Did a Clarendon County school trustee’s election as mayor vacate the trustee seat?

Plain-English summary

In April 2022, the South Carolina Attorney General concluded that a vacancy arose on the Clarendon County School District Board of Trustees when its vice chairperson became mayor of a local municipality. The office treated both the school board seat and the mayoralty as public offices. Holding the second office triggered the state's dual-office prohibition and, under the prior AG opinions it quoted, vacated the first office by operation of law.

The opinion also quoted the rule that the former officeholder could continue to act as a de facto officer until a successor was selected, and that acts toward the public or third parties generally remained effective unless a court declared otherwise. The Clarendon consolidation act assigned the county legislative delegation the task of filling a vacancy before the term expired.

What this means for you

Clarendon school district and legislative delegation

The AG said the board seat became vacant when the trustee took the mayoral office. It identified the consolidation act's provision for a legislative-delegation appointment to fill a vacancy during the term.

School trustees and municipal officeholders

The opinion considered both positions public offices for the dual-office rule. It described the vacancy as automatic upon assuming the second office, while explaining the de facto status of any continued service before a successor took over.

Common questions

Q: Could the vice chairperson legally keep both the trustee seat and the mayor's office? A: The AG said no. It concluded that the two roles constituted dual office holding under the state constitution.

Q: Which seat became vacant?
A: The first one held, the school trustee position, according to the rule quoted in the opinion.

Q: Were board actions taken before a replacement necessarily void? A: The opinion quoted prior authority that a de facto officer's public-facing acts could remain valid unless a court declared them void or removed the person.

Background and statutory framework

A senator sought an expedited answer after a Clarendon school board vice chairperson was elected mayor. The AG reviewed the 2021 act creating the consolidated school district, state precedent defining public offices, and earlier AG opinions on mayors, school trustees, and vacancies arising from dual office holding.

Citations and references

• 2021 South Carolina Acts 106, sections 2 and 3: board structure and vacancy provisions quoted in the opinion.
• South Carolina Constitution, article XVII, section 1A: dual-office provision discussed in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-whether-a-vacancy-was-created-on-the-clarendon-county-school-district-board-of-trustees-when-the-vice-chairperson-was-recently-elected-to-the-position-of-mayor-of-a-local-municipality/
• Original PDF: https://www.scag.gov/media/bbyb2jr2/02949090.pdf

Original opinion text

\ 5PES

south c
Alan Wilson
Attorney General

April 11,2022

The Honorable Kevin L. Johnson
613 Gressette Senate Bldg
PO Box 142

Columbia, SC 29202
Dear Senator Johnson:
You are requesting an expedited opinion of this Office regarding whether a vacancy was created on the Clarendon County School District Board of Trustees when the Vice Chairperson of the

Board was recently elected to the position of Mayor of a local municipality. LAW/ANALYSIS

To provide some background, the Legislature enacted 2021 South Carolina Acts 106 (“Act”) in order to consolidate Clarendon County School District No. 2 and Clarendon County School District No. 4 into the Clarendon County School District (“School District”). The Act provides:

The Clarendon County School District must be governed by a board of trustees of nine members to be appointed initially by a majority of the Clarendon County Legislative Delegation. The nine members initially appointed by the legislative delegation after the effective date of this act must be qualified electors of Clarendon

County, and these appointed members shall serve on the Clarendon County School District Board of Trustees until their successors are elected in school district elections conducted at the same time as the 2024 General Election and qualify. Act, Section 2(A).

Pursuant to the Act, “the members of the consolidated school district board of trustees appointed after the effective date of this act shall take office on the date they take the oath of office. Act, Section 7(A). “In the event of a vacancy on the board occurring for any reason other than the

Rembert C. Dennis Building

»

Post Office Box i 1549

• Columbia, SC 2921 1-1549

• Telephone 803-734-3970

» Facsimile 803-253-6283

The Honorable Kevin L. Johnson
Page 2
April 11,2022

expiration of a term, the vacancy must be filled for the remainder of the unexpired term through

appointment by the county legislative delegation.” Act, Section 2(B). The members of the School District’s board of trustees are granted certain powers and duties. See Act, Section 3(B).

The Act also provides that “[t]he members of the Clarendon County

School District Board of Trustees shall elect a chairman and other officers they consider necessary for terms that are coterminous with their appointed or elected terms of office.” Act, Section 3(A). We believe that your question regarding the Vice Chairperson of the School District’s Board who was recently elected as Mayor involves dual office holding. The South Carolina Supreme

Court explains that an “office” for dual office holding purposes is: “One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer.” Sanders v. Belue, 78 S.C. 171, 174, 58 S.E. 762, 763

(1907), “In considering whether a particular position is an office in the constitutional sense, it must be demonstrated that “[t]he power of appointment comes from the state, the authority is derived from the law, and the duties are exercised for the benefit of the public.” Willis v. Aiken County, 203 S.C. 96, 103 26 S.E.2d 313, 316 (1943). “The powers conferred and the duties to be discharged with regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority
...” 63C Am Jur.2d Public Officers and Employees § 5 (2009).

Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 691 S.E.2d453 (2010). Other relevant considerations for an office are:

whether the position was created by the legislature; whether the qualifications for appointment are established; whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others.

Op. S.C. Atty. Gen., 2013 WL 3243063 (June 17, 2013) (quoting State v. Crenshaw, 274 S.C. 475, 478,266 S.E.2d 61, 62 (1980)).

The Honorable Kevin L. Johnson
Page 3
April 1 1, 2022

We have determined “numerous times that members of county school boards hold offices within the meaning of the dual office holding provision.” Op. S.C. Atty. Gen., 2011 WL 2214066 (May

19, 2011).

We do not believe that members of the School District’s Board are any different,

because their position, qualifications for appointment, duties, and tenure were all established by the Legislature. Furthermore, “[t]his Office has concluded on numerous occasions that one who

serves as the mayor of a municipality would hold an office for dual office holding purposes.” Op. S.C. Atty. Gen., 2000 WL 1803616 (Oct. 16, 2000). We therefore believe that simultaneous

service on the School District’s Board of Trustees and as mayor would constitute dual office holding.

In prior opinions, we addressed what steps must be followed if a dual office holding situation

occurred:
When a dual office holding

situation occurs, the law operates

automatically to ““cure” the problem. If an individual holds one office on the date he assumes a second office, assuming both

offices fall within the purview of Article XVII, Section 1 A of the Constitution (or

one

of

the

other

applicable

constitutional

prohibitions against dual office holding), he is deemed by law to have

vacated

the

first

office

held.

Thus,

the

law

operates

automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously

held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dover v. Kirkland, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. 156 (1877). Furthermore, actions taken by a de facto officer in

relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State Ex rel. Macleod v. Court of Probate of Collation County, 266

S.C. 279, 223

S.E.2d

166 (1976); State ex rel.

McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Aver, 3 Stob. 92 (S.C. 1848). Op. S.C. Atty. Gen., 2007 WL 1651345 (May 9, 2007) (quoting Op. S.C. Atty. Gen., May 27,

2003).

The Honorable Kevin L. Johnson
Page 4

April 11,2022

CONCLUSION
Because of the dual office holding, we believe that a vacancy was created on the School District's Board of Trustees when the board member was elected as mayor. Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General