Could the University of South Carolina trustees waive the five-day mailed notice rule for a special meeting?

Plain-English summary

In a July 2019 letter about a University of South Carolina Board of Trustees meeting, the Attorney General read the university's governing statute literally. The statute said each trustee must be mailed notice of the time and place at least five days before a regular or special meeting. The AG concluded that the five-day mailed-notice requirement was mandatory and could not be waived.

The office did not decide whether the particular meeting met FOIA public notice requirements. It identified that as a factual question beyond the opinion. It also noted that the trustees' statute had not been amended to add electronic mail as a notice method.

Currency note

This opinion was issued in 2019. 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 the five-day rule apply to special trustee meetings?
A: Yes. The statute quoted in the opinion covered both regular and special meetings.

Q: Could an email replace mailed notice under the statute discussed in 2019?
A: The AG said the text specified mail and had not been amended to include electronic mailing. It found no room to substitute another method in its interpretation.

Q: Did public notice under FOIA resolve notice to individual trustees?
A: No. The opinion treated the statutory mailed notice to trustees as an independent requirement and did not decide whether the meeting complied with FOIA.

Q: Did the AG make a factual finding that the July 2019 meeting was illegal?
A: The letter stated the mandatory legal rule. It left the factual FOIA notice issue unresolved and said only a court could conclude otherwise about the statute's meaning.

Background and statutory framework

Columbia's mayor asked about a meeting called by the Governor. The AG analyzed the trustees' specific meeting statute and analogized to decisions requiring strict compliance with statutory notice provisions. Its conclusion concerned the statutory five-day mail requirement.

Citations and references

• § 59-117-50: meeting and mailed-notice provision quoted in the opinion.

Official title

On whether the 5 day notice requirement was violated regarding the meeting of the University of South Carolina Board of Trustees (SC Code of Laws, Section 59-117-50).

Requester

The Honorable Stephen K. Benjamin, Mayor, City of Columbia.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-12-2019/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/07/BenjaminS-OS-10379-FINAL-Opinion-7-12-2019-02017011xD2C78-02030078xD2C78.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

July 12, 2019

The Honorable Stephen K. Benjamin, Mayor
City of Columbia

P.O. Box 147

Columbia, SC 29217

Dear Mayor Benjamin:

You seek our opinion “. . . regarding the meeting of the University of South Carolina Board of Trustees called by Governor McMaster for July 12, 2019.” By way of background, you provide the following information as stated in your letter:

Under the SC Code of Laws Section 59-117-50 (below) this meeting has not been properly noticed. :

SECTION 59-117-50. Meetings of board; quorum.

The board of trustees shall meet not less frequently than quarterly, the time and place of each such regular meeting to be fixed by the chairman of the board or otherwise as the board of trustees shall provide. If the Governor chooses to serve as an ex officio member of the board, he shall preside at all regular and special meetings of the board of trustees in which he is in attendance. At those meetings at which the Governor is not in attendance the chairman of the board of trustees shall preside and in his absence such member shall preside as the board may select. The Governor of the State (if serving as an ex officio member of the board), the chairman of the board of trustees, and the president of the University shall each have the power to call a special meeting of the board of trustees and fix the time and place thereof. Any five members of the board shall likewise have this power. A majority of the members of the board of trustees shall constitute a quorum for the transaction of all business of the board but not less than a majority vote of the whole board shall be required for the election or removal of a president. It shall be the duty of the president and other officers as well as members of the faculty to attend meetings of the board of trustees when requested to so.

Notice of the time and place of all meetings, both regular and special meetings, of the

board of trustees of the University of South Carolina shall be mailed by the secretary

or his assistant to each trustee not less than five days before each meeting thereof. (emphasis added.)

