How do the two-term limit and holdover rules work for South Carolina Commission on Higher Education appointments?

Official title

Opinion addressing the appointment and service of members on the South Carolina Commission on Higher Education pursuant to Section 59-103-10 of the South Carolina Code.

Requester

Requested by Thomas A. Limehouse, Jr., Chief Legal Counsel, Office of the Governor of South Carolina.

Plain-English summary

The Governor's chief legal counsel asked the Attorney General five questions about how the term limits and appointment rules in S.C. Code § 59-103-10 work for the South Carolina Commission on Higher Education (CHE). The statute provides that the Governor appoints the commission's members, including ten members under subsection (1): seven representing the congressional districts (appointed on the recommendation of the district's legislative delegation) and three at-large. Subsection (1) says "[t]hese members" shall not serve more than two consecutive terms.

The AG answered each question:

First, the two-term limit applies to all ten members appointed under subsection (1), not just the seven congressional-district seats. Reading the subsection as a whole, "these members" refers to everyone appointed under it, and nothing limits the term cap to the district seats.

Second, finishing a predecessor's unexpired (partial) term does not count as a "term" for the limit. The office reaffirmed its longstanding view, consistent with its reading of the related decision in Sloan v. Hardee, that serving part of an unexpired term is different from serving a full term, so a person who completes a partial term remains eligible to serve two full terms afterward.

Third, holdover service does not count as an additional term. Because § 59-103-10 says members "shall serve until their successors are appointed and qualify," a member who holds over is a de jure officer, and the holdover period is treated as part of the original term, not a new one.

Fourth, a member who has served two consecutive terms in a congressional-district seat cannot then take an at-large seat (or vice versa). Since the cap applies to all subsection (1) members, switching seat types does not reset it.

Fifth, when a district's legislative delegation recommends someone, the Governor's role is ministerial. Drawing on older authority including Blalock v. Johnston and prior opinions about similar delegation-recommendation appointments, the AG concluded the Governor must appoint the person the delegation recommends and has no authority to judge that person's qualifications, including whether reappointment would break the two-term limit. That qualification judgment belongs to the legislative delegation.

What this means for you

The Governor's office: Based on this opinion, when a legislative delegation recommends a congressional-district appointee to the CHE, the Governor's role is ministerial and does not include screening the recommended person's qualifications or term-limit status. The delegation makes that call.

Legislative delegations: The opinion places on you the responsibility to determine whether a recommended candidate is qualified and whether reappointing them would violate the two-consecutive-term limit, because the Governor cannot second-guess that.

Current and prospective CHE members: The two-term cap covers all ten subsection (1) seats. Time you served only to finish someone else's term, or time spent holding over until a successor qualifies, does not count against the cap, but you cannot dodge it by moving between a district seat and an at-large seat.

Common questions

Does the CHE two-term limit apply to the at-large members or only the district members?
It applies to all ten members appointed under § 59-103-10(1), both the seven congressional-district members and the three at-large members, according to the AG.

If I finish someone else's partial term, does that use up one of my two terms?
No. The AG concluded that completing a predecessor's unexpired term does not count toward the two-consecutive-term limit, so you remain eligible to serve two full terms afterward.

Does holding over after my term ends count as another term?
No. Because the statute lets members serve until their successors are appointed and qualify, the holdover period is treated as part of your original term, not a new term.

Can the Governor refuse to appoint a person the legislative delegation recommends?
According to the opinion, no. The Governor's role in that appointment is ministerial; the Governor must appoint the recommended person and cannot judge their qualifications or term-limit eligibility, which is the delegation's responsibility.

Background and statutory framework

S.C. Code Ann. § 59-103-10 creates the Commission on Higher Education and sets its membership. Subsection (1) covers ten members appointed by the Governor: seven representing congressional districts (on the recommendation of the district's legislative delegation) and three at-large (on the advice and consent of the Senate), with qualification requirements, a four-year term, and a two-consecutive-term limit. The statute also provides that "[a]ll members of the commission shall serve until their successors are appointed and qualify," the holdover language central to question three.

On term limits and partial terms, the AG drew on its reading of Sloan v. Hardee, 271 S.C. 495, 640 S.E.2d 457 (2007), which construed a "more than one consecutive term" provision (in the context of S.C. Code Ann. § 57-1-320, the Department of Transportation Commission statute), and on prior opinions treating partial-term service as distinct from a full term. On holdover status, it relied on Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952), and the principle that the law abhors an interregnum in office.

