Mayor and Council of the Town of James Island are elected to a four year term. The South Carolina Code only allows mayors and municipal councils to have either two or four year terms of office. Town ordinances cannot substitute any other term of office.
The South Carolina Code also requires that an incorporation election include a question regarding the term of office for mayor and council. The result of the 2012 incorporation election was a four year term. The South Carolina Code also requires that regardless of what the voters select, the Mayor and Council initially elected serve a two year term. After the Mayor and Council initially elected on July 29, 2012 completed their two year terms, the terms in the Town of James Island became four years.
In my opinion, Council cannot override the decision of the voters by ordinance. If Mayor and Council decide that two year terms are better than four year terms, then all they can do is call for a referendum on that question and the voters would decide to continue with four year terms or switch to two year terms. However, neither Council nor the voters may select other terms of office--one year, three years, five years, or ten years. Unless the SC Legislature modifies the law, the only two options are four years and two years and the choice must be made by referendum by the voters.
The South Carolina Code empowers municipal Councils to set the date of election by ordinance. It is a mistake to assume that by setting dates for an election, Council has somehow obtained the power to change the length of the term of office as it sees fit. If the date of the election is set before the terms of office are complete, then the incumbents still serve until the end of their terms. If they were replaced in the election, then they are what is sometimes called "lame ducks" for a time. In South Carolina, there are many elections in November of even years while the terms of office of the incumbents only end in January of the next year and anyone newly elected takes office at that time. The notion that holding an early election necessarily implies that terms of office are cut short is absurd.
If the date of the election is after the terms of the incumbents are complete, this might appear to create a time when a municipality has no governing body. For a municipality with a mayor-council form of government, it might appear to create a period where there is no executive either. Fortunately, municipalities typically have ordinances that provide that the incumbents remain in office until the election of their replacements is certified. The term of office is not extended, but rather an incumbent continues to serve after the term of office is complete.
I don't believe the power of Council to set the date of elections is unlimited. I don't believe that a Council whose terms have already expired would be authorized to change the date of an upcoming election in a way that would postpone the election and extend the period for which they are serving beyond their terms. Further, while I believe that the courts owe substantial deference to the elected Council in determining an appropriate election date, some rational basis for the date other than to allow the existing council to serve beyond their completed terms of office is necessary.
The possibility of abuse of the power to set election dates after the terms of office are complete can be avoided by having Council make the decisions not for their own term of office but rather for the subsequent election. For a new municipality, with the Mayor and Council elected for an initial two year term, that initial Council can determine a regular election cycle that will apply to whomever is elected to replace them and begin the terms of office whose lengths were set in the initial referendum.
That is exactly what was done by the Town of James Island. In April of 2014, the Council initially elected for a two year term in 2012 passed an election ordinance that shifted our election cycle from late July/early August of even years to the first Tuesday in November of odd years. The intention was for those elected in the summer of 2014 to complete their four year terms and then continue in office until their replacements are certified in November of 2019. Council did not vote to change the term of office to something different from four years, because it had no authority to do so. The only other choice under SC law is two years, and that would require a referendum.
The Council elected in 2012 did not vote to change the election date in order to allow themselves to serve a period beyond the completion of their two year terms. Rather, they made a decision for those elected in the summer of 2014 to serve an additional time beyond the completion of their term of office in order to allow for a permanent shift of the election cycle to November of odd years.
The notion that the Town's current election law requires that elections be held in every November of an odd year, with Mayor and Council being replaced every two years is absurd and frivolous. This would effectively create two year terms without a referendum. Further, the notion that the ordinance required an election of Mayor and Council in November of 2015, creating the potential for a lame duck period until the terms of office are complete in the summer of 2018 is equally absurd. The voters are supposed to choose the Mayor and Council to take office in the summer of 2018 in November 2015? Would the Mayor and Council serving from 2022 to 2026 be elected in November of 2017? Would those elected in 2019 serve from 2026 to 2030?
It would not have been absurd for Council to have intended that there be an election in November of 2017, with the Council and Mayor elected at that time taking office approximately nine months later on August 1, 2018. There is nothing unusual about holding an election somewhat before the term of office are complete. However, nine months is an unusually long lame duck period and so should create some skepticism about any such interpretation.
In 2010, the Mayor of the Town of James Island was not not reelected and served as a lame duck during most of August. During that period, the Mayor expended substantial sums of money, including checks written for the maximum that could be authorized by the Mayor to a new organization, the Sea Island Chamber of Commerce, run by her daughter. This led to a federal investigation, though no violation of federal law was found. Due to that experience, I favor a short lame duck period.
Of course, having written the ordinances in question and discussed and debated them with Council, I know exactly what was intended and understood by Council when approved. The next election is to be held on the first November of an odd year after the terms of office of those elected in 2014 have expired.
