Could paid employees of a South Carolina charter school serve on its governing board after the 2006 law change?

Plain-English summary

In 2006, the South Carolina Attorney General said a newly enacted charter school provision prevented a paid employee from serving on the governing board of the same school. It applied to current employee members of Greenville Technical Charter High School's board and employees elected for the next term but not yet sworn in. Employees who wanted to remain paid staff had to leave or forgo the board position.

The office also said the prohibition covered nonvoting membership. It read the school's bylaws to mean no new election was required if resignations left more than ten directors on the board; the request described a replacement election when membership dropped to ten or fewer.

Currency note

This opinion was issued in 2006. 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 new rule affect employees already serving on the board?
A: Yes. The opinion said paid employees wishing to keep their jobs should resign from the board.

Q: Could employees elected but not yet sworn in serve next term?
A: Not while remaining paid employees of the school, according to the opinion.

Q: Could a paid employee serve without voting?
A: The Attorney General said the prohibition appeared to cover voting and nonvoting board members.

Q: Was a replacement election always required?
A: No. Under the described bylaws, the office said a new election was not required if membership remained above ten.

Background and statutory framework

The new provision barred a school governing body member from receiving pay as an employee of the same school. The opinion applied it to an annual board election and to the school's own vacancy rule, which controlled when another election was needed.

Citations and references

The linked opinion quotes the 2006 charter school employment restriction and the board election provision.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-1-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06jun1gantt.pdf

Original opinion text

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HENRY M CMASTER
ATIORNEY GENERAL

June 1, 2006

David Gantt, Esquire
General Counsel
Greenville Technical Charter High School
Pfeiffer Gantt & Gleaton
Symphony Center, 200A South Main Street
Greenville, South Carolina 29601
Dear Mr. Gantt:
In a letter to this office you raised several questions regarding the eligibility of current employees of the Greenville Technical Charter High School to serve on the board of that school. You indicated that the school's board is elected in accordance with S.C. Code Ann. § 59-40-50(B)(9) which states that"(a] charter school must. .. elect its board ofdirectors annually." Such is a provision in the recently enacted charter school legislation, R283, which was signed by the Governor on May 3, 2006. According to the legislation, such legislation took effect upon the approval by the Governor. Based upon my review, Section 59-40-50(8)(9) read exactly the same prior to the new legislation. According to your letter, the school's bylaws require the school to elect not more than fifteen board members each year. fn the event that the number of directors drops to ten or less, the bylaws require the school to hold another election during the year to fill the vacancies for the remainder of the year. You indicated that presently there are several teachers and administrators serving on the board. The board's annual election occurred. on April 25 and the board is scheduled to be sworn in at the end of June. The board serves from July 1 until June 30, consistent with the school' s fiscal year. Several of the school's teachers and employees were also elected to next year' s board. These school employees were elected but have not yet been sworn into office. Included in the recently enacted legislation is a new provision, Section 59-40-l 90{D), which states that "[a] member of a school governing body may not receive pay as an employee in the same school." Based upon my review, it appears that "a school governing body" is the same entity as the "board of directors" provided for by Section 59-40-50(8)(9). According to your letter, prior to the new legislation, the statutes regarding charter schools did not contain any requirements or restrictions on who could serve on the board.

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• ""''Oma; Box 11549 •

CULUMUOA, SC 29211·1549

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Mr. Gantt
Page 2
June 1, 2006

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Referencing such, you have raised several questions. You first asked whether Section 59-40190(0),which prohibits paid employees from serving on the board, has any impact on the present board that was elected last year. Generally, when interpreting the meaning of a statute, certain basic principles must be observed. The cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Typically, legislative intent is determined by applying the words used by the General Assembly in their usual and ordinary significance. Martin v. Nationwide Mutual Insurance Company, 256 S.C. 577, 183 S .E.2d 451 ( 1971 ). Resort to subtle or forced construction for the purpose oflimiting or expanding the operation of a statute should not be undertaken. Walton v. Walton, 282 S.C. 165, 318 S.E.2d 14 (1984 ). Courts must apply the clear and unambiguous terms of a statute according to their literal meaning and statutes should be given a reasonable and practical construction which is consistent with the policy and purpose expressed therein. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991); Jones v. South Carolina State HighwayDsmartment, 247 S.C. 132, 146 S.E.2d 166 (1966). Consistent with such, in my opinion, paid employees would be affected by the new legislation that prohibits a member of the school governing body from receiving pay as an employee in the same school. As a result, if these individuals desire to remain as paid employees of the school, they should resign from the school board of directors.

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In your next question you asked whether Section 59-40- l 90(D) prohibits paid employees who were elected on April 25, but who have not yet been sworn in, from serving on next year's board. Consistent with the first question, in my opinion, these paid employees likewise would not be eligible to serve on the board beginning July 1 if they wish to remain as paid employees of the school. You also asked whether if the paid employees resign from the board because of the prohibition of Section 59-40-190(D), does the school have to hold another election to replace those board members provided that the number ofboard members does not drop below ten. As referenced above, you stated that the current bylaws require that ifthe number of directors drops to ten or less, then the school is required to hold another election to fill the vacancies for the remainder of the year. In my opinion, if the number of board members does not drop below ten, consistent with the bylaws, a new election is not required. In your last question you asked whether there are any provisions in the recently enacted legislation which prohibits the school from electing or appointing paid employees as non-voting members of the school board. Based upon my review, inasmuch as Section 59-40- l 90(D) states that "[a] member of a school governing body may not receive pay as an employee in the same school", it does not appear that a paid employee should serve as either a voting or non-voting member of the board.

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Mr. Gantt
Page 3
June 1, 2006

With kind regards, I am,
Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General

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REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General

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