Did South Carolina Advisory Council on Aging members need Secretary of State commissions?

Plain-English summary

In 2010, South Carolina's lieutenant governor asked whether his appointees to the Advisory Council on Aging needed commissions from the Secretary of State. The AG said they did. The statute creating the council did not expressly require commissions, but the AG read it with broader constitutional and statutory rules on entering public office. Its conclusion stated that council members “must be commissioned by the Secretary of State upon their appointment by the Lieutenant Governor.”

The opinion treated the council appointment as a public-office appointment subject to the oath and commission framework. It cited the constitution's direction that the Governor commission state officers and that commissions be countersigned by the Secretary of State.

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

Did the council statute itself say members must receive commissions? A: No. The AG said the council provision had no express commission clause, then applied general public-office rules to reach its answer.

Who appointed the council members?
A: Under the statute quoted in the opinion, the lieutenant governor appointed members from nominations sent to the Division on Aging director.

What role did the Secretary of State have?
A: The opinion described the Secretary of State's role in issuing or countersigning commission documents after the required oath, based on the constitutional text and prior AG opinions it cited.

Background and statutory framework

The AG read the council's authorizing statute alongside the rule barring a person from assuming a public office before taking the constitutional oath and being regularly commissioned. It also relied on constitutional provisions requiring oaths for public officers and commissions for state officers. The opinion did not address whether later restructuring of aging services changed the council or appointment process.

Citations and references

The opinion discussed South Carolina Code sections 43-21-10 and 8-3-10, article VI, sections 4 and 6 of the state constitution, and earlier AG opinions on commissioning appointees.

Official title

Questioning whether the members of the South Carolina Advisory Council on Aging must be commissioned by the Secretary of State upon their appointment by the Lieutenant Governor.

Requester

The Honorable Andre Bauer, Lieutenant Governor, State of South Carolina

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-3-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/bauer-a-os-9169-11-3-10-sc-advisory-council-on-aging.pdf

Original opinion text

HENRY McMASTER
A TIORNBY G ENERAL

November 3, 2010

The Honorable Andre Bauer
Lieutenant Governor
State of South Carolina
P. 0. Box 142
Cohnnbia, South Carolina 29202
Dear Lieutenant Governor Bauer:
In a letter to this office you questioned whether the members of the South Carolina Advisory Council on Aging must be commissioned by the Secretary of State upon their appointment by the Lieutenant Governor.

S.C. Code Ann. § 43-21-10 states that
[t]here is created in the Office of the Lieutenant Governor, the Division of Aging. The division must be supported by the Advisory Council on Aging consisting ofone member from each of the ten planning and service areas under the Division on Aging and five members from the State at large. The director ofthe division shall provide statewide notice that nominations may be submitted to the director from which the Lieutenant Governor shall appoint the members of the council.. .. There is no express provision regarding members of the Advisory Council being commissioned by the Secretary of State. However, S.C. Code Ann. § 8-3-10 provides that
[i]t shall be unlawful for any person to assume the duties of any public office until he has taken the oath provided by the Constitution and been regularly commissioned by the Governor. Article VI, Section 4 of the State Constitution sets forth that " ...all..officers of the State and its political subdivisions, before entering upon the duties of their respective offices, shall take and subscribe the oath of office...." Article VI, Section 6 of the State Constitution states that

REMBERT c. DENNIS BUil.DINO • POST OPFICE Box 11549 • COLUMBIA, SC 292ll·1549 • Tu!.EPHONB 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Andre Bauer
Page2
November 3, 2010

[t]he Governor shall commission all officers of the State. All commissions shall be issued in the name and by the authority of the State of South Carolina, sealed with the Great Seal, signed by the Governor, and countersigned by the Secretary of State.... See also: Op. Atty. Gen. dated March 10, 1993 (" ... members would subscribe an oath when they receive documents relative to their appointment from the Secretary of State, who would issue their commissions upon receipt of the document containing the oath."); Op. Atty. Gen. dated September 6, 1989 ("[a]II appointments made by a governor are transmitted to the Secretary of State, who sends an oath of office form to appointees and issues commissions to appointees when the oath has been taken."); Op. Atty. Gen. dated November 18, 1977 ("[t]he general statement of the law concerning the effective date of an appointed office is that the office holder legally assumes his position only after he has been validly commissioned into the office."). Consistent with the above, in the opinion of this office, the members ofthe South Carolina Advisory Council on Aging must be commissioned by the Secretary of State upon their appointment by the Lieutenant Governor. Very truly yours, Henry McMaster Attorney General

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By:

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General