Could an active-duty service member be appointed county veterans affairs officer in South Carolina?

Plain-English summary

A senator asked about an Edgefield County veterans affairs officer vacancy. The county legislative delegation had recommended an active-duty Army member after comparing veteran and nonveteran candidates, but the state director declined to appoint that person. The Attorney General concluded in 2015 that a person who did not meet the appointment statute's definition of “veteran,” including an active-duty member who had not been discharged or released, was a nonveteran for that statute. The opinion expressly limited this classification to the statute; it did not purport to determine military status for other purposes.

The AG also said the county delegation, rather than the director, judged comparative qualifications. If it found the nonveteran more qualified than the veterans considered and made the required recommendation, the statute's “shall appoint” language made the director's duty mandatory. The opinion also noted separate officeholder qualifications, including elector residency, that could apply to the candidate.

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: Did active duty itself make an applicant a statutory veteran?
A: No. The 2015 statutory definition required discharge or release under the conditions stated in the opinion; a person outside that definition was treated as a nonveteran for the appointment provision.

Q: Could the delegation recommend a nonveteran over a veteran?
A: Yes, if the delegation determined the nonveteran was more qualified than the veteran candidates it considered.

Q: Could the director reject that recommendation to choose a veteran instead?
A: The AG said no. It read the appointment duty as mandatory once the delegation made a qualifying recommendation.

Q: Did the appointment rule displace other officeholder qualifications?
A: No. The opinion discussed additional constitutional qualifications, including residency, for an officeholder.

Background and statutory framework

The opinion read the 2015 veteran definition and appointment process together. It treated the statutory nonveteran exception as meaningful rather than surplusage, and relied on earlier AG analysis that the director's role was to appoint the delegation's choice, not select a different candidate. Its answer was tied to the law as it stood in 2015.

Citations and references

• The AG wrote that “anyone not listed within the statutory definition of ‘veteran’ within this statute would be a nonveteran by default.”
• It said the director “must appoint the delegation's recommendation” when the statutory qualifications process had been followed.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-13-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/10/Massey-S.-OS-9962-FINAL-Opinion-10-13-2015-00773126xD2C78.pdf

Original opinion text

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Alan Wilson
Attorney General

October 13. 2015

The Honorable Shane Massey
Senator. District No. 25
P.O. Box 142

Columbia, SC 29202
Dear Senator Massey:

Attorney General Alan Wilson has referred your letter dated September 17. 2015 to the Opinions section

for a response. The following is this Office's understanding of your question and our opinion based on that understanding. Issues (as quoted from your letter):

1)

Whether a person currently serving on active duty in the United Slates military is a "nonveteran " per [S.C. Code Section 25-1 1-40 regarding the appointment of county veterans' affairs officersJ and ifso,

2)

whether the Director of the Division of Veterans Affairs (the "Director") can refuse to appoint the county legislative delegation 's recommendation

of a nonveteran candidate

after the

delegation has considered veteran and nonveteran candidates.
Specifically, the statute's [S.C. Code Section 25-1 1 -AO] relevant subsections state: A.

For the purpose of this section, "veteran " means a person who served on active duty for a period of more than one hundred eighty days and was discharged or released from such active duty with an honorable discharge or. if one hundred eighty days or less, was discharged or released from service active duty because of service-connected disability.

B.

Subject to the recommendation of a majority of the Senators representing the county and a majority of the House members representing the county, the Director of the Division of Veterans Affairs shall appoint a county veterans affairs officer for each county in the

State, whose term of office shall begin July first of each odd-numbered year and shall continue for a term of two years and until a successor shall be appointed. A county veterans affairs officer must be a qualified veteran who served on active dutyfor a period of more than one hundred eighty days and was discharged or released from such active duty with an honorable discharge or. if one hundred eighty days or less, was discharged

or released from such active duty because of a service-connected disability: otherwise, a county veterans affairs officer may be a qualified nonveteran, if any veteran being considered for the post is not as qualified as a nonveteran being consideredfor the post. Qualifications shall be determined by the county legislative delegation upon a majority vote of the Senators representing the county and a majority of the House members representing the county. A county veterans affairs officer is subject to removal for cause

at any time by a majority of the Senators representing the county and a majority of the House members representing the county.

Rembert C.Dennis Building

• Post Office box 11549 . colvmbia.SC 292 1 1-1549 • Telephone 803-734-3970 . facsimile 803-253-6283

The Honorable Shane Massey
Page 2

October 13, 2015

Edgefield County is currently seeking to fill a vacancy for a county veterans affairs officer. Out of a group of thirteen potential candidates, including veterans and nonveterans, the county legislative delegation evaluated the candidates' qualifications and unanimously selected an individual who is on

active duty with the United States Army as the most qualified candidate. The delegation then made the required recommendation to the Director for appointment.

