If a member of a South Carolina town planning commission resigns, can the remaining members still meet and vote, or must business halt until a replacement is appointed?

Plain-English summary

The Town of Six Mile's five-member planning commission lost a member to resignation and stopped meeting because the chair believed the body could not legally function below the statutory minimum of five members. The Attorney General disagreed on both points.

S.C. Code § 6-29-350(A) sets the minimum appointment number at five, but it does not control how many members must be present to do business. That is a quorum question, and South Carolina has a default common-law rule (reflected in S.C. Code § 30-4-20(e)) that a simple majority of the constituent membership constitutes a quorum. For a five-member commission, three members are enough to hold a meeting and act.

The opinion also addressed the vacancy itself. Under S.C. Code § 6-29-350(B), planning commissioners "serve until their successors are appointed and qualified." The AG, citing Rogers v. Coleman, concluded that this holdover language is mandatory: a resignation has no immediate legal effect until a successor qualifies, so the resigning commissioner remains a de jure officer in the meantime and the commission technically still has five members.

Finally, the Office warned that the chair's view created its own Open Meetings problem. When a quorum of the commission gathered at the published meeting time and spent the session debating whether it could meet, that gathering itself was likely a "meeting" under FOIA. Minutes should have been kept.

What this means for you

If you sit on a South Carolina planning commission or other local board

You can do business with a simple majority of your authorized seats present, even if one or more positions are vacant. For a five-seat board, that means three members. For a seven-seat board, four. Local bylaws can require a larger quorum, but they cannot drop you below the common-law simple-majority floor.

When a member resigns, do not assume the seat is "empty" in a way that prevents the board from functioning. If the enabling statute says members serve until their successors qualify, the resigning member is treated as continuing in office for legal purposes. The body still has its full authorized membership for quorum math.

If you chair a local commission

Do not refuse to convene a meeting based on a perceived "below-minimum-members" problem unless your specific enabling statute makes that explicit (the planning commission statute does not). Refusing to meet can paralyze a town's land-use process and expose the commission to a writ of mandamus. The AG explicitly cited Rogers v. Coleman to flag that risk.

Even if you believe the body cannot legally act, if a quorum of members gathers at a scheduled meeting time to discuss that question, treat it as a meeting under FOIA. Keep minutes. The "we weren't really meeting" framing is unlikely to survive scrutiny.

If you are a town council member or attorney

You can require the planning commission to keep meeting and conducting business after a vacancy, so long as a quorum is present. If the commission refuses, Rogers v. Coleman contemplates mandamus relief to force the remaining commissioners to perform their duties.

When you draft a vacancy ordinance or set up a new board, decide explicitly whether you want a "holdover until successor qualifies" rule or a "seat is vacant on resignation" rule. The default under § 6-29-350(B) is holdover, which favors continuity but may leave a member in office longer than the council wants.

If you are a citizen attending or watching board meetings

Two things to know. First, the board can almost always proceed with fewer members than you might expect, so do not assume a vacancy stops the clock on a land-use decision in your neighborhood. Second, if the board gathers a quorum and discusses its authority, that is likely a public meeting and you have a right to attend and review minutes.

Common questions

Q: How many members of a five-seat South Carolina planning commission must show up for a valid meeting?
A: Three. The common-law simple-majority rule, codified for public bodies in S.C. Code § 30-4-20(e), controls unless a local ordinance sets a higher threshold.

Q: Our commissioner resigned. Is the seat vacant?
A: Under S.C. Code § 6-29-350(B), the resigning commissioner is treated as continuing to serve until a successor is appointed and qualified. Rogers v. Coleman makes this holdover mandatory, not optional.

Q: Can the chair refuse to call meetings because we are short a member?
A: Generally no, for a five-member planning commission. The chair's refusal in this case was the trigger for the opinion. If the commission has a quorum present, the chair's duty is to conduct business.

Q: Can the town council force the commission to meet?
A: The AG flagged mandamus as the remedy. A court can order commissioners to perform their statutory duties, including holding meetings, when refusal is causing a "stoppage of the public business."

Q: When a quorum gathers but does not vote, is that still a "meeting" under FOIA?
A: Likely yes. S.C. Code § 30-4-20(d) defines a meeting as a quorum convening "to discuss or act upon" matters within the body's jurisdiction. The commission's authority to meet is itself within its jurisdiction, so the discussion counts. Minutes are required.

