Who appoints members of South Carolina's Mitford Rural Water District board, and can the board fill its own vacancies?

Plain-English summary

A legislator asked who selects members of the Mitford Rural Water District Board and how vacancies should be filled. The Attorney General concluded that a court would likely apply the district's specific statute, S.C. Code § 6-13-630: a majority of residents who attend a meeting recommends a candidate, and the Governor appoints the member. The meeting requires at least one week's notice in a local newspaper, and its chair and secretary certify the recommended names to the Governor. A vacancy is filled "in like manner as the original appointment" for the rest of the term.

That differs from a general statute, § 6-11-80, under which remaining members of some district commissions elect a replacement. The opinion says the Mitford statute controls because it addresses this board specifically. It also discusses § 8-1-150, which concerns vacancies when no other procedure is provided; Mitford has its own procedure. The board's belief that it could select its own members was not supported by any separate authority supplied to the Attorney General.

The opinion does not decide whether any named member was improperly appointed. That requires facts the Attorney General cannot find in an opinion. It says an interested party could ask a court through a quo warranto or declaratory-judgment action. The opinion also notes that acts taken by someone serving under an invalid appointment may still be valid under the de facto officer doctrine; it does not determine the status of this board's past acts.

What this means for you

District residents

The statute gives residents attending the noticed meeting the recommendation role. The opinion specifies a majority of those attending, followed by appointment by the Governor. It does not say that the board itself can bypass either step.

Mitford board members

A vacancy uses the same resident-recommendation and Governor-appointment process as an original seat. The opinion says the general rule allowing remaining commissioners to elect a replacement does not displace § 6-13-630 for Mitford.

Governor's appointment staff

Under the opinion's reading, the Governor appoints after the meeting's chair and secretary certify the names recommended by a majority of attendees. The statute applies the same sequence to vacancies for the unexpired term.

Common questions

Q: Can Mitford board members vote to appoint their own replacement? A: The Attorney General says a court would likely reject that method. Section 6-13-630 calls for a recommendation by a majority at a residents' meeting and an appointment by the Governor, including for vacancies.

Q: How must the residents' recommendation be made?
A: The statute quoted in the opinion requires a meeting after at least one week's notice in a local newspaper. A majority of those attending recommends candidates; the meeting's chair and secretary certify the names to the Governor.

Q: Does a general special-district vacancy law let the board fill a seat? A: The opinion says no for this board. It treats § 6-13-630's specific vacancy procedure as controlling over the general method in § 6-11-80. It also says § 8-1-150 concerns districts without a specific vacancy provision.

Q: Were existing Mitford members improperly appointed? A: The Attorney General did not decide that factual question. The opinion identifies quo warranto and declaratory-judgment actions as ways an interested party could ask a court to decide a member's appointment status.

Q: Would an invalid appointment automatically void past board decisions? A: The opinion says not necessarily. It cites earlier AG guidance that acts of a de facto officer may be valid as to the public and third parties, even if the appointment was irregular. It makes no ruling on particular Mitford decisions.

Background and statutory framework

The legislature created the district through Act 192 of 1965. Its appointment language was codified at S.C. Code § 6-13-630 and, according to the opinion, has not been amended. That section assigns the appointment to the Governor after recommendation by meeting attendees and states that vacancies use the original appointment method.

The opinion compares two broader statutes. Section 6-11-80 allows remaining commissioners to elect a replacement in some districts. Section 8-1-150 addresses vacancies where the governing law supplies no method. The Attorney General applies the specific-statute principle discussed in Denman v. City of Columbia, 387 S.C. 131, 138, 691 S.E.2d 465, 468-69 (2010), and concludes that neither general provision displaces Mitford's rule.

For a challenge to a member's title, the opinion cites State ex rel. Condon v. City of Columbia, 339 S.C. 8, 14, 528 S.E.2d 408, 411 (2000), on quo warranto, and the Declaratory Judgments Act, §§ 15-53-20 and 15-53-30. It expressly leaves any individual member's status to a fact-finding court.

Citations and references

• S.C. Code § 6-13-630 (Mitford appointments and vacancies)
• S.C. Code § 6-11-80 (general district vacancy provision)
• S.C. Code § 8-1-150 (vacancies where no provision exists)
• S.C. Code Ann. §§ 15-53-20, 15-53-30 (declaratory judgments)
• Denman v. City of Columbia, 387 S.C. 131, 691 S.E.2d 465 (2010)
• State ex rel. Condon v. City of Columbia, 339 S.C. 8, 528 S.E.2d 408 (2000)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-appointment-process-for-members-of-the-mitford-rural-water-district-board-of-fairfield-and-chester-counties/
• Original PDF: https://www.scag.gov/media/onofk1xt/03201386.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

January 19, 2023

The Honorable Annie E. McDaniel
Member

South Carolina House of Representatives
P.O. Box 11867

Columbia, SC 29211-1867

Dear Representative McDaniel:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter requests an expedited opinion addressing the following:

I have learned that the Mitford Rural Water District Board of Fairfield and Chester Counties believes that it, and not our Governor, selects the members of its Board. My research has turned up this provision in the South Carolina Code of Laws:

SECTION 6-13-630. Creation and membership of Mitford Rural Water District Board of Fairfield and Chester Counties.

