What happens to a South Carolina commissioner whose six-month holdover period expires before a successor is appointed, and can their votes still count?

Plain-English summary

Members of the South Carolina Aeronautics Commission serve four-year terms and may hold over for up to six months while a successor is appointed. A budget proviso (Proviso 87.7 in the 2025-26 Appropriations Act) would have suspended that six-month cap, but Governor McMaster vetoed it.

That left the Commission chairman with concrete questions: a commissioner already past the six-month limit, two more whose holdover would expire on August 15, 2025, and a fourth seat already empty after a resignation. The AG worked through the de jure / de facto officer distinction and answered five questions:

1. A commissioner past the six-month holdover is now a de facto officer, the seat is legally vacant and should be filled, but every official act they took in the interim is valid.
2. The two whose terms expire August 15, 2025 are de jure officers until that date and de facto thereafter; their seats become vacant and subject to filling on August 15 (the opinion says "August 25" once but the surrounding text and statute consistently point to August 15 as the holdover endpoint).
3. De facto officers are entitled to "emoluments of office," which clearly includes travel reimbursement. Whether DMV commissioner license tags or paid attendance at conferences count as emoluments is unsettled and the AG had no precedent on point.
4. De facto officers can be counted toward a quorum under prior AG opinions and case law from neighboring states.
5. The July meeting at which a holdover commissioner voted is valid, because de facto acts bind the public until a court says otherwise.

What this means for you

If you sit on a South Carolina state commission and your term has expired

You are still in office until your successor is appointed and qualified. After six months you slide from de jure to de facto status, but the practical answer is simple: keep showing up, keep voting, keep getting reimbursed for travel. Just understand that a court could later remove you, that the seat is technically vacant, and that the appointing authority should be filling it. Push the appointing authority to act.

If you appoint commissioners (the Governor, a legislative caucus, a constitutional officer)

Stop relying on the holdover-past-six-months pattern. The AG opinion now publicly says that seat is vacant. You can be sued to compel an appointment, and any later challenge to a commission decision can drag in the question whether the panel was properly constituted. If you hold the appointment power, exercise it within the holdover window.

If you serve on a small commission (fewer than ten seats) and several seats are empty

Read this opinion carefully on quorum. The AG concludes a de facto officer counts toward a quorum, so a commission with several holdover-past-six-months members can still meet and conduct business. But pair that with sound minute-keeping: record exactly who attended, when each member's term technically expired, and what business was transacted. If a court later voids those acts, your minutes are the audit trail that determines what gets unwound.

If you contract with a state commission

Contracts entered by a board operating with de facto members are valid until a court says otherwise. You are not at risk just because a member's term has formally expired. But if the board is genuinely deadlocked because of vacancies, your contract approval can stall, that is a project-management risk to manage through your relationship with the commission, not a legal-validity risk.

If you are a state legislator considering whether to override the veto

This is exactly the issue Proviso 87.7 was meant to solve: an appointing authority that does not act within the six-month window leaves a commission in legal twilight. If you want commissions to function smoothly through long appointment delays, the legislature can either re-pass the proviso, override the veto, or amend the underlying statute (§ 13-1-1050(A)) to extend the holdover period.

Common questions

Q: What is the difference between a de jure and a de facto officer?
A: A de jure officer is in office regularly and legally and exercises the duties as of right. A de facto officer is in possession of the office under "color of authority", they look like the officer to the world, and they are doing the job, but their legal claim to the seat has lapsed. The crucial point: courts treat their official acts as valid as to the public and third parties until a court formally declares otherwise.

Q: Are de facto officers paid?
A: Yes for emoluments tied to "compensation for services," like salary or travel reimbursement (per Elledge v. Wharton). The AG flagged commissioner DMV tags and conference attendance reimbursements as a "gray area" because there is no SC precedent on whether those count as emoluments. If you are a holdover commissioner, you can claim travel reimbursement with confidence; the others depend on your commission's internal policy and the appointing authority's tolerance.

Q: If a holdover commissioner's vote was the deciding vote, is the decision still valid?
A: Yes, until challenged. Acts of a de facto officer are binding "as valid and effectual as those actions taken by an officer de jure unless or until a court would declare such acts void or remove the de facto officer from office." So the action stands now; if a litigant later persuades a court to remove the officer, the court might or might not unwind the past decision.

Q: Why didn't the proviso just become law?
A: The General Assembly passed Proviso 87.7 as part of the appropriations act, Governor McMaster vetoed it, and the legislature would not address the veto until the next session in January. So the six-month cap remained in effect for fiscal year 2025-26.