Q: What if our bylaws define quorum differently?
A: Bylaws can require more members for a quorum than the simple-majority default. They cannot require fewer. The Six Mile Zoning Ordinance § 906.16 mirrors the simple-majority statute, which the AG noted is consistent with state law.

Background and statutory framework

South Carolina splits the rules for planning commissions across two main statutes. S.C. Code § 6-29-350 governs the structure of the commission itself: appointment, term, vacancies, and the size range (5 to 12 members for commissions serving up to two political jurisdictions). S.C. Code Title 30, Chapter 4 (the FOIA / Open Meetings law) governs how the commission must operate when it meets.

The Six Mile commission was created with five seats, the minimum permitted by § 6-29-350(A). When a member resigned, the chair read § 6-29-350(A) as saying the commission could not legally exist with fewer than five members on the books, and therefore could not meet at all.

The AG's analysis separated three concepts:

• Minimum appointed membership is set by § 6-29-350(A). That number controls how large the commission must be on paper, not how many must show up to a given meeting.
• Quorum is the number who must be present to act. South Carolina law (common law + § 30-4-20(e)) sets that at a simple majority of the authorized membership unless overridden by ordinance.
• Holdover under § 6-29-350(B) means the resigning member is treated as still in office, so the "authorized membership" stays at five for quorum math even after a resignation.

The opinion drew heavily on Williams v. Benet (1892) for the common-law quorum rule, State v. McMillian (2002) for the principle that no valid action can occur without a quorum, Garris v. S.C. Reinsurance Facility (1998) for the default simple-majority rule, and Rogers v. Coleman (1964) for the mandatory holdover effect when a statute uses "until their successors are appointed and qualified" language.

Citations

• S.C. Code § 6-29-350(A), (B), (C) (planning commission membership, vacancies, holdover)
• S.C. Code § 30-4-20(d) (FOIA "meeting" definition)
• S.C. Code § 30-4-20(e) (simple-majority quorum default)
• S.C. Code § 30-4-90(a) (written minutes)
• S.C. Code § 6-29-360(B) (commission record-keeping)
• Williams v. Benet, 35 S.C. 150, 14 S.E. 311 (1892)
• State v. McMillian, 349 S.C. 17, 561 S.E.2d 602 (2002)
• Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998)
• Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952)
• Rogers v. Coleman, 245 S.C. 32, 138 S.E.2d 415 (1964)
• Prior AG opinions: 2003 WL 21471510 (June 5, 2003); 2023 WL 5829051 (Aug. 30, 2023)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-local-planning-commission-quorum-requirements/
• Original PDF: https://www.scag.gov/media/dhqezpx5/mccormacm-os-11020-final-opinion-5-7-2025.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

May 07, 2025

Mary C. McCormac
Attorney at Law, LLC
Post Office Box 1535
Clemson, SC 29633

Dear Ms. McCormac:

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

Please accept this letter as a request for an opinion on behalf of the Town of Six Mile.

S.C. Code § 6-29-350(A) provides that planning commissions shall be made up of no less than 5 and no more than 12 members. The Six Mile Town Council has created 5 seats for its planning commission. Recently a planning commission member resigned. S.C. Code § 6-29-350(B) provides that in the event of a vacancy, the unexpired term of that vacancy must be filled in the same manner as the original appointments to the commission. It is fairly common that volunteer members of boards and commissions resign. This may happen for a variety of reasons, health, relocation, work demands, etc. As a practical matter, it can take some time to locate and appoint a qualified individual able and willing to serve, particularly in smaller municipalities. See, S.C. Code § 6-29-350(C).

The Six Mile Planning Commission has met at least twice since the resignation, and after lengthy discussions over whether it could conduct business with 4 members, decided at both meetings that it cannot have a meeting until a fifth member is appointed by Council. In the planning commission chair's words:

[T]he decision not to conduct a meeting was made pursuant to Section 6-29-350 of the South Carolina Code of Laws. The statute requires every local planning commission to have at least five appointed members. This is not a suggestion; it's a statutory requirement for the commission to be legally constituted. Without that minimum, we lack authority to meet, vote, or make recommendations to Council, regardless of how spirited our conversations might be.