Further, the creation of an unusually long lame duck period, of nine months rather than the more common two months, would be a permanent feature of the new election system, rather than a one time feature of the transition. Those elected in November of 2017 would take office in early August of 2018 and then serve until early August of 2022. If their replacements were elected in November of 2021, there would again be an unusually long lame duck period and so on, until Council fixes the problem.
What Council did intend was that after the one time period where the Council and Mayor elected in 2014 will serve after their terms are complete in August 2018 until their replacements are elected in November of 2019, the future terms of office will run close to the times of the elections and there will be at most a few days where Council or Mayor have a lame duck status. The Council and Mayor elected in 2019 will take office as soon as the election results are certified. Their terms will end a few days after the election in November of 2023, when the newly elected Mayor and Council will take office.
The current Council and Mayor have not taken action to extend their time in office beyond their terms by changing the date of the election. That was done before they were elected in 2014. While I was reelected along Councilmen Blank and Mullinax, we did not know that this ordinance would apply to us when we voted for it. It could well have applied to our opponents in the 2014 election.
Was there a rational basis for shifting the date of the next election to November 2019? The Town signed an intergovernmental agreement with the County to have the County Election Commission manage our elections in 2014 and in the future. While the Election Commission staff was willing to hold an election in the summer of 2014, this is a very bad time for them because they have just finished the primaries and are already starting on the November general election.
Moving our date back to, say June, so that we have no more than a reasonable lame duck period, was impossible because of the primary elections. My preference was November of even years which would have created a short, one time transition between when terms of office ended in the summer of 2018 and when the new officials would be elected and take office in November 2018. My key consideration was an increased turnout for Town elections. The County Election Commission staff would not agree because the general election ballot is already long and complicated with many different overlapping districts. They didn't want to add ours too.
They recommended November of odd years, which is a time that they are promoting as a municipal election day. I agreed because I think there is a chance we will improve turnout if everyone knows it is municipal election day and also I hope that our share of the costs will be lower than the total cost of running a unique Town of James Island election. However, the County Election Commission staff would have no problem if we chose to hold elections in the spring of either odd or even years. There are other municipalities that have their own unique election times. They just encourage the common "municipal election day."
My initial proposal in 2014 included staggered terms. My reading of the South Carolina code is that municipalities may, by ordinance, create staggered terms by providing for half of the members of council to have two year terms for one time, and then have four year terms after. This only applies if the voters chose four year terms by referendum. If the voters chose two year terms, the SC code says they cannot be staggered.
My approach would have been for the two candidates with the least votes in the summer of 2014 election to receive two year terms and then they would continue to serve after their terms were up in the summer of 2016 until the election of November of 2017. Their replacements would then take office and serve four year terms The Mayor and two members of Council with the most votes in 2014 would have their four year terms up in the summer of 2018, but would continue to serve until November of 2019 and then their replacements would take office.
My initial proposal, then, would have the two members of council elected and taking office in November of 2017 would have four year terms up at the time of the November 2021 election and the Mayor and members of Council elected and taking office in November of 2019 would complete their terms at the time of the 2023 election.
This proposal resulted in substantial push back from members of Council in 2014. It was said that the voters choose four year terms in the referendum, and we should not create two year terms for any member of Council, even if those elected would serve beyond their terms for a total time in office of a bit more than three years. I didn't agree that we needed a referendum to apply this provision of the SC Code, but I was convinced that a better approach would be to wait to see if the Town was reunited and expand the size of Council to six seats so that the new residents (and the old ones too) could promptly vote for two new members of Council. The SC Code requires a referendum to expand the size of Council. Depending on the timing, we would figure out a way to get them on the 2017, 2021 cycle and so create staggered terms.
I am still open to creating staggered terms by ordinance, but I am opposed to retroactively shortening the terms of any current member of Council and putting their seat up for election in 2017. Any such change should apply to those elected in November 2019. However, right now, I think we should wait to see if we can annex the unincorporated area and reunite the Town, and if so, hold a referendum to expand Council to six seats and allow all the voters of the Town, both those now in the Town and those that are returned, to elect those two new members right away and at the same time, create staggered terms.
I think any ordinance to shorten the current terms of office of the Mayor and all members of Town Council by putting them up for election in November of 2017 is illegal. I oppose holding an election in November in 2017 for the Mayor and Council with those elected taking office in the summer of 2018. It would permanently create an unusually excessive lame duck period. And frankly, having the current council make drastic changes in their own planned election date smacks of abuse of power for political advantage.
Yes, the Prime Minister of Great Britain has just called a snap election, and the pundits expect that she will win in a landslide because her opponents are especially weak. Guess what? We don't live in Great Britain but rather in South Carolina.
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