Q: Can a smaller "panel" of the board meet to conduct business?
A: For panels generally, the answer depends on the commission's enabling statute. The Aeronautics statute does not explicitly authorize panels for general business; it just authorizes the full commission. If your enabling statute does authorize three-member or five-member panels, follow it. The AG opinion on the SC Board of Paroles and Pardons (issued the day before this one) addresses panel authority for that specific board.

Background and statutory framework

The South Carolina Aeronautics Commission is created by Title 13, Chapter 1 of the Code. Section 13-1-1050(A) sets a four-year term ending February 15, with a hard six-month holdover cap "after the first term or second term." That cap is unusual; most South Carolina boards let members hold over indefinitely until a successor qualifies. The legislature picked the short cap to force timely appointments and prevent a governor or appointing caucus from leaving a seat filled by a lame-duck holdover.

Proviso 87.7 in the 2025-26 Appropriations Act would have suspended the six-month cap for that fiscal year. Governor McMaster vetoed the proviso, the legislature did not override before recess, and the issue ripened: what happens to commissioners whose six months are up?

The de jure / de facto framework dates back to Heyward v. Long (S.C. 1936) and the cases the AG opinion strings together. The key idea is that you protect the public from chaos: when an officer's title has lapsed but they are still functioning openly as the officer, third parties dealing with them in good faith are not penalized. A long line of cases, including Bradford v. Byrnes (S.C. 1952) and State v. Messervy (S.C. 1910), has applied the de facto doctrine to keep contracts, judgments, and administrative actions standing.

Citations and references

Statutes:
- S.C. Code Ann. § 13-1-1050(A) (Aeronautics Commission terms and six-month holdover limit)

Cases:
- Heyward v. Long, 178 S.C. 351, 183 S.E. 145 (1936) (defining de facto officer doctrine)
- Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952) (de facto officer's acts valid against the public)
- Smith v. City Council of Charleston, 198 S.C. 313, 17 S.E.2d 860 (1941) (de facto officer recognition)
- State v. Messervy, 86 S.C. 503, 68 S.E. 766 (1910) (presumptive or apparent right plus actual use)
- Elledge v. Wharton, 89 S.C. 113, 71 S.E. 657 (1911) (de facto officer entitled to emoluments of office)

Earlier AG opinions referenced:
- Op. S.C. Att'y Gen., 2003 WL 21471510 (June 5, 2003) (commissioner past six-month holdover is de facto; seat vacant)
- Op. S.C. Att'y Gen., 2011 WL 380158 (January 14, 2011) (de jure / de facto framework)
- Op. S.C. Att'y Gen., 2023 WL 5829051 (August 30, 2023) (de facto member counts toward quorum)
- Op. S.C. Att'y Gen., October 14, 1998 (de facto officer definition)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-proviso-87-7-commissioner-holdover-time-limit-exclusion-part-of-the-2025-26-appropriations-act/
• Original PDF: https://www.scag.gov/media/x5bjkm2c/ganttd-os-11053-final-opinion-7-29-2025.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

July 29, 2025

The Honorable Delphin A. Gantt, Jr.
Chairman, At-Large
SC Aeronautics Commission
2553 Airport Blvd.
West Columbia, SC 29170-2142

Dear Chairman Gantt:

You reference Proviso 87.7 (Commissioner Holdover Time Limit Exclusion) which is part of the 2025-26 Appropriations Act. You note that "Proviso 87.7 was first presented last fiscal year and expired June 30, 2025." You further state that "[t]he proviso was again introduced for the new fiscal year but vetoed by Governor McMaster. It appears the governor's vetoes will not be discussed again until the new session in January."

You have asked several questions regarding this issue:

1. What is the status of the commissioner that was held past their holdover limit under the previous proviso period (now expired)?

2. What will be the status of the two commissioners with holdover terms expiring August 15, 2025 (prior to the veto being addressed)?

3. What rights/privileges will these commissioners have if their legal term period has expired?
   a. Travel reimbursement for attending commission meetings
   b. Commissioner Tags through DMV
   c. Reimbursement for attending conferences and other commission related events

4. In the event that all three commissioners' terms have expired by August 15th what will we use for determining a quorum? Is a quorum based on occupied seats, or off total number of available seats? We have one commissioner who recently resigned, then we could have these three additional commissioners possibly out. That could be four of the eight commission seats being empty by year end making a quorum difficult if based off all eight seats.

5. A meeting was held in July and a commissioner was in attendance and voted on items while their term was potentially expired. Is that meeting official or does their presence and participation present any issues?

