Could a South Carolina legislative delegation fill a technical college commission vacancy without a public meeting during the COVID-19 pandemic?

Plain-English summary

South Carolina's Attorney General concluded in April 2020 that vacancies on the Technical College of the Lowcountry Area Commission had to be filled by the governor after a recommendation from a majority of the affected county's legislative delegation. Section 59-53-910 required the same process for vacancies as for original appointments. The opinion found no authority for a delegation chair or the governor to make an interim appointment outside that process.

The delegation had to act together with a quorum. Because a legislative delegation was a public body under South Carolina's Freedom of Information Act, its meeting also had to satisfy the Act's open meeting rules. The opinion said an electronic meeting was possible during the pandemic if the delegation's own rules did not require a particular physical location and the delegation gave the required public notice.

Currency note

This opinion was issued in 2020. 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: Could a delegation chair appoint an interim commissioner before the delegation met?
A: The opinion found no statute authorizing an interim appointment. It read Section 59-53-910 to require a recommendation from the relevant county delegation and an appointment by the governor even when a seat was vacant.

Q: Did every delegation member have to be physically present to recommend a commissioner?
A: The AG said the delegation had to act collectively with a quorum, but could meet by electronic means if its rules did not require a physical location. The opinion did not dispense with public notice or the other open meeting requirements.

Q: Was a private telephone call enough to fill a vacancy?
A: No. The opinion treated the delegation as a public body subject to FOIA. An electronic meeting still had to comply with the Act, including its notice requirement.

Background and statutory framework

Representative Jeff Bradley asked how the commission could replace two departing members during COVID-19 without an in-person delegation meeting. Section 59-53-910 set the appointment process and required a vacancy to be filled in the same manner as the original appointment. The AG also relied on the rule that a political body acts collectively and on FOIA's definition of a meeting, which included a quorum convened by electronic equipment.

Citations and references

• Section 59-53-910 of the South Carolina Code: college commission appointments and vacancies.
• Sections 30-4-20(d), 30-4-60 and 30-4-80 of the South Carolina Code: electronic meetings, public access and notice, as discussed in the opinion.

Official title

Addressing appointments to the Technical College of the Lowcountry Commission.

Requester

The Honorable Jeff Bradley, Member, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-27-2020-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/05/BradleyJ-OS-10478-FINAL-Opinion-4-27-2020-MILLING-02266348xD2C78.pdf

Original opinion text

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

•SOUTli
Alan Wilson
Attorney General

April 27, 2020

The Honorable Jeff Bradley
Member
South Carolina House of Representatives
306B Blatt Bldg.
Columbia, South Carolina 29201

Dear Representative Bradley:

We received your request for an opinion regarding appointments to the Technical College of the Lowcountry. From your letter, we understand you have two members who wish to leave the Commission for the Technical College of the Lowcountry. Further, you state as follows:

In light of the COVID-19 pandemic, I respectfully request an opinion relative to some type of interim appointment that we could make. I am very cognizant and appreciative of the Public process by which these commission appointments are to be made. However,in light of the current pandemic extraordinary steps may need to be taken in order to fill these vacancies prior to a Delegation meeting at which time a commission appointment could be made. As Delegation Chair I could greatly benefit from an understanding of what we as a delegation are able to do in the absence of a public meeting relative to appointing Technical College of the Lowcountry commission board members or interim board members."

Law/Analysis

Section 59-53-910 of the South Carolina Code (2020) governs the appointment of members to the Technical College of the Lowcountry Area Commission (the "Commission"). This provision states:

There is created the Technical College of the Lowcountry Area Commission which shall serve as the governing body of the Technical College of the Lowcountry. The commission is a body politic and corporate consisting of seven members who must be appointed in the manner provided in this section.
Four members must be residents of Beaufort County, one member must be a resident of Colleton County, one member must be a resident of Hampton County, and one member must be a resident of Jasper County, all of whom must be appointed bv the Governor upon the recommendation of a maioritv of the members of the General Assemblv representing that county. The members

ILEMBERT C.Dennis Building . Post Office Box 11549 » Columbia,SC 29211-1549 . Telephone 803-734-3970 . Facsb^ile 803-253-6283

The Honorable Jeff Bradley
Page 2
April 27, 2020

of the commission must be appointed for terms of four years each and until their successors are appointed and qualify.

A vacancy must be filled in the manner of the original appointment for the unexpired portion of the term only. The commission shall organize by electing one of its members as chairman, one as vice-chairman, and one as secretary. The terms of appointees expire on the first of July of the appropriate year.

(emphasis added).

Section 59-53-910 clearly mandates the method of appointing members to the Commission and requires appointments by the governor upon the recommendation of a majority of the members of the respective county's delegation. This provision does not give the delegation or the governor the authority to make appointments outside of the procedures provided. Additionally, we did not find any other provision allowing for "interim" appointments. Therefore, we believe appointments to the Commission may only be made by the governor upon the recommendation of the delegation.