{eniBERT C. DENNIS BUILDING © POST OFFICE BOX 11549 =» COLUMBIA, SC 29211-1549 ¢ TELEPHONE 803-734-3970 « FACSIMILE §03-253-6283

The Honorable Stephen K. Benjamin
Page 2
July 12, 2019

It is clear that the notice requirements have not been met under our state law and that this meeting is improperly constituted.

Given the importance of the matters at hand and the urgency of time, I would like your opinion post haste on the legality of this meeting and potential action by the Board of Trustees.

Law/Analysis

Our Supreme Court has advised that “[w]here the terms of a statute are clear and unambiguous, there is no room for interpretation and we must apply them according to their literal meaning.” S.C. Dept. of Highways and Pub. Transp. v. Dickinson, 288 S.C. 189, 191, 341 S.E.2d 134, 135 (1986). In Dickinson, the Court held that a statute mandating a hearing within 20 days was mandatory. Although the 20 day notice provision was deemed perhaps an “unreasonably short period of time,” the Court concluded the statutory provision was mandatory, nevertheless, and must be enforced.

In addition, statutory notice provisions must be followed even with actual notice. As the Court of Appeals explained in Hawkins v. Bruno Yacht Sales, Inc., 342 S.C. 352, 355-56, 536 S.E.2d 698, 705 (Ct. app. 2000), aff'd. as modified, 353 S.C. 31, 36, 577 S.E.2d 202, 205 (2003),

[t]o the contrary, our appellate courts have expressly held proof of actual notice to the defaulting taxpayer does not excuse non-compliance with statutory notice requirements. See Ryan, 335 S.C. at 395, 517 S.E.2d at 693 (“Even actual notice is insufficient to uphold a tax sale absent strict compliance with statutory requirements.”); Manji, 323 S.C. at 93, 473 S.E.2d at 838 (citing Aldridge v. Rutledge, 269 S.C. 475, 238 S.E.2d 165 (1977) (failure to provide the required statutory notice to the true owner of the property is not excused, regardless of actual notice)); South Carolina Fed. Sav. Bank v. Atlantic Land Title Co., 314 S.C. 292, 295, 442 S.E.2d 630, 632 (Ct.App.1994) (“[S]tatutory notice requirements may not be circumvented simply by establishing actual notice of a tax sale.”); Donohue v. Ward, 298 S.C. 75, 83-84, 378 S.E.2d 261, 266 (Ct.App.1989) (“The giving of a mandatory notice to a tax debtor is not waived by the informal knowledge on [his] part that taxes have not been paid ... even if the debtor has actual knowledge of it and attempts to waive a failure to give notice.”).

While these cases involve tax notice requirements, they amply demonstrate the mandatory nature of a statutory notice requirement.

Statutory notice of meeting statutes are considered “mandatory, and constitute [ ] a jurisdictional condition precedent to the activation” of a public body’s power to act. In HealthSouth Doctors’ Hosp. Inc. v. Hartnett, 622 So.2d 146, 148 (Fla. 1993), the Court ruled that failure to comply with the statutory notice requirements for a meeting rendered an ordinance “null and void because the City failed to follow the mandatory notice requirements” of the

The Honorable Stephen K. Benjamin
Page 3
July 12, 2019

statute. The words “shall be mailed” in a statute are deemed mandatory and must be followed. Wood v. City of Kalispell, 310 P.2d 1058 (Mont. 1957).

Conclusion

Section 59-117-50 has not been amended since 1983 so as to include electronic mailing as a means to provide notice to trustees. The only means for notice contained in the statute is that the notice to each trustee “shall be mailed.” In short, while proper notice may have been provided of the meeting under FOIA (we do not comment thereupon because this is a factual issue beyond the scope of an opinion), the statute requiring 5 days notice by mail to trustees is mandatory. This being the case, we have no room for interpretation of the statute. Only a court could conclude otherwise. Accordingly, it is our opinion that five days notice by mail means precisely that. The requirements of § 59-117-50 may not be waived.

Sincerely,
obert D. Cook
Solicitor General