Law/Analysis

Section 13-1-1050(A) provides in pertinent part regarding members of the Aeronautics Commission:

[a]ll commission members must serve for a term of office of four years that expires on February fifteenth of the appropriate year, unless appointed to serve for a second term. Commissioner shall continue to serve until their successors are elected and qualify, provided that a commissioner only may serve until their successors are elected and qualify, and provided that a commissioner only may serve in a hold-over capacity for a period not to exceed six months after the first term or second term if appointed.

Proviso 87.7 suspended the six month limitation for the fiscal year. However, that proviso was vetoed.

To answer your questions, it is first necessary to distinguish between a "de jure" officer and one who is "de facto." As we stated in Op. S.C. Att'y Gen., 2011 WL 380158 (January 14, 2011),

"[a] 'de jure officer' is one who in all respects is regularly and legally appointed and qualified to hold a particular office and exercise the duties as his right. A 'de facto officer' is one who has a presumptive or colorable right or title to an office, accompanied by possession or actual use of the office. [citations omitted]." A de facto officer is "one who is in possession of an office, in good faith, entered by right, claiming to be entitled thereto, and discharging its duties under color of authority." Op. S.C. Att'y Gen., (October 14, 1998) (quoting Heyward v. Long, 178 S.C. 351, 183 S.E. 145, 151 (1936)). See also Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952); Smith v. City Council of Charleston, 198 S.C. 313, 17 S.E.2d 860 (1941); State v. Messervy, 86 S.C. 503, 68 S.E. 766 (1910).

In Op. S.C. Att'y Gen., 2003 WL 21471510 (June 5, 2003), we addressed a statute virtually identical to the one at hand (§ 13-1-1050(A)), including the language "may only serve in a hold-over capacity for a period not to exceed six months." We advised as follows:

[t]herefore, based upon the foregoing, it is apparent that during the six month period after a commissioner's term expires, the commissioner would serve in a de jure capacity.

This is because of the rule that "where a statute provides that an officer holdover ... such period is as much a part of the incumbent's term of office as the fixed constitutional or statutory period." Id.

However, as we noted in the 2003 opinion,

[t]he issue here, however, is the status of a commissioner after this six month period has expired. As noted above, typically, the General Assembly provides simply that an officer holdover until his successor is elected or appointed and qualifies. It is a rare situation where the General Assembly specifies a very limited holdover period, as the case here.

We noted that the reason underlying such a limited holdover period was to attempt to preclude refusal to make a new appointment.

Thus, we found that "commissioners who continue to holdover even after six months would be de facto officers." Accordingly, we concluded that a vacancy exists where an officer is serving in a de facto status after the six month holdover period has ended.

Moreover, in Op. S.C. Att'y Gen., 2023 WL 5829051 (August 30, 2023) we stated the following in the context of calculation of a quorum:

... this Office has consistently recognized "[a]s an officer de facto, any action taken as to the public or third parties would be as valid and effectual as those actions taken by an officer de jure unless or until a court would declare such acts void or remove the de facto officer from office." Op. S.C. Att'y Gen., 2003 WL 2147151 (June 5, 2003). "Until a court removes them or declares their acts void, the law treats all official duties and acts performed by these [officers] as valid with respect to third parties." Id. Apply these principles to the statutes at issue, ... a member in violation may be counted to calculate whether a quorum is present until the member is actually removed from office.

See also Trimble County Fiscal Court v. Trimble Co. Bd. Of Health, 587 S.W.2d 276, 281 (Ky. 1979) ["If a de facto officer cannot constitute a quorum or perform official duties, then such appears to negate the purpose of such office."].

Conclusion

Based upon the foregoing authorities, we answer your questions as follows:

1. The commissioner who has held past the six month holdover is a de facto officer. A vacancy exists and should be filled. All acts of a de facto officer are considered valid, as set forth above.

2. The two commissioners whose terms expire August 15, 2025 are currently de jure officers and after August 15 will become de facto officers. After August 15, 2025, these positions would be vacant and subject to filling.

3. The Supreme Court held in Elledge v. Wharton, 89 S.C. 113, 71 S.E. 657 (1911), that a de facto officer is entitled to the emoluments of office, such as salary or fees. Certainly, this would include travel reimbursement.

It is doubtful whether Commissioner Tags through DMV or reimbursement for attending a conference or other commission events is an emolument of office. An emolument is typically a "compensation for services"; license tag or payment for a conference is in a gray area for which I can find no precedent.

4. The de facto officer can be counted for purposes of a quorum. Op. S.C. Att'y Gen., 2023 WL 5829051 (August 30, 2023).

5. The meeting in July is valid.

Sincerely,

Robert D. Cook
Solicitor General