The district shall be operated and managed by a board of directors to be known as the Mitford Rural Water District Board of Fairfield and Chester Counties which shall constitute the governing body of the district. The board shall consist of five resident electors of the area who shall be appointed by the Governor, upon the recommendation of a majority of those persons attending a meeting of residents of the area held pursuant to at least one week's notice in a local newspaper giving the time and place of the meeting. The chairman and secretary of the meeting shall certify the names of those recommended to the Governor. The original appointments shall be for a term of two years for two appointees, for four years

The Honorable Annie E. McDaniel
Page 2
January 19, 2023

for two appointees, and for six years for one appointee. All terms after the initial appointments shall be for six years. All appointees shall hold office until their successors shall have been appointed and qualified. The initial terms of office shall begin as of April 12, 1965. Any vacancy shall be filled in like manner as the original appointment for the unexpired portion of the term. Immediately after appointment, the board shall meet and organize by the election of one of its members as chairman, one as vice chairman, one as secretary and one as treasurer. The offices of the secretary and treasurer may be combined in the discretion of the board.

As a result of this situation, confusion has developed around how to fill vacancies on this Board and what can be done with purported Board members who have not been seated pursuant to this statutorily-based method. Therefore, I ask:

1. Based on your review of this, and any other applicable Code Sections, who
   actually appoints these Board members?

2. In your opinion, do you see any method where this Board, and no one else, can
   name the members of its Board?

3. In your opinion, must the naming of these Board members by the Governor
   come after a majority vote by the residents served by the Mitford Rural Water District Board of Fairfield and Chester Counties?

4. Does only the Governor have this appointment power under S.C. Code § 6-13-
   630?

5. If only our Governor has the power to appoint this Board membership under
   S.C. Code § 6-13-630, how can the Board members not selected by this statutory method best be removed from office?

Law/Analysis

Given that your letter requests an expedited response, this opinion should be read in that context. It is this Office’s opinion that a court would hold the members of the Mitford Rural Water District Board of Fairfield and Chester Counties (“Mitford Rural Water District”) are appointed by the Governor, “upon the recommendation of a majority of those persons attending a meeting of residents of the area.” S.C. Code § 6-13-630, Mitford Rural Water District was created by the General Assembly by Act 192 of 1965. Section 3 of Act 192 established that the District would be operated and managed by a Board of Directors. Therein, it specified that board members would be appointed by the Governor, “upon the recommendation of a majority of those persons attending a meeting of residents of the area.” 1965 Act No. 192, § 3. Act 192 was later codified in the 1976

The Honorable Annie E. McDaniel
Page 3
January 19, 2023

Code of Laws as S.C. Code § 6-13-630. As there have been no amendments to the statute, this method of selecting board members has consistently applied from the District’s inception.

This Office was not provided a specific source of authority that Board relies upon to select its own members. We speculate that there may be confusion arising from directives in other statutes that address special purpose or public service districts generally. For instance, S.C. Code
§ 6-11-80 addresses the organization of and vacancies on such a commission. In relevant part, it states, “In the event of any vacancy on the commission the remaining members of the commission shall elect a commissioner to fill the unexpired term.” Id. A court would likely hold using this method of filling vacancies is invalid because it is inconsistent with the provisions of S.C. Code § 6-13-630 which is specific to the Mitford Rural Water District. When two statutes are found incapable of being reasonably reconciled, the choice of which statute prevails is guided by the following principles:

[Where two statutes are in conflict, the more recent and specific statute should prevail so as to repeal the earlier, general statute. Hodges v. Rainey, id. at 85, 533 S.E.2d at 581; Stone v. City of Orangeburg, 313 S.C. 533, 535, 443 S.E.2d 544, 545 (1994).

Furthermore, “[w]here there is one statute addressing an issue in general terms and another statute dealing with the identical issue in a more specific and definite manner, the more specific statute will be considered an exception to, or a qualifier of, the general statute and given such effect.” Spectre, LLC v. S.C. Dept. of Health and Envtl. Control, 386 S.C. 357, 688 S.E.2d 844, 851 (2010). Specific statutes are not to be considered repealed by a later general statute unless there is a direct reference to the earlier statute or the intent of the legislature to do so is explicitly implied.

Denman v. City of Columbia, 387 S.C. 131, 138, 691 S.E.2d 465, 468-69 (2010). Here, S.C. Code
§ 6-13-630 is both more specific to the Mitford Rural Water District and was enacted more recently than S.C. Code § 6-11-80.!

