be to ignore not only the recognized rights of officeholders, but also the representational interests of their constituents.

Sincerely,

LEA”

Brendan McDonald
Assistant Attorney General

REVIEWED AND APPROVED BY:

Yobert D. Cook
Solicitor General

• While we decline to describe what constitutes “cause” in every case, we note that the Legislature has codified
  “cause,” for purposes of a councilmember’s forfeiture of office, in Section 5-7-200 of the Code. See S.C. Code Ann. § 5-7-200 (explaining a mayor or councilman forfeits his office only where one or more of the following occur: (1) the member “lacks at any time during his term of office any qualification for the office prescribed by the general law and the Constitution; (2) violates any express prohibition of Chapters | to 17; or (3) is convicted of a crime involving moral turpitude.”). Likewise, while perhaps not all-encompassing, we believe an example of “cause” for purposes of an officer forfeiting his or her right to attendance at a meeting would be a breach of the peace, which in the context of the common law, may encompass “all criminal offenses.” See e.g., Op. S.C. Att'y Gen., 2015 WL 1881429 (April 17, 2015) (discussing cases interpreting the phrase “breach of the peace” and finding this include “all criminal offense.”). More broadly speaking, and as we have previously advised:

[clause is a flexible concept that relates to an employee's qualifications and implicates the public interest; cause for discharge has been defined as some substantial shortcoming that renders the person’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public policy recognizes as good cause for no longer holding the position; or, as sometimes stated, dismissal for cause is appropriate when an employee's conduct affects his or her ability and fitness to perform his or her duties. The phrase for cause in

this connection means for reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely cause which the appointing power in the exercise of discretion may deem sufficient. Relatively minor acts of misconduct are insufficient to warrant removal or discharge for cause. The cause must relate to and affect qualifications appropriate to the office, or employment, or its administration, and must be restricted to something

of a substantial nature directly affecting the rights and interests of the public. Neglect of duty, inefficiency, and the good faith abolition of a position for valid reasons are all legally sufficient causes for removal.

Op. S.C. Att’y Gen., 2005 WL 1609288 (June 27, 2005) (quoting C.J.S. Officers & Employees, § 183 (1997)).