Could an elected school board authorize an unelected school employee to give a trespass notice?

Plain-English summary

In 2018, a senator asked whether elected school trustees could delegate their authority over school property trespass notices to someone who was not elected. The Attorney General predicted that they could. It reaffirmed an earlier opinion and explained that South Carolina’s trespass statute expressly referred to an agent or representative of the person in possession.

The opinion addressed a concern that cases involving private commercial property might not apply to a public school. It relied on a South Carolina Supreme Court decision treating school land as covered by the trespass provision and reasoned that a school agent exercising control or custody could give notice. It did not require trustees to police school grounds personally.

Currency note

This opinion was issued in 2018. 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: Did an elected trustee personally have to give every school trespass notice?
A: The AG predicted no. It said the board could delegate the task to an unelected person exercising control or custody over school property.

Q: Did the school’s public ownership prevent use of the trespass provision?
A: The opinion relied on a South Carolina Supreme Court decision that treated trespass on school land as covered by the provision.

Q: Did this opinion replace the earlier opinion on school trespass?
A: No. It reaffirmed the earlier opinion and said the two should be read together for the fuller analysis.

Background and statutory framework

The request followed an earlier AG opinion on trespass at public schools. The 2018 clarification responded to a question about delegation by a board of elected trustees. It read the trespass statute’s agent language alongside the South Carolina decision on school lands and earlier cases about agents controlling property.

Citations and references

• The opinion quoted the statute’s reference to the person in possession “or his agent or representative.”
• It concluded that elected trustees could delegate their authority under the trespass laws to someone “who is not an elected official.”

Official title

On clarification of November 30, 2017 Opinion regarding trespassing on public school property.

Requester

The Honorable Mia McLeod, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-16-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/02/McLeod-M.-OS-10229-FINAL-Opinion-2-16-2018-01602358xD2C78.pdf-01603509xD2C78.pdf

Original opinion text

Alan Wilson
Attorney General

February 16, 2018
The Hon. Mia McLeod
South Carolina Senate
PO Box 142

Columbia, SC 29202
Dear Senator McLeod:

We received your request seeking a clarification of our opinion issued on November 30,

2017 in response to your question regarding trespassing on public school property. The following opinion sets out our understanding of your question and our response. Issue:

Your opinion request forwards to us correspondence fi*om a constituent following up on our November 30 opinion (Op. S.C. Att'y Gen., 2017 WL 6403325 (November 30, 2017)) which asks that we clarify "whether a public entity that is composed of elected officials can delegate its authority to [exercise its rights under state trespass laws] to a person who is not an elected official."

Law/Analysis:

It is the opinion of this Office that a court most likely would conclude that a school board of trustees which is composed of elected officials can delegate its authority to exercise its rights under South Carolina trespass laws to a person who is not an elected official. We believe that our November 30, 2017 opinion is dispositive of this question, but in order to be as responsive as possible to your request we take this opportunity to clarify our understanding of the applicable

precedent in this area. This opinion should be read in conjunction with that prior opinion for a fuller discussion ofthe underlying question.

Your constituent seeks clarification of our reliance upon South Carolina precedent which

he describes as examples of"enforcement of trespass laws by private entities not public entities" where "employees of the business [are] acting to protect the business property." We understand

his question to focus on the distinction between commercial property under the control of a
• private corporation, and public property which typically is held open to all persons. Cf. State v. Hanapole, 255 S.C. 258, 178 S.E.2d 247 (1970) (holding that S.C. Code Ann. § 16-11-620 applies only to private property). Rembert C. Dennis Building • Post Office Box 11549 • Columbia,SC 29211-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

Senator Mia McLeod
Page 2
February 16, 2018

In response, we note that in addition to cases involving commercial property in our prior opinion to you, that opinion also referenced the 1983 South Carolina Supreme Court decision In

the Interest of Joseph B., where the Court concluded that "a trespass upon school lands is a trespass 'on the premises of another' as proscribed by Section 16-11-620." In the Interest of

Joseph B., 278 S.C. 502, 299 S.E.2d 331 (1983).

This ruling expressly distinguished a prior

South Carolina Supreme Court decision State v. Hanapole, 255 S.C. 258, 178 S.E.2d 247 (1970), wherein the Court overturned a conviction for trespass under Section 16-11-620 at a public

airport on the basis that Section 16-1 1-620 "applies only to private property." In the Interest of Joseph B., 278 S.C. at 503, 299 S.E.2d at 331. By contrast, the Court in In the Interest ofJoseph

B. stated that it "discounted] the seeming anomaly of the characterization of public school lands as private property" in upholding a conviction under the same code section. Id. at 504, 299 S.E.2d at 331 (emphasis added).

Based upon this characterization of public school lands as private property discussed in In the Interest of Joseph B., and supported by the distinction of State v. Hanapole in that same opinion, we believe that a South Carolina court would conclude that Section 16-1 1-620 applies to school property together with the related jurisprudence, including jurisprudence which

considered cases arising from trespasses on private commercial property. See id. Such cases routinely have "upheld convictions under § 16-11-620 where the person giving a trespass notice

was ... the manager or employee of a business exercising control or custody over the commercial property." Op. S.C. Att'y Gen., 2013 WL 3133638 (June 5, 2013) (internal citations omitted). Consistent with this long line of cases, we believe that a court would conclude that an agent of the school exercising control or custody over the school property also could give such notice. See Op. S.C. Att'y Gen., 2017 WL 6403325 (November 30, 2017). Moreover, even if a court were to conclude that this line of cases were inapplicable to your constituent's question, we believe that the court nevertheless would conclude that this result still is the most consistent with the plain language of Section 16-1 1-620, which defines trespass in part as failing to leave after "being ordered or requested to do so by the person in possession or his agent or representative." S.C. Code Ann. § 16-11-620 (2015) (emphasis added). In other words, the plain language of Section 16-11-620 expressly contemplates that some authorized person other than the owner of the property has the same power as the owner of the property to give notice to trespassers. Id. We understand that your constituent might believe that the law applicable to trespass on private property is or should be distinct from the law which would apply to "a [school] board delegating its responsibilities to a non-board member" for the purposes of trespass enforcement. However, it appears that the South Carolina Supreme Court does not share this view. See In the

Interest ofJoseph B., 278 S.C. 502, 299 S.E.2d 331 (1983). Moreover, we reiterate that it would be patently absurd to "require the trustees to personally police the school grounds against

Senator Mia McLeod
Page 3

February 16, 2018

trespassers where other executive, administrative, and security functions routinely are delegated to various district employees, school resource officers, and private security guards."

Op. S.C.

Atl'y Gen., 2017 WL 6403325 (November 30, 2017) (citing State ex rel. McLeod v. Montgomery, 244 S.C. 308, 314, 136 S.E.2d 778, 782 (1964) ("[C]ourts will reject [a statutory construction] when to accept it would lead to a result so plainly absurd that it could not possibly have been

intended by the Legislature . . . .")).

Such absurd results are disfavored in our law, and we

believe a court would avoid such a result, especially when the plain language of Section 16-1 1 620 and related jurisprudence countenance against it. See discussion, supra. Conclusion:

In conclusion, for the reasons set out above, we affirm the prior opinion of our Office to

you dated November 30, 2017 and opine that a court most likely would conclude that a school board of trustees which is composed of elected officials can delegate its authority to exercise its rights under South Carolina trespass laws to a person who is not an elected official.

Sincerely,
i

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David S. Jones^,
Assistant Attorney General

REVIEWED AND APPROVED BY:

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She *y<
Robert D. Cook
Solicitor General