What did Aiken County have to disclose and how did it appoint its elections executive director in 1998?

Plain-English summary

A legislator asked how to fill the impending vacancy for executive director of Aiken County's Registration and Election Commission. The Attorney General answered three questions. Under a 1998 FOIA amendment, the delegation had to make materials relating to at least the final three applicants available on request and disclose the number of applicants considered. The quoted law excluded tax returns, medical records, Social Security numbers and other exempt information from those final-applicant materials.

The appointment provision required a majority vote of Aiken County's senators and a separate majority vote of its House members. A simple majority of the combined delegation was insufficient. The delegation chair could not fill a vacancy without following those voting requirements, even if a suitable applicant had not been found before retirement.

Currency note

This opinion was issued in 1998. 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

Q: Were all applicants' files required to be public?
A: The opinion said materials for at least the final three applicants had to be available, with specified private and otherwise exempt material excluded. The delegation also had to disclose the number of applicants considered.

Q: Could a combined majority of the legislative delegation appoint the director?
A: No. The opinion read the appointment act to require a separate majority among Aiken County senators and among Aiken County representatives.

Q: Could the delegation chair make an interim appointment alone?
A: The opinion found no authority for the chair to appoint the executive director without the required Senate and House votes.

Background and statutory framework

The executive-director post had been established by Act No. 182 of 1991. The request arose after notice of the opening and receipt of applications. The opinion applied Act No. 423 of 1998's FOIA amendment to applicant records and the earlier act's voting rule to appointment and removal.

Citations and references

• Section 30-4-40, the FOIA provision amended in 1998 and quoted in the opinion.
• Act No. 182, Section l(E), the appointment rule quoted in the opinion.

Official title

Informing that the position of Executive Director of the Aiken County Registration and Election Commission will become vacant upon the December retirement of the present executive director.

Requester

The Honorable J. Roland Smith, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-30-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/98sept30smith.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M . CONDON
ATTORNEY GENERAL

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September 30, 1998

The Honorable J. Roland Smith
Member, House of Representatives
183 Edgar Street
Warrenville, South Carolina 29851
Dear Representative Smith:

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Your opinion request has been forwarded to me for reply. You have informed this Office that the position of Executive Director of the Aiken County Registration and Election Commission will become vacant upon the December retirement of the present executive director. Notice of the position opening was posted for receipt of applications and resumes in July and these applications are now on file in the County Delegation office. You have asked three questions concerning the appointment of an individual to the position of executive director. The position of executive director of the Registration and Elections Commission was established by Act No. 182 of 1991. The executive director reports directly to the Chairman of the County Legislative Delegation. The job description of this position provides the executive director is responsible for planning, directing, coordinating and certifying all primary, general and special elections for the county. The executive director also supervises staff, plans the activities and directs the daily operations of the Department of Registrations and Elections. Question 1 How much information, if any, regarding the applications should be made available to the public and/or the media. The Aiken County Legislative Delegation is considered a public body for purposes of the Freedom of Information Act. See, Ops. A!:!y. Gen. dated September 13, 1995,

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PosT OFFICE Box 11549

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COUJMBIA.

s.c. 29211-1549

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T ELEPHO!'iE: 803-734-3970

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FACS l ~flLE: 803-253-6283

The Honorable J. Roland Smith
Page 2
September 30, 1998
April 15, 1986 and September 6, 1984. The General Assembly has recently amended the Freedom of Information Act to include a provision regarding the disclosure of employment applications by a public body. Act No. 423 of 1998. This amendment, which alters Section 30-4-40 of the South Carolina Code of Laws, reads as follows: (a) "A public body may but is not required to exempt from disclosure the following information:" "() All materials, regardless of form, gathered by a public body during a search to fill an employment position, except that materials relating to not fewer than the final three applicants under consideration for a position must be made available for public inspection and copying. In addition to making available for public inspection and copying the material described in this item, the public body must disclose, upon request, the number of applicants considered for the position. For purposes of this item 'materials relating to not fewer than the final three applicants' do not include an applicant's income tax returns, medical records, social security number, or information otherwise exempt from disclosure by this section." As you can see, the Legislative Delegation is now required to disclose, upon request, materials relating to not fewer than the final three applicants under consideration for the position of executive director. However, as set forth by the statute, these materials do not include and, thus, the Legislative delegation is not required to disclose, information concerning these applicants' income tax returns, medical records, social security numbers or other information otherwise exempt from disclosure by Section 30-4-40. The Legislative Delegation must also disclose the number of applicants considered for the position. Question 2
[P]lease provide, in writing, a statement detailing the breakdown of votes required to fill the vacancy (does it require a majority of the Delegation to approve the appointment or does it take a majority of the Senators and a majority of the Representatives). Act No. 182, Section l(E) provides as follows: The executive director shall be appointed and may be removed by a majority vote of the Senators and a majority vote of the members of the House of Representatives representing Aiken County.

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The Honorable J. Roland Smith
Page 3
September 30, 1998
According to the clear language of the Act, in order to be properly appointed, the executive director must receive a majority vote of the Senators and a majority vote of the Representatives representing Aiken County. The Act does not call for, nor allow, a majority vote of the Legislative Delegation as a whole. Question 3

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[P]lease provide, in writing, an opinion as to the legality of the Chairman of the Delegation appointing someone to fill the vacancy should a suitable applicant not be found prior to the current employee's retirement. Act No. 182 sets forth the method of appointment for the executive director. As previously stated, the Act provides that the executive director shall be appointed by a majority vote of the Senators and a majority vote of the members of the House of Representatives representing Aiken County. The Act does not contain a provision permitting the Chairman of the Delegation to make the appointment without first having the approval of the Senators and House members as set forth in the Act. Therefore, unless the appointment procedures of the Act are first followed, the Chairman of the Delegation would not have the authority to appoint the executive director. With kindest regards, I remain

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Paul M. Koch
Assistant Attorney General

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