For statutory construction generally, the opinion cited Gordon v. Phillips Utilities, Inc., 362 S.C. 403, 608 S.E.2d 425 (2005), and read the statute in pari materia under Beaufort Cnty. v. S.C. State Election Comm'n, 395 S.C. 366, 718 S.E.2d 432 (2011). On the ministerial nature of delegation-based appointments, it relied on Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51 (1936), and prior opinions interpreting analogous provisions such as S.C. Code Ann. § 6-13-30 (rural water district board appointments on legislative-delegation recommendation).

Citations

• S.C. Code Ann. § 59-103-10 (Commission on Higher Education membership, terms, and two-consecutive-term limit)
• S.C. Code Ann. § 57-1-320 (Department of Transportation Commission term provision, by analogy)
• S.C. Code Ann. § 6-13-30 (rural water district board appointments on delegation recommendation)
• Sloan v. Hardee, 271 S.C. 495, 640 S.E.2d 457 (2007)
• Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952)
• Gordon v. Phillips Utilities, Inc., 362 S.C. 403, 608 S.E.2d 425 (2005)
• Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51 (1936)
• Beaufort Cnty. v. S.C. State Election Comm'n, 395 S.C. 366, 718 S.E.2d 432 (2011)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-appointment-and-service-of-members-on-the-south-carolina-commission-on-higher-education-pursuant-to-section-59-103-10-of-the-south-carolina-code/
• Original PDF: https://www.scag.gov/media/fzjc14gr/03539780.pdf

Original opinion text

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Alan Wilson
Attorney General

March 25, 2024

Thomas A. Limehouse, Esq.
Chief Legal Counsel

Office of the Governor
1 1 00 Gervis Street

Columbia, South Carolina 29201

Dear Mr. Limehouse:
We received your letter requesting an opinion of this Office on behalf of the Office of the Governor
concerning “certain matters pertaining to section 59-103-10 of the South Carolina Code of Laws
and the composition of the State Commission on Higher Education (‘CHE’).” Specifically, you
ask the five questions regarding section 59-103-10 of the South Carolina Code and the appointment
or service of the members of the CHE, which we will address in turn.

Law/Analysis
1.

Does “[tlhcse members” refer to the seven congressional-district seats or all ten seats,

including the three gubernatorial appointees, addressed in subsection (1)?
As you mentioned in your letter, section 59-103-10 of the South Carolina Code (2020) creates the
CHE and establishes its membership.

This provision states, “[t]he commission shall consist of

fifteen members appointed by the Governor” and specifies the membership as follows:
(1) Ten members, seven to represent each of the congressional districts of this
State appointed by the Governor upon the recommendation of a majority of the
senators and a majority of the members of the House of Representatives

comprising the legislative delegation from the district and three members
appointed from the State at large upon the advice and consent of the Senate.
Each representative of a congressional district must be a resident of the
congressional district he represents. In order to qualify for appointment, the
representatives from the congressional districts and those appointed at large

must have experience in at least one of the following areas: business, the
education of future leaders and teachers, management, or policy. A member

representing the congressional districts or appointed at large must not have
been, during the succeeding five years, a member of a governing body of a
public institution of higher learning in this State and must not be employed or
have immediate family members employed by any of the public colleges and
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Thomas A. Limehouse, Esq.
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March 25, 2024

universities of this State. These members must be appointed for terms of four
years and shall not serve on the commission for more than two consecutive
terms. However, the initial term of office for a member appointed from an evennumbered congressional district shall be two years.
If the boundaries of the congressional districts are changed, members serving
on the commission shall continue to serve until the expiration of their current
terms, but successors to members whose terms expire must be appointed from

the newly defined congressional districts. If a congressional district is added,

the commission must be enlarged to include a representative from that district.
(2) Three members to serve ex officio to represent the public colleges and
universities appointed by the Governor with the advice and consent of the

Senate. It shall not be a conflict of interest for any voting ex officio member to
vote on matters pertaining to their individual college or university. One member
must be serving on the board of trustees of one of the public senior research
institutions, one member must be serving on the board of trustees of one of the

four-year public institutions of higher learning, and one member must be a
member of one of the local area technical education commissions or the State

Board for Technical and Comprehensive Education to represent the State Board

for Technical and Comprehensive Education.