(Emphasis in original). Further the chair noted:

The record of our last two scheduled meetings reflects this clearly. While quorum rules are typically governed by local bylaws, they only become relevant after the commission exists in the eyes of the law, which, again, requires five appointed members. Without that, there's no legal body, and thus, no official meeting to be held (and certainly no FOIA-triggering action to be memorialized in minutes). Although a few of us were present and engaged in informal discussion as citizens, not commissioners, the Planning Commission was not legally constituted at the time. Accordingly, no official meeting occurred, and no formal minutes were recorded. Our documentation reflects this, just as it should.

(Emphasis in original).

In accordance with this interpretation, the commission has refused to conduct business until a fifth member is appointed, and has refused to prepare minutes of the two meetings. In light of the disruption to Town planning matters resulting from the planning commission refusing to conduct business until the Council is able to appoint a fifth member:

1. May a planning commission or other municipal board meet and consider business following the resignation of a member, as long as a quorum is present?

[As far as a quorum, Section 906.16 of the Six Mile Zoning Ordinance states that a "[s]imple majority of the number of members shall constitute a quorum of this Commission for transacting business and taking official action." This echoes the simple majority language set forth in S.C. Code § 30-4-20(e).]

2. In light of prior opinions and case law relating to whether a resignation is effective until a replacement is qualified and appointed, would a resigning appointed member of the office of planning commissioner be considered to continue to serve, whether de jure or de facto, until replaced?

(See, S.C. Attorney Ops. dated July 2, 2012; January 29, 2007; August 7, 1996; Bradford v. Byrnes, 221 S.C. 255, 262, 70 S.E. 228 (1952) ("[I]n the absence of pertinent statutory or constitutional provision, public offices [sic] hold over de facto until their successors are appointed or elected and qualify.")

3. May a municipal council require that a board or commission continue to meet and conduct business after a member resignation, as long as it continues to have a quorum present at its meetings?

4. Would the meetings of a quorum of a board or commission at published dates and times for meetings, consisting of in depth discussions about South Carolina law, as described above, along with making decisions regarding the ability to meet or conduct business until an additional member is appointed, constitute meetings under S.C. Code § 30-4-20(d)?

("'Meeting' means the convening of a quorum of the constituent membership of a public body, whether corporal or by means of electronic equipment, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.")?

5. If so, should minutes be prepared for those meetings in accordance with S.C. Code §§ 6-29-360(B) and 30-4-90(a)?

Law/Analysis

1. May a planning commission or other municipal board meet and consider business following the resignation of a member, as long as a quorum is present?

It is this Office's opinion that a local planning commission that has been established with five members may hold meetings and conduct business with a quorum, a simple majority, of those members. Such a commission may hold a meeting with as few as three members present. As your letter states, section 6-29-350(A) permits local planning commissions "serving not more than two political jurisdictions [to be formed with] not ... less than five nor more than twelve members." While the statute does not permit less than five members, that does not mean a commission cannot call a meeting with less than five members present.

This Office previously opined on the county boards of voter registration and elections which are similarly structured bodies that can be established with a range of five to nine members. Op. S.C. Att'y Gen., 2023 WL 5829051 (August 30, 2023). Therein, we discussed why the public bodies are permitted to meet and conduct their business with less than the total membership present.

In Williams v. Benet, 35 S.C. 150, 14 S.E. 311 (1892), the South Carolina Supreme Court expressed that the purpose of a quorum requirement is to allow a public body to conduct its business with less than the entire membership present.

The very purpose in providing for the transaction of business of any given body or tribunal by a quorum is to prevent the stoppage of the public business when a portion of the whole membership may, from any cause, fail to attend at the time appointed; and whether such failure results from death or some temporary cause cannot affect the question.

14 S.E. at 312.; see also State v. McMillian, 349 S.C. 17, 20, 561 S.E.2d 602, 603 (2002) ("This Court has recognized that no valid act can be done in the absence of a quorum."). The Court also held that the common law requires the presence of a simple majority of the membership of a public body to constitute a quorum.

In the absence of any statutory or other controlling provision, the common-law rule that a majority of a whole board is necessary to constitute a quorum applies, and the board may do no valid act in the absence of a quorum. A member who recuses himself or is disqualified to participate in a matter due to a conflict of interest, bias, or other good cause may not be counted for purposes of a quorum at the meeting where the board acts upon the matter.

Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 453, 511 S.E.2d 48, 59 (1998) (citations omitted). ... When five members are appointed, the statutory minimum required by S.C. Code § 7-5-10(A)(1), the minimum number of members who must be present to constitute quorum and validly conduct such a board's business is three. See State v. McMillian, 349 S.C. 17, 20, 561 S.E.2d 602, 603-04 (2002) ("This Court has recognized that no valid act can be done in the absence of a quorum.").

Id. at 8-9 (footnote omitted). Here, Article 1, Chapter 29 of Title 6 concerning the creation of local planning commissions does not vary the quorum requirement, so such commissions' quorum requirements are "a simple majority of the constituent membership." S.C. Code § 30-4-20(e). Therefore, when a local planning commission is formed with five members, the minimum number of members who must be present to constitute a quorum and validly conduct business is three.

2. In light of prior opinions and case law relating to whether a resignation is effective until a replacement is qualified and appointed, would a resigning appointed member of the office of planning commissioner be considered to continue to serve, whether de jure or de facto, until replaced?

Section 6-29-350(B) states members of a local planning commission "serve until their successors are appointed and qualified."

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.

Op. S.C. Att'y Gen., 2003 WL 21471510, at 2 (June 5, 2003). Therefore, a commission member continues to serve in a de jure capacity even when they hold over beyond their appointed term.

In Rogers v. Coleman, 245 S.C. 32, 138 S.E.2d 415 (1964), the South Carolina Supreme Court held that when a statute requires an officer to serve until his successor is qualified resignations have no effect, and the commissioners were required to continue in office.

The foregoing statute provides that officers qualified thereunder "shall continue in office until their successors are appointed and qualified." The legislative intent to make provision against a situation where there would be no qualified commissioners to conduct and hold elections is clear. A proper interpretation of the statute makes it mandatory on the part of election commissioners to serve until their successors are appointed and qualify. Therefore the attempted resignation[s] of these respondents was of no effect and their tenure in office, together with the duties and responsibilities thereof, must be held to continue, since no successors have qualified. This is in accord with the general rule that a public officer does not cease to be such even when his resignation is accepted, but continues in office until a successor is qualified where the statute or Constitution so provides.

Id. at 34, 138 S.E.2d at 417. Apply the holding in Rogers to the present scenario, the member who resigned their position on the local planning commission would still be considered to hold office until a successor is qualified.

3. May a municipal council require that a board or commission continue to meet and conduct business after a member resignation, as long as it continues to have a quorum present at its meetings?

A court can issue a writ of mandamus requiring commission members to carry out the duties of their office as imposed by law. In Rogers v. Coleman, the Court held that commission members were "clothed with the authority and responsibility to perform the duties imposed by law," and even "[i]n the event of the total disability of any one of said Commissioners, the remaining members shall perform such duties." Id. at 35.

4. Would the meetings of a quorum of a board or commission at published dates and times for meetings, consisting of in depth discussions about South Carolina law, as described above, along with making decisions regarding the ability to meet or conduct business until an additional member is appointed, constitute meetings under S.C. Code § 30-4-20(d)?

The convening of a quorum of the membership of a public body "to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory power," is a meeting according to the South Carolina Freedom of Information Act. S.C. Code § 30-4-20(d). The scenario posed appears to describe the membership discussing their authority to meet to perform the duties of their offices. Certainly, the elements of convening a quorum and discussion are present. The remaining question is whether the topic discussed is "a matter over which the public body has supervision, control, jurisdiction or advisory power." Id. A court would likely hold a discussion of whether the law authorizes the body to meet pertains to the public body's jurisdiction. While the determination ultimately will depend on the facts in a given case, out of an abundance of caution, such a gathering should be treated as a "meeting" under the S.C. FOIA.

5. If so, should minutes be prepared for those meetings in accordance with S.C. Code §§ 6-29-360(B) and 30-4-90(a)?

Assuming the above scenario is found to be "meeting" under the S.C. FOIA, the commission would be required to record minutes of the meeting. See S.C. Code § 30-4-90(a) ("All public bodies shall keep written minutes of all of their public meetings."); S.C. Code § 6-29-360(B) ("The commission shall ... keep a record of its resolutions, findings, and determinations, which record must be a public record.").

Conclusion

As is discussed more fully above, it is this Office's opinion that a local planning commission that has been established with five members may hold meetings and conduct business with a quorum, a simple majority, of those members. Such a commission may hold a meeting with as few as three members present.

Sincerely,
Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General