Furthermore, making a recommendation requires collective action by the delegation. As we determined in a 1 984 opinion, the powers and duties of political bodies may not be exercised by their individual members, but must be exercised collectively in a meeting. Op. Att'v Gen.. 1 984 WL 159918 (Sept. 6, 1984). This understanding of the common law is supported by the Supreme Court's decision in In re Matthews. 345 S.C. 638, 646, 550 S.E.2d 311, 314-15 (2001) quoting Garris v. Governing Bd. of the State Reinsurance Facility. 333 S.C. 432, 453, 511 S.E.2d 48, 58 (1998), '"In the absence of any statutory or other controlling provision, the common-law rule that a majority of the whole board is necessary to constitute a quorum applies, and the board may do no valid act in the absence of a quorum.'" Absent a statutory amendment, we believe the delegation must act collectively to recommend an individual for a position on the Commission.

Additionally, as you alluded to in your request, the delegation must comply with the South Carolina Freedom of Information Act ("FOIA") when holding a meeting. In numerous opinions, this Office concluded a legislative delegation is a public body subject to FOIA. Ops. Att'v Gen.. 1984 WL 159918 (S.C.A.G. Sept. 6, 1984); 1998 WL 747070 (S.C.A.G. Sept. 30, 1998). Our Supreme Court confirmed this understanding in Fowler v. Beaslev. 322 S.C. 463, 468, n.5 472 S.E.2d 630, 633 n.5 (1996), stating "[t]he Delegation falls within the definition of 'public body' as set forth in § 30-4-20(a), so as to render the FOIA applicable." Accordingly, delegations must adhere to the open meeting requirement under section 30-4-60 of the South Carolina Code (2007) requiring "[ejvery meeting of all public bodies shall be open to the public unless closed pursuant to § 30-4-70 of this chapter."

We understand your concern with holding a public meeting during the COVID-19 pandemic. Thus, we point you to section 30-4-20(d) defining "meeting" for purposes of FOIA as "the

The Honorable Jeff Bradley
Page 3
April 27,- 2020

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." (emphasis added). In prior opinions, this Office interpreted section 30-4-20(d) as allowing the use of telephone conference calls to conduct meetings in compliance with FOIA. In 1992, we explained:

A telephone conference call would appear to be one means of handling a matter in an emergency situation such as your letter describes. A meeting is defined by § 30-4-20(d) to be "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." (Emphasis added.) This Office has advised previously that such language authorizes a meeting to be convened by means of a telephone conference call, Ops. Attv. Gen, dated March 25, 1981 and November 17, 1980, apparently at least in the absence of a statute requiring a public body to meet physically in a certain place. . .
Thus, if JARC were to convene via a telephone conference call set up as described in these two opinions, with public notice requirements of § 30-4- 80(b) observed, so that it may act collectively rather than its members acting individually and independently of each other, such would appear to comply with the requirements of the Freedom of Information Act.

Op. Att'v Gen.. 1992 WL 575608 (S.C.A.G. Jan. 21, 1992). We reiterated these finding in subsequent opinions. See Ops. Att'v Gen.. 2005 WL 2250207 (S.C.A.G. Aug. 25, 2005); 2012 WL 3875118 (S.C.A.G. Aug. 28, 2012).

We are not aware of a requirement that delegations meet at a certain location, but suggest you look to the particular delegations rules. Barring a requirement that the delegation meet in a particular location, we believe it would be able to use electronic means to conduct its meetings in compliance with FOIA. While our opinions namely address meetings over conference call, there have been advancements in technology that allow meeting to be conducted with video via the internet, which may satisfy the meeting requirement as well. Regardless of the means used to conduct the meeting, we again caution that other aspects of FOIA, including the notice requirements under section 30-4-80 of the South Carolina Code (Supp. 2019), must be met if a meeting is conducted by means of electronic equipment. Nonetheless, we hope this will provide the delegation with a means a making a recommendation while avoiding personal contact during the COVID-19 pandemic.

Conclusion

Section 59-53-910 of the South Carolina Code governs appointments to the Commission and requires any vacancies on the Commission be filled through appointment by the governor upon the recommendation of the appropriate county legislative delegation. In order for the legislative

The Honorable Jeff Bradley
Page 4
April 27, 2020

delegation to make such a recommendation, we are of the opinion that it must do so collectively with a quorum of its members. Additionally, we believe the open meeting requirements under FOIA must be satisfied. However, as we stated in past opinions, absent a requirement that the delegation meet at a particular location, we believe the delegation can meet by electronic means in order to avoid personal contact due to COVID-19 so long as the other FOIA requirements are satisfied, including the notice requirement contained in section 30-4-80 of the South Carolina Code.

Sincerely,

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

D. lamrn
Robert D. Cook
Solicitor General