These members must be

appointed to serve terms of two years with terms to rotate among the
institutions.
(3) One ex officio member to represent the independent colleges and
universities by the Governor upon the advice and consent of the Senate. The

individual appointed must be serving as a member of the Advisory Council of
Private College Presidents. This member must be appointed for a term of two
years and shall serve as a nonvoting member.
(4) One at-large member to serve as chairman appointed by the Governor with

the advice and consent of the Senate. This member must be appointed for a term
of four years and may be reappointed for one additional term; however, he may
serve only one term as chairman.

The Governor, by his appointments, shall assure that various economic interests
and minority groups, especially women and blacks, are fairly represented on the
commission and shall attempt to assure that the graduates of no one public or
private college or technical college are dominant on the commission. Vacancies

must be filled in the manner of the original appointment for the unexpired
portion of the term. All members of the commission shall serve until their

successors are appointed and qualify.

Thomas A. Limehouse, Esq.
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March 25, 2024

S.C. Code Ann. § 59-103-10 (emphasis added). In your letter, you question whether “these
members” in subsection (1) refers to the seven congressional-district seats or all ten seats appointed

by the Governor pursuant to this subsection.
To answer your question, we employ the rules of statutory interpretation the primary of which is
to effectuate the intent of the Legislature. Gordon v. Phillips Utilities, Inc., 362 S.C. 403, 406, 608
S.E.2d 425, 427 (2005) (“The primary purpose in construing a statute is to ascertain legislative
intent.”). “‘If a statute’s language is plain and unambiguous, and conveys a clear and definite
meaning, there is no occasion for employing rules of statutory interpretation and the court has no

right to look for or impose another meaning.’” Id. at 406; 608 S.E.2d at 427 (quoting Paschal v.
State Election Comm’n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995)). “In ascertaining

legislative intent, ‘a court should not focus on any single section or provision but should consider
the language of the statute as a whole.’” Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 342, 713
S.E.2d 278, 283 (201 1) (quoting Mid-State Auto Auction of Lexington, Inc, v. Altman, 324 S.C.

65, 69, 476 S.E.2d 690, 692 (1996)). “Moreover, it is well settled that statutes dealing with the
same subject matter are in pari materia and must be construed together, if possible, to produce a
single, harmonious result.” Beaufort Cnty. v. S.C. State Election Comm’n, 395 S.C. 366, 371, 718
S.E.2d 432, 435 (2011).

Reading section 59-103-10 as a whole, subsection (1) pertains to the appointment of ten of the
members of the CHE by the Governor. The statute provides that seven of those ten members must
represent the seven congressional districts and three members serve at large. While this statute
specifies a residency requirement for those members representing the congressional districts, it

sets forth additional requirements that apply to both types of appointments including experience
in certain areas as well as a prohibition on individuals who recently served on the boards of public
colleges and universities in South Carolina.

As emphasized above, section 59-103-10(1) also

contains a term limit. It does not specify that the term limit applies to both members representing
congressional districts and those serving at large. However, from the context of this subsection,

we believe the Legislature intended for it to apply to both types of members. Subsection (1) applies
generally to both the seven congressional district appointees and the at large appointees.
Therefore, the use of the term “these members” indicates it applies to all the members appointed
pursuant to this subsection. Additionally, while this subsection makes certain requirements
applicable to only the congressional district appointees, it does not specify that the term limit only

applies to the seven congressional districts appointees. Thus, reading section 59-103-10(1) as a

whole, we believe the term limit applies to all ten of the members appointed by the Governor
pursuant to this subsection.
2.

Does completion of a predecessor’s unexpired term count as a “term” for purposes of
the statute’s limitation that “[flhese members . . . shall not serve on the commission
for more than two consecutive terms”?