Moreover, in 1988, the General Assembly enacted S.C. Code § 8-1-150 which provides a different method of filling vacancies on the governing body of special purpose or public service districts.

Whenever a vacancy occurs in the membership of the governing body of a special purpose district or public service district, and the duties of the governing body are

"S.C. Code § 6-11-80 was originally adopted in 1934. See 1934 (38) 1292.

The Honorable Annie E. McDaniel
Page 4
January 19, 2023

proscribed by law, and there is no provision for filling the vacancy, it must be filled in the same manner of original appointment or election for the remainder of the unexpired term.

Id. Section 8-1-150 is, again, more recently enacted and therefore its terms would also likely prevail over those in section 6-11-80 if there is a conflict.” In the case of vacancies on the Mitford Rural Water District, however, a provision directs how to fill vacancies that is specific to this board. “Any vacancy shall be filled in like manner as the original appointment for the unexpired portion of the term.” S.C. Code § 6-13-630. As discussed above, those original appointments are made by the Governor upon the recommendation of a majority of those persons attending a meeting of residents of the area.

This opinion makes no determinations regarding any specific members of the Mitford Rural Water District as those would require factual determinations which are beyond the scope of this Office’s opinions. See Op. S.C. Att'y Gen., 2006 WL 1207271 (April 4, 2006) (“Because this Office does not have the authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual questions.”). Yet, if an interested party sought to challenge whether a board member was properly appointed, they could file a quo warranto action or file an action under the Declaratory Judgment Act. “A quo warranto action is rooted in the common law writ designed to test whether a person exercising power is legally entitled to do so. It is an ancient prerogative right through which the state acts to protect itself and the good of the public generally...” State ex rel. Condon v. City of Columbia, 339 S.C. 8, 14, 528 S.E.2d 408, 411 (2000).

When a party has a question regarding its rights or obligations under the law, the party may bring an action under the Declaratory Judgments Act to have the question resolved by a court. The Declaratory Judgments Act provides, “Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed.” S.C. Code Ann. § 15-53-20 (2005). It further provides, “Any person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder.” S.C. Code Ann. § 15-53-30 (2005).

S.C. Lottery Comm'n v. Glassmeyer, 433 S.C. 244, 250, 857 S.E.2d 889, 892-93 (2021) (footnotes omitted). Both actions authorize a court to determine whether a board member was properly appointed and to call for an election to fill an improperly appointed member’s seat.

? See Op. S.C. Att’y Gen., 1998 WL 196483 (March 26, 1998) (concluding the provisions of S.C. Code § 8-1-150 applied to fill a vacancy on the Board of Fire Control for the Duncan Chapel Fire District).

The Honorable Annie E. McDaniel
Page 5
January 19, 2023

This Office has previously opined regarding the validity of actions taken by improperly appointed individuals during their service on a board or commission.

It is well recognized under the general law that “in order to hold a public office, one must be eligible and possess the qualifications prescribed by law, and the appointment to office of a person who is ineligible or unqualified gives him no right to hold the office.” Op. S.C. Atty Gen., January 14, 1999. In that same opinion, we noted that the “appointment of an individual not qualified to serve is void and an absolute nullity.” Citing 67 C.J.S., Officers, § 19. This Office has previously stated that if a person is not qualified to hold office when he is appointed and begins to serve, that appointment is ineffective. Op. S.C. Atty. Gen., February 17, 1983.

However, the January 14, 1999 opinion also recognized that “[t]he fact that the appointment is an absolute nullity would not necessarily jeopardize the actions taken by the individual in question during his service on the board or commission.” Just as the situation where the individual holds over beyond his or her statutory term or without statutory authorization to do so, “[i]t is well settled that one who holds office under an appointment giving color of title may be a de facto officer, although the appointment is irregular or invalid.” Id. As the opinion stated, “[t]he acts of a de facto officer are valid and effectual so far as they concern the public or the rights of third parties.”

Op. S.C. Att’y Gen., 2003 WL 21471510 (June 5, 2003). While a court may hold the actions taken by the board, even if some members are improperly seated, are valid, we strongly suggest following the appointment provisions in S.C. Code § 6-13-630 to limit the potential risks of litigation.

Conclusion

Based on the analysis discussed more fully above, it is this Office’s opinion that a court would hold the members of the Mitford Rural Water District Board of Fairfield and Chester Counties (“Mitford Rural Water District”) are appointed by the Governor, “upon the recommendation of a majority of those persons attending a meeting of residents of the area.” S.C. Code § 6-13-630. If an interested party sought to challenge whether a board member was properly appointed, they could file a quo warranto action or file an action under the Declaratory Judgment

Act.
Sincerely,

Matthew Houck
Assistant Attorney General

The Honorable Annie E. McDaniel
Page 6
January 19, 2023

REVIEWED AND APPROVED BY:

Wd Q Zar

“Robert D. Cook
Solicitor General