Could South Carolina’s lieutenant governor suspend a senator for an earlier misdemeanor indictment?

Plain-English summary

The lieutenant governor asked whether he could suspend a senator following indictment for offenses described in an ethics statute. Based on the facts reported to the AG, the offenses occurred in the 1980s, were misdemeanors, and had led to a guilty plea. The AG concluded that the lieutenant governor had no authority to suspend this senator under the provisions he examined.

The opinion gave two separate reasons. The ethics statute applied to transactions after December 31, 1991, so it did not reach the earlier conduct described. The Senate rule then discussed felonies and election-law offenses; the AG understood the offenses here to be neither. The rule also placed suspension after a covered guilty plea with the Senate's president pro tempore, rather than with the lieutenant governor. The AG expressly deferred to the Senate's interpretation of its own rules.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the ethics statute authorize suspension for the conduct described?
No. The AG said the statute applied only to transactions after December 31, 1991, while the offenses described to him occurred earlier.

Did the possible five-year sentence make the reported misdemeanor a felony under the Senate rule?
The opinion did not reclassify the offenses. It accepted the understanding that they were misdemeanors and said the rule on its face covered felonies or election-law offenses.

Who did the Senate rule name for suspension after a covered guilty plea?
It named the Senate president pro tempore, not the lieutenant governor. The AG also noted that the rule did not appear to reach the offenses described.

Did the AG decide how the Senate itself must read its rules?
No. He stated that the office deferred to the Senate's interpretation of its own rules, while explaining how the rule appeared on its face.

Background and statutory framework

Section 8-13-560 addressed suspension of a legislator indicted for specified offenses, subject to House or Senate rules. The act's effective-date clause limited its reach to later transactions. The letter compared that provision with Senate Rule 45.1 and the former ethics statute, which concerned felonies and election-law offenses. On the stated facts, the AG found neither source gave the lieutenant governor authority to suspend this senator.

Citations and references

• Section 8-13-560: the post-1991 suspension provision examined.
• Senate Rule 45.1: the rule assigning covered suspension decisions to the president pro tempore.

Official title

Concerning a Lieutenant Governor possessing the authority to suspend a member of the Senate upon indictment for a crime enumerated in Section 8-13-560.

Requester

The Honorable Nick A. Theodore, Lieutenant Governor, State of South Carolina

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-29-1994/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1994sept29theodore.pdf

Original opinion text

WIJ.e ~at.e nf ~nutlt Qtarnlina

m. mrau1s fllrlllnck
.Attnr11r11 Cirnrral

BD3·734-397D

.Attnrneu Cl .eneral

<ltnlumbta 29211

September 29, 1994

The Honorable Nick A. Theodore
Lieutenant Governor
State of South Carolina
Post Office Box 142
Columbia, South Carolina 29202
Dear Lieutenant Governor Theodore:
You have asked that we confirm by official opinion our verbal opinion announced some time ago as to whether you as Lieutenant Governor possess the authority to suspend a member of the Senate upon indictment for a crime enumerated in Section 8-13-560. Section 8-13-560, part of "The Ethics, Government Accountability and Campaign Reform Act of 1991 " provides in pertinent part: Unless otherwise currently or hereafter provided for by House or Senate rule as is appropriate: A member of the General Assembly who is ( 1) indicted in a state court or a federal court for a crime that is a felony, a crime that involves moral turpitude, a crime that has a sentence of two or more years, or a crime that violates election laws must be suspended immediately without pay by the presiding officer of the House or Senate, as appropriate. The suspension remains in effect until the public official is acquitted, convicted, pleads guilty, or pleads nolo contendere. In the case of conviction, the office must be declared vacant. In the event of an acquittal or dismissal of charges against the public official, he is entitled to reinstatement and back pay. (Emphasis added).

The Honorable Nick A. Theodore
Page 2
September 29, 1994
It is our understanding that the member in question was indicted for and pied guilty to certain federal offenses committed in the 1980's. It is also our understanding that these offenses in question were misdemeanors, carrying with them a sentence of up to 5 years.

However, Section 8 of the Act provides in pertinent part:

I
I

Except as otherwise provided, this act governs only transactions which take place after December 31, 1991. Thus, the transactions in question occurred prior to the effective date of the Act. Accordingly, Section 8-13-560, by its own terms, is clearly inapplicable. Cf. State v. Thrift, 440 S.E.2d 341 (1994). For at least two reasons, you also do not possess authority under the governing Senate Rule. Current Senate Rule 45.1 provides that (b) A member who enters a plea of guilty or nolo contendere to ... [a felony or offense against the election laws] must be suspended by the President Pro Tempore immediately, without a hearing and without pay, from all privileges and membership of the Senate through the remainder of that member's term. In addition, the Senate Ethics Committee shall recommend expulsion of such member in accordance with Section 12 of Article III of the Constitution of this State. It appears this Rule governed at the time of the transactions in question. Of course, while we defer to the Senate's interpretation of its own Rules, it does not appear on its face that the Rule is applicable to crimes other than felonies or those against the election laws. As we understood it, at the time the offenses were committed, these offenses were misdemeanors.

Moreover, the Rule expressly places the authority of suspension in the hands of the President Pro Tern of the Senate, not the President. While the Rule does state in Section (d) that the "action provided for in subsections (a), (b) and (c) of this rule is in addition to any action provided by law ... ", as noted earlier, Section 8-13-560 is applicable only to transactions occurring after December 31, 1991. Moreover, former Section 8-13-260 of the old Ethics Act, in existence at the time of the offenses, see State v. Thrift, supra, states that "[n]otwithstanding any other provision of this article, in the event a member of the Senate is indicted, informed against, pleads guilty or nolo contendere to, or is convicted of, a felony or offense against the election laws, the Senate may take

The Honorable Nick A. Theodore
Page 3
September 29, 1994
disciplinary action as provided by Senate rule." (emphasis added). In short, both the applicable Senate Rule and the governing statute dealing with indictment for or conviction of criminal conduct by Senate members, spoke only to felonies or crimes against the election laws. It did not encompass misdemeanors. This Office cannot create law which does.. not exist . Accordingly, as we have already verbally stated, it is our opinion that you as Lieutenant Governor possess no authority to suspend the member in question. With kindest regards, I am

. Travis Medlock
Attorney General
TTM/an

I