In prior opinions, we considered how serving a partial term impacts a statutorily imposed term

limit. In 2007 opinion, we addressed whether serving a partial term on the South Carolina

Thomas A. Limehouse, Esq.
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March 25, 2024

Department of Transportation Commission would prevent an individual from serving a full term
when section 57-1-320 prevented a commission member from serving “more than one consecutive
term.” We issued this opinion subsequent to the South Carolina Supreme Court’s decision in Sloan
v. Hardee, 271 S.C. 495, 640 S.E.2d 457 (2007), which interpreted a provision preventing service
on the commission “for more than one consecutive term” as limiting service on the commission to
one term. S.C. Code Ann. § 57-1-320). Citing several prior opinions, we opined: “we continue to
believe serving a portion of an unexpired term is distinguishable from serving full term in office
and therefore, does not count toward a term limit imposed by statute.” Op. Att’v Gen., 2007 WL
3244889 (S.C.A.G. Aug. 16, 2007). As we stated on numerous occasions “this Office will not
overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law.”
Op. Att’v Gen., 2013 WL 3762706 (S.C.A.G. July 1, 2013). As such, we believe the two
consecutive term limitation provided in section 59-103-10(1) means two full terms. Therefore, it
is our opinion that a person serving a partial term is eligible to serve two full terms after the
expiration of their partial term.
3.

Does service in a holdover capacity count towards “two consecutive terms”? If so, is
a member of the CHE who has served “more than two consecutive terms,” when
including service in a holdover capacity, eligible for reappointment?

In a 2003 opinion, we discussed the law pertaining to the legal status of those serving in a holdover
capacity as follows:
The law distinguishes somewhat between an officer who holds over by statute

and one holding over where no statute providing for holdover status is
applicable. In Op. S.C. Atty. Gen., Op. No. 84-129 (November 5, 1984), we
noted that “where a statute provides that an officer hold over until a successor
is selected and qualifies, such period is as much a part of the incumbent’s term

of office as the fixed constitutional or statutory period.”
A person who by statute holds over until a successor is elected or appointed and
qualifies is, in other words, a de jure officer. On the other hand, it was
recognized by our Supreme Court in Bradford v. Byrnes, 221 S.C. 255, 262, 70
S.E.2d 228 (1952) that
... in the absence of pertinent statutory or constitutional provision,
public [officers] ... hold over de facto until their successors are
appointed or elected as may be provided by law, qualify and take the
offices; but meanwhile the “holdovers” are entitled to retain the offices.
As nature abhors a void, the law of government does not countenance
an interregnum.

Op. Att’v Gen., 2003 WL 21471510 (S.C.A.G. June 5, 2003). In a 2013 opinion, we further
explained:

Thomas A. Limehouse, Esq.
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March 25, 2024

[I]t is also well established that a situation where an officer holds over beyond
his term does not serve to vary the term because of the delay of the successor’s
election or appointment. As our Supreme Court recognized in Heyward v.
Long, supra.

“since the term of an office is distinct from the tenure of an officer, the
term of office is not affected by the holding over of an incumbent

beyond the expiration of the term for which he was appointed; and a
holding over does not change the length of the term but merely shortens
the term of the successor.”
183 S.E.2d at 156. (emphasis added).
Op. Att’y Gen., 2013 WL 2450881 (S.C.A.G. May 29, 2013).

As quoted above, section 59-103-10 specifies: “All members of the commission shall serve until
their successors are appointed and qualify.” This statute specifically permits members to serve in
a holdover capacity until their successors are appointed and qualify. As such, a CHE member who

holds over until their successor is appointed and qualifies is a de jure officer and the holdover
period is part of their original term of office as opposed to a new term of office. Accordingly, the
holdover period would not count as an additional term of office, potentially preventing the
individual from serving another term of office.
4.

Is a member of the CHE who has served two consecutive terms in a congressional-

district seat eligible for appointment to serve in an at-large seat on the CHE (or viceversa)?

As explained above, we are of the opinion that the provision in section 59-103-10(1) limiting
members to serving no more than “two consecutive terms,” applies to all CHE members appointed
by the Governor pursuant to section 59-103-10(1). Therefore, we believe this term limit would
prohibit members appointed pursuant to this provision from serving more than two terms
regardless of whether they served in a congressional district seat or an at-large seat.
5.

If a congressional district’s legislative delegation recommends that the Governor
reappoint an individual who has already served on the CHE for “more than two
consecutive terms,” does the Governor have a ministerial duty to reappoint the
individual recommended by the delegation?

