Could a South Carolina municipal election commissioner chair a candidate's campaign?

Plain-English summary

In 1999, the South Carolina Attorney General's office said a municipal election commissioner serving as a volunteer chair of a State House candidate's campaign appeared to participate in a political campaign, contrary to § 7-13-75. It would not make the final factual finding and deferred that question to Aiken City Council.

The statute made a violating member subject to removal by the Governor or appropriate appointing authority. The office read that language as allowing, rather than requiring, city council to remove the commissioner if the facts warranted it. It said removal was the only sanction expressly stated, and argued that removal power might include suspension pending resolution of charges. It cautioned that the suspension conclusion was not free from doubt. The letter was expressly informal.

Currency note

This opinion was issued in 1999. 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 volunteering instead of being paid avoid the campaign ban? A: The opinion said a volunteer campaign chair appeared to take part in political management or a campaign. It left the final finding on the commissioner's conduct to city council.

Was removal mandatory if the commissioner violated the ban? A: No. The office read “subjects the member to removal” as giving the appointing authority discretion to remove when the facts warranted it.

Could council suspend the commissioner?
A: The office reasoned that a power to remove could imply a power to suspend pending charges, but warned that this conclusion was uncertain.

Background and statutory framework

Aiken's city attorney asked whether a municipal election commissioner violated § 7-13-75 by chairing a State House campaign and what sanctions were available. The opinion analyzed the statute's campaign restriction and removal clause, identified the municipal governing body as the appointing authority, and declined to resolve the facts itself.

Citations and references

The opinion quoted § 7-13-75 and cited § 5-15-90 on municipal election commissioners.

Official title

Informing that a City of Aiken municipal election commissioner served as a volunteer campaign chairman for a candidate for the State House of Representatives.

Requester

Gary H. Smith, III, Esquire, Aiken City Attorney

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-21-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99oct-21-smith.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE C O NDON
ATTORNE Y GENERAL

October 21, 1999

Gary H. Smith, III, Esquire
Aiken City Attorney
Post Office Box 519
Aiken, South Carolina 29802

RE:

Informal Opinion

Dear Mr. Smith:

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You have informed this Office that a City of Aiken municipal election commissioner served as a volunteer campaign chairman for a candidate for the State House of Representatives. The other candidate in the race brought this matter to the City's attention, alleged the commissioner's conduct violated S.C. Code Ann.§ 7-13-75 andasked that action be taken by the city council on the matter. You have asked whether the municipal election commissioner violated S.C. Code Ann. § 7-13-75 by volunteering for the candidate' s campaign. If the answer is yes, you ask whether removal is the only appropriate sanction or if there are other appropriate sanctions. Section 7-13-7 5 of the Code provides as follows : No member of a county or municipal election commission, voter registration board, or combined election and voter registration commission may participate in political management or in a political campaign during the member' s term of office. No member may make a contribution to a candidate or knowingly attend a fundraiser held for the benefit of a candidate over whose election the member has jurisdiction. Violation of this section subjects the member to removal by the Governor or appropriate appointive authority. When interpreting a statute, a court must apply the clear and unambiguous terms of a statute according to their literal meaning. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 ( 1991 ). The words of a statute must be given their plain and ordinary meaning without

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Mr. Smith
Page 2
October 21. 1999
resort to subtle or forced construction to limit or expand the statute's operation. Brvant v. City of Columbia. 295 S.C. 408, 368 S.E.2d 899 (1988). The American Heritage Dictionary (3rd ed. 1993) defines "participate" as meaning to take part in something or to share in something. See also 31 Words and Phrases 227 (1957). Section 7-13-7 5 provides''[ n]o member of a county or municipal election commission, voter registration board, or combined election and voter registration commission may participate in political management or in a political campaign during the member's term of office." On its face, it would appear a member of a municipal election commission serving as a volunteer campaign chairman of a political campaign would be taking part in political management or in a political campaign during the member's term of office thus violating the statute. However, the particular facts of this case must be reviewed before reaching a final decision. As this Office is not authorized to make factual determinations in a legal opinion, we must defer to the city council's judgment in this matter. Ifa member of a municipal election commission participates in political management or in a political campaign during the member's term of office, Section 7-13-75 authorizes the removal of the member. Specifically, "[v]iolation of this section subjects the member to removal by the Governor or appropriate appointive authority." Here, the appropriate appointive authority is the municipal governing body. S.C. Code Ann. § 5-15-90. Generally, when the word "subjects" is used in regards to a penalty, it is being used in a qualified sense of being liable or exposed to penalty, and not in the sense of being absolutely penalized. Blackshear Mfg. Co. v. Talmadge, 161 S.E. 256 (Ga. 1931 ); The Motorboat, 53 F .2d 23 9 ( 1931 ). Thus, the municipal governing body is not required to remove the member of the municipal election commission, but has the discretion to do so if the facts warrant removal.

The only sanction specifically authorized by Section 7-13-75 is a member violating the statute is subject to removal. A cardinal rule of statutory construction is "expressio uni us est exclusio alterius" or ''the enumeration of particular things excludes the idea of something else not mentioned." Pennsylvania National Mutual Casualtv Insurance Company v. Parker, 282 S.C. 546, 320 S.E.2d 458 (1984). As the General Assembly has only enumerated potential removal as punishment for committing the prohibited acts, it would appear removal, and possibly those powers implied from removal, would be the only appropriate sanction. This Office has previously concluded the power to remove implies the power to suspend. Ops. Atty. Gen. dated September 27, 1989 and March 30, 1983. This conclusion is based on general law found in 67 C.J.S. Officers l 08(a) which provides:

Mr. Smith
Page 3
October 21, 1999
[w ]here the power of removal is limited to cause, the power to suspend, made use of as a disciplinary power pending charges, has been regarded as included within the power of removal, and it has been stated that the power to suspend is an incident to the power to remove for cause, and, according to some authorities, the power to remove necessarily includes the power to suspend.

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In general, if an officer is appointed for a set term, as is the case with municipal election commissioners, there must exist good cause to remove the officer. 1 State ex rel. Williamson v. Wannamaker, 213 S.C. 1, 48 S.E.2d 601 (1948); QQ. Any. Gen. dated December 10, 1997. The General Assembly has determined the prohibited conduct found in Section 7-13-75 is cause for removal. Thus, it may be argued that the municipal governing body has the power to suspend the municipal election commissioner pending resolution of the charges. However, in light of Rose v. Beasley, 327 S.C. 197, 489 S.E.2d 625 ( 1997), I would caution that this conclusion is not free from doubt. This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With best personal regards, I am Sincerely yours,

a4t:J
Paul M. Koch
Assistant Attorney General

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' The terms of members of a municipal election commission shall be six years except of those first appointed one shall serve a term of four years and one a term of two years. S.C. Code Ann. § 5-15-90.