The Director refused to appoint the

delegation's recommended candidate because the Director believes (I) the candidate is neither a veteran nor a nonveteran since he is on active duty and (2) a nonveteran cannot be appointed if there is a

qualified veteran availablefor appointment. I believe these to be incorrect interpretations ofthe statute. I understand the statute to create two categories of candidates: veterans and nonveterans.

Therefore, it

appears that a candidate who does not meet the definition of "veteran" in § 25-1 I-40(A) must be a "nonveteran." Additionally, it seems clear to me that the appointment procedure in § 25-11-40(8) authorizes the legislative delegation to determine the qualifications for the position and to select a nonveteran if the delegation finds the nonveteran to be more qualified for the post than any veteran

candidate. I see no statutory basisfor the Director to reject a recommendation made by the delegation. Short Answers: 1)

Any person who does meet the statutory definition of "veteran" in the context of S.C. Code § 25

2)

When the county legislative delegation makes a recommendation for the county veterans' affairs

1 1-40 must by default be a nonveteran.1
officer pursuant to S.C. Code § 25-11-40 after considering the qualifications pursuant to the statute, even when the delegation recommends a nonveteran candidate over a veteran candidate

(as long as the delegation determines that the nonveteran candidate is more qualified), the

Director must appoint the delegation's recommendation as the county veterans' affairs officer. Law/Analysis:

As a background regarding statutory interpretation, the cardinal rule of statutory construction is to ascertain the intent of the Legislature and to accomplish that intent. Hawkins v. Bruno Yacht Sales. Inc.. 353 S.C. 31, 39, 577 S.E.2d 202, 207 (2003). The true aim and intention of the Legislature controls the literal meaning of a statute. Greenville Baseball v. Bearden. 200 S.C. 363, 20 S.E.2d 813 (1942). The

historical background and circumstances at the time a statute was passed can be used to assist in interpreting a statute. Id. An entire statute's interpretation must be "practical, reasonable, and fair" and consistent with the purpose, plan and reasoning behind its making. Id. at 816. Statutes are to be interpreted with a "sensible construction," and a "literal application of language which leads to absurd consequences should be avoided whenever a reasonable application can be given consistent with the legislative purpose." U.S. v. Rippetoe. 178 F.2d 735, 737 (4th Cir. 1950). Like a court, this Office looks at the plain meaning of the words, rather than analyzing statutes within the same subject matter when the meaning of the statute appears to be clear and unambiguous. Sloan v. SC Board of Physical Therapy Exam.. 370 S.C. 452, 636 S.E.2d 598 (2006). The dominant factor concerning statutoiy construction is the intent of the legislature, not the language used. Spartanburg Sanitary Sewer Dist. v. Citv of Spartanburg. 283 S.C. 67, 321 S.E.2d 258 (1984) (citing Abell v. Bell. 229 S.C. 1, 91 S.E.2d 548 (1956)).

Therefore, let us look to the legislative intent of the statute in your questions. Regarding the Office of the Veteran's Affairs within the Governor's Office, South Carolina Code § 25-1 1-10 states that:

1 This interpretation has no intention to transfer any status of a veteran or nonveteran for military purposes or otherwise but is limited to the interpretation of this statute in this legal opinion.

The Honorable Shane Massey
Page 3

October 13, 2015

A Division of Veterans' Affairs in the Office of the Governor is hereby created for the purpose of assisting ex-servicemen in securing the benefits to which they are

entitled under the provisions of federal legislation and under the terms of insurance

policies issued by the federal government for their benefit. This division shall be under the direct supervision of a panel consisting of the Governor as chairman, the

Attorney General for the purpose of giving legal advice, and the Adjutant and Inspector General.

S.C. Code § 25-11-10. It appears from a plain reading of the statute, the Veterans' Affairs Division within the South Carolina Governor's Office was created to help "ex-servicemen" get federal benefits for which they qualify.

In regards to the relationship between the Director and the county veterans' affairs

officers, the law directs the Director to "maintain contact and close cooperation ... provide assistance,

advice and instructions" and may even require reports from county veterans' affairs officers.2 S.C. Code § 25-11-50. Thus, looking at your first question of whether someone in active duty in the United States military is a "nonveteran" per S.C. Code Section 25-11-40 regarding the appointment of county veterans' affairs officers, let us examine the statute. The statute defines a veteran as "a person who served on active duty

for a period of more than one hundred eighty days and was discharged or released from such active duty with an honorable discharge or, if one hundred eighty days or less, was discharged or released from

service active duty because of service-connected disability," but does not define a "nonveteran." S.C.