As quoted above, section 59-103-10(1) gives the Governor authority to appoint seven members to
the CHE representing each congressional district “upon the recommendation of a majority of the

senators and a majority of the members of the House of Representatives comprising the legislative
delegation from the district . . . .” While we have not opined specifically on the Governor’s

Thomas A. Limehouse, Esq.
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March 25, 2024

authority regarding this provision, we described the Governor’s appointment authority as
ministerial under similar circumstances in which his or her authority to appoint is based upon the
recommendation of a legislative delegation. For example, in a 20 1 5 opinion we interpreted section
6-13-30 of the South Carolina Code giving the Governor authority to appointment members to
boards of rural water districts “upon the recommendation of a majority of the county legislative
delegation.”

Op. Att’y Gen., 2015 WL 4042030 (S.C.A.G. June 17, 2015).

opinion, we explained:

Quoting a 1987

[i]t should be noted that ... the actual exercise of discretion in choosing

persons for appointment rests with the Delegation. The Governor’s role in the appointment
procedure is ministerial and involves no exercise of discretion. Blalock v. Johnston, 180 S.C. 40,
185 S.E. 51 (1936).” Id. (quoting Op. S.C. Atty. Gen., February 5, 1987 (1987 WL 342791)). We

provided a similar explanation in a 1988 opinion discussing appointments to county boards of
social services which are made by the Governor upon the recommendation of a majority of the
county legislative delegation. Op. Att’y Gen., 1988 WL 383494 (S.C.A.G. Jan. 27, 1988).

The role of the Governor in this appointment process is ministerial; he would
be required to appoint those individuals whose names have been submitted to
him by a county legislative delegation. As stated in Blalock v. Johnston, 1 80

S.C. 40, 185 S.E. 51 (1936), construing an appointment statute similar to
Section 43-3-10 of the Code:
The law imposes the positive duty upon the Governor to make the
appointment at a time and in a manner or upon conditions which are
specifically designated. It is a simple definite duty arising under

conditions admitted or proved to exist, and it leaves nothing to his
discretion. It is ministerial.

Id.,

180 S.C. at 47-48. Thus, the Governor’s role would be limited to
appointment of those individuals as named by the delegation; the Governor
would not be the decision-maker as to the number of individuals to be
appointed.

I±
Section 59-103-10(1) provides that the Governor’s authority to appoint the seven members of the
CHE representing each congressional district is upon the recommendation of the legislative
delegation representing that district. Therefore, the Governor’s role is ministerial and leaves him

or her no discretion in who to appoint. As such, we do not believe the Governor has authority to
judge the qualifications of the person or persons recommended to him or her. It is the responsibility
of the legislative delegation to determine who meets the qualifications to serve on the CHE,
including whether reappointing them will violate the two-term limit established in section 59-103103(1).

Thomas A. Limehouse, Esq.
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March 25, 2024

Conclusion

Based on our analysis above, we believe the use of the term “[t]hese members’" in section 59-10310(1) refers to all ten members of the CHE appointed pursuant to this subsection and therefore
prohibits both the seven members who represent congressional districts and three at-large members
from severing more than two consecutive terms. We also believe this provision would prevent
someone who has served two consecutive terms as a congressional district member from being

reappointed to serve at-large and vice versa. However, based on prior opinions of this Office
determining an individual may occupy an office without serving for a term, we believe the
appointment an individual to complete a predecessor’s unexpired term on the CHE would not
count against the two consecutive term limitation. Moreover, section 59-103-10(1) specifies that
“[a]ll members of the commission shall serve until their successors are appointed and qualify.” As
such, any member who holds over until their successor is appointed and qualifies would be a de

jure officer and a court will likely treat the holdover period as part of their original term of office
as opposed to a new term of office. Accordingly, the holdover period would not count against the
two consecutive term limitation.

While section 59-103-10(1) gives the Governor authority to appoint members to the CHE, he or
she must do so upon the recommendation of that district’s legislative delegation.

As we have

similarly opined in previous opinions, this authority is ministerial and involves no exercise of
discretion by the Governor. Therefore, we do not believe the Governor has authority to judge the

qualifications of a member recommended by a district’s legislative delegation, including whether
reappointing that person would violate the two consecutive term limitation. A district’s legislative
delegation is responsible for determining whether an individual meets the qualifications to serve

as a congressional district representative on the CHE.

Sincerely,

Cydney
Sydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

' Robert fo. Conk
Solicitor General