It was brought to my attention that the South Carolina Attorney General's Office gave an opinion in 2005 on the question of shortening terms of office regarding the Town of Mount Pleasant's shift in election dates. I have reviewed that and earlier opinions.
I was aware of Attorney General Opinions that argued that a municipality may set an election date and allow members of Council and the Mayor to serve beyond the two or four year term set by statute. I reviewed at least one in 2014 when this matter was before Council.
I was unaware or had forgotten that the South Carolina Constitution states that elected officials continue to serve until their successors are elected and qualified. The Town's ordinance to that effect is not really necessary.
I think the AG opinion is correct in that Council may not expressly change the length of term of office to reflect any change in the date of the election. An ordinance stating that a term of office will be three years and three months or five years and three months would be inconsistent with the SC Code.
As I read the opinions that stated that Council could by ordinance shorten terms by changing the election date, I was puzzled that the reason given was only that it was for the same reason that they could be extended. To me, that is plainly not correct. The provision of the South Carolina Constitution that elected officials continue to serve until their successors are elected and qualified provides for continuity in government and not a blanket authority to call elections at any time and cut short existing terms.
One Attorney General's Opinion cited another. The 1989 opinion that argued that a shortening of terms would be legal referred not to a change in the date of an election but rather a reduction in the "lame duck" period by moving the time those elected to office in Beaufort were sworn in from early July to shortly after the election in May. A more or less standard two month delay was shortened to a week. That seems like good policy to me. But was it legal? Supposedly, the home rule amendments to the South Carolina Constitution allows municipalities to set any term they like!
Was there some argument for that claim? Not really. In 1980, the Attorney General's Office was asked about extending terms in Maudlin and opined that whoever creates an office can set its term and because of the home rule amendments to the South Carolina Constitution, local governments appear to be free to do as they like.
It is certainly correct that the opinion given as to why Maudlin can extend terms would imply that terms can be shortened as well. Still, I would not want to depend on that opinion. It seems to be a claim that the statute setting municipal terms at two and four years is an unconstitutional violation local home rule. Oddly enough, the 1980 decision did not even mention the statutory terms of two or four years.
The later Attorney General opinions are inconsistent with that earlier opinion since they argue that municipalities cannot expressly set their terms at anything other than the two or four years set by the legislature, citing a 1976 ruling by the Supreme Court that municipalities are creatures of state government.
How can the two statutes--one allowing municipalities to set election dates and the other setting terms at two and four years--be consistent? If a municipal council moves the election to an earlier date, the result is that the incumbent continues until the term set by statute is complete, perhaps as a lame duck. If the election is held after the term is complete, then the constitutional provision that officers serve until their successors are elected applies. The statutory term commences whenever the new candidate is elected and qualified.
The South Carolina Constitution does provide that all statutes be liberally construed in favor of the powers and responsibilities of local government. I favor local government autonomy and in general think that the SC legislature interferes too much. However, the South Carolina courts have not read this provision of the South Carolina Constitution anything like what was suggested in the 1980 Attorney General's Opinion. I would not be confident that a municipality would succeed against a challenge by a local elected official whose term determined by statute and referendum by voters was cut short by a change in the election date.
Regardless, I think that having the next election as intended when the ordinances were passed by the initial Council elected in 2012, that is, in November of 2019, after the four year terms are complete, is the best approach. Having the current Council vote to move the election forward by two years and shorten the terms by nine months would be the wrong thing to do.
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