Code § 25-1 1-40. The rule of statutory construction known as "expressio unius est exclusio alterins " or "inclusio unius est exclusio alterius" meaning "to express or include one thing implies the exclusion of another, or of the alternative" would apply here. See, e.g.. Op. S.C. Att'v Gen.. 2013 WL 5763370 (October 10, 2013); 2005 WL 1024601 (April 29, 2005) (citing Hodges v. Rainev. 341 S.C. at 86, 533

S.E.2d at 582 (2000)). Utilizing this rule of statutory construction, anyone not listed within the statutory definition of "veteran" within this statute would be a nonveteran by default.

In regards to your second question, this Office has previously opined that the Director of the Division of Veterans Affairs may only appoint the officer chosen by the Legislative delegation and does not have the authority to select the candidate of his own choosing. Op. S.C. Att'v Gen.. 1977 WL 24683 (November I, 1977) fciting Bradford v. Bvrnes. 221 S.C. 255, 70 S.E.2d 226 (1952); Brown v. Smith. 188 S.C. 75, 198 S.E.2d 184 (1938); Op. S.C. Att'v Gen.. 1984 WL 249853 (April 11, 1984)). The statute clearly reads that "fsfubiect to the recommendation of a majority of the Senators representing the county and a majority of the House members representing the county, the Director of the Division of Veterans Affairs shall appoint a county veterans affairs officer for each county in the State." S.C. Code § 25-1 1-40 (emphasis added). The use of the word "shall" is indicative of a mandatory, not a discretionary requirement by the

Legislature. Collins v. Doe. 352 S.C. 462, 574 S.E.2d 739 (2002). In the context that the Director is serving a mandatory duty prescribed by statute where he is bound by the recommendation of the Legislators, the Director is performing more of a ministerial duty except where there is no recommendation by the Legislators. Moreover, the statute is clear in stating that "a county veterans affairs officer may be a qualified nonveteran, if any veteran being considered for the post is not as qualified as a nonveteran being considered for the post" and leaves the county legislative delegation in charge of making the qualification determinations. S.C. Code § 25-1 1-40. Conversely, your letter seems to indicate the statute is being interpreted to read that "a county veterans affairs office must be a qualified

2 Please note 2015 S.C. House Bill 3776 was introduced concerning the Director and reports from the county veterans' affairs officers.

The Honorable Shane Massey
Page 4
October 13,2015

veteran" and seems to stop there. As we stated concerning statutory construction, the statute must be read in its context.

The definition of a "veteran" is clearly defined in paragraph (A) and again is repeated in

the requirements in paragraph (B) of the statute as a limitation on who qualifies as a "veteran." Id. There would be no need to have the exception in paragraph (B) to allow a qualified nonveteran where the

nonveteran is more qualified than the "veteran" if only a "veteran" could be appointed.

Thus, we will

apply the principle that the Legislature did not intend to do a futile thing by including the language allowing the appointment of a nonveteran who was more qualified than a veteran. See Op. S.C. Att'v Gen.. 1984 WL 159859 (May 9, 1984) (citing St. ex rel. Mcl.eod v. Montgomery. 244 S.C. 308. 136

S.E.2d 778(1964)).

'

Please also note that this Office has previously opined that a county veterans' affairs officer would be

considered an office of honor or profit with sovereign power of the State pursuant to the South Carolina Constitution Article XVII, Section I. See Op. S.C. Att'v Gen.. 2010 WL 3505054 (August 2, 20 1 0)."' That would also mean that in order to hold an office, a court would likely find the candidate must meet the requirements of an officeholder (which entails having the qualifications of an elector including residency) in addition to the qualifications set by the county legislative delegation, even where the

position is not an office for dual office holding purposes. S.C. Const, art. XVII § 1.

This Office made

such a conclusion regarding residency for a county veterans' affairs officer in a previous opinion. See Op. S.C. Att'v Gen.. 2010 WL 3505054 (August 2, 2010). Conclusion:

For all the above reasons, this Office agrees with your interpretation of the statute.

However, this Office is only issuing a legal opinion based on the current law at this time. Until a court or the Legislature specifically addresses the issues presented in your letter, this is only an opinion on how

this Office believes a court would interpret the law in the matter. Additionally, you may also petition the court

for a declarator)' judgment, as only a court of law can

determinations. S.C. Code § 15-53-20.

interpret statutes and

make such

If it is later determined otherwise or if you have any additional

questions or issues, please let us know.

Sincerely,

Anita S. Fair
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Solicitor General

¦' However, this Office has also previously opined that a county veterans affairs officer would not be an office for

dual office purposes, as it is specifically exempted in S.C. Code § 8-1-130. Op. S.C. Att'v Gen.. 2006 WL 981699 (March 17. 2006).