Could an active-duty service member who lived in South Carolina join a public charter school board?

Plain-English summary

In 2020, South Carolina's Attorney General examined whether an active duty service member could meet the residency requirement for a public charter school board. The requester described a person stationed in South Carolina for nine years who owned a home, paid property taxes and had children at the charter school, but whose primary residence was in Texas.

The AG said the member had to be a South Carolina resident and treated residence as a question of domicile and intent. To change domicile from Texas, the person would need to abandon the prior home and establish a South Carolina home with intent to remain. The opinion identified the statutory factors used to assess intent and the federal protection against losing or acquiring voting residence solely because of military orders. It did not decide where this particular person was domiciled because the office could not make factual findings.

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: Did owning a South Carolina home automatically qualify the service member?
A: The opinion did not say so. It treated home ownership as part of a factual residence inquiry centered on domicile and intent, and did not decide this person's eligibility.

Q: What did the AG say the charter school law required?
A: The quoted board provision required every director to be a South Carolina resident. The AG linked that requirement to elector or voter qualifications and the domicile rules it discussed.

Q: Did military orders alone change the member's voting residence?
A: No. The opinion quoted the Servicemembers Civil Relief Act's rule that absence under orders alone neither removes a prior domicile nor creates a new one elsewhere.

Background and statutory framework

Counsel for several charter school boards requested the opinion. The AG considered the charter board residency provision, South Carolina's statutory definition of domicile and factors bearing on intent, and the federal military residence rule. It left the ultimate residence determination to a fact finder.

Citations and references

• S.C. Code Ann. § 59-40-50(B)(9): charter school board composition and resident-member requirement.
• S.C. Code Ann. § 7-1-25: domicile definition and factors discussed in the opinion.

Official title

On whether an active military serviceperson can fulfill the residency requirements to serve as a board memberof a South Carolina public charter school (Section 59-40-50(B)(9), Code of Laws of South Carolina).

Requester

Tyler R. Turner, Esquire, Turner Caudell.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-11-2020/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/03/TurnerT-OS-10458-FINAL-Opinion-3-11-2020-02230552xD2C78-02234108xD2C78.pdf

Original opinion text

-South
Alan Wilson
Attorney General

March 11,2020

Tyler R. Turner, Esq.
Turner Caudell

914 Richland Street, Ste. A-101
Columbia, SC 29201
Dear Mr. Turner:

As legal counsel to the governing boards of several public charter schools throughout South Carolina, you are requesting an opinion of this Office regarding whether an active duty military serviceperson can fulfill the residency requirement to serve as a board member of a South Carolina public charter school as provided for in section 59-40-50(B)(9). You inform us that the individual has been stationed in South Carolina for nine years, owns a home in this state, pays property taxes in this state, and has children enrolled in the charter school. You also say that this individual's primary residence is in the state of Texas. LAW/ANALYSIS

As we have stated in many prior opinions, this Office is not empowered to investigate or

determine factual questions.' However, we can provide you with the applicable law. Section 59-40-50(B)(9) of the South Carolina Code of Laws provides: (B)A charter school must.... (9) consist of a board of directors of seven or more individuals with the exact number specified in or fixed in accordance with the bylaws. Members of a board of directors may serve a term of two years, and may serve additional terms. A choice of the membership of the board must take place every two years. Fifty percent of the members of the board as specified by the bylaws must be individuals who have a background in K-12 education or in

'See Op. S.C. Attv. Gen.. 1989 WL 406130 (April 3, 1989)("[b]ecause this Office does not have the authority of a court or other fact-finding body, we are not able, in a legal opinion, to adjudicate or investigate factual questions.")

riENiBERTC. Dennis Building <» Post Office Box 11549 • Coll^bia,3C 29211-1549 . Telephone 803-734-3970 • Facsb/iile 803-253-6283

Tyler R. Turner, Esq.
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March 11,2020

business, and the bylaws of the charter school also
must provide for the manner of selection of these
members. In addition, at least fifty percent of the
members of the board as specified by the bylaws
must be elected by the employees and the parents or
guardians of students enrolled in the charter school.

Parents or guardians shall have one vote for each
student enrolled in the charter school. All members

must be residents of the State of South Carolina. A
person who has been convicted of a felony must not
be elected to a board of directors. If the board of

directors consists of an odd number of members, the
extra member must be an individual who has a
background in K-12 education or in business . . .
S.C. Code Ann. § 59-40-50(B)(9) (1976 Code, as amended) (emphasis added).

You are asking if this active duty military serviceperson satisfies the residency requirement in section 59-40-50(B)(9) to serve as a board member of a South Carolina public charter school. The South Carolina Constitution has certain requirements concerning eligibility for office, which

includes: "[n]o person may be popularly elected to and serve in any office in this State or its political subdivisions unless he possesses the qualifications of an elector . . ."

S.C. Const, art.

VI, §1.
Similarly, our State Constitution requires that "[n]o person shall be elected or appointed to any

office in this State unless he possess the qualifications of an elector . . ." S.C. Const, art. XVII, § 1.

Section 7-5-120 provides for the qualifications of an elector or registered voter.

One of the

qualifications is that an individual "is a resident in the county and in the polling precinct in which the elector offers to vote . . ."

S.C. Code Ann. § 7-5-120 (1976 Code, as amended).

Section 7-1-25 explains that "[a] person's residence is his domicile." S.C. Code Ann. § 7-1-25

(1976 Code, as amended). According to the statute, "'[d]omicile' means a person's fixed home where he has an intention of returning when he is absent. A person has only one domicile." Id. Furthermore, the statute provides that "[f]or voting purposes, a person has changed his domicile

if he (1) has abandoned his prior home and (2) has established a new home, has a present intention to make that place his home, and has no present intention to leave that place." Id. Section 7-1-25 also lists eleven nonexclusive factors to consider when determining an individual's intent regarding his domicile for voting purposes:

Tyler R. Turner, Esq.
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March 11,2020

(1) a voter's address reported on income tax returns;
(2) a voter's real estate interests, including the address for which

the legal residence tax assessment ratio is claimed pursuant to Section 12-43-220(C);

(3) a voter's physical mailing address;
(4) a voter's address on driver's license or other identification issued by the Department of Motor Vehicles; (5) a voter's address on legal and financial documents; (6) a voter's address utilized for educational purposes, such as public

school

assignment

and

determination

of

tuition

at

institutions of higher education;
(7) a voter's address on an automobile registration;

(8)

a voter's address

utilized

for membership

in clubs

and

organizations;

(9) the location of a voter's personal property;
(10) residence of a voter's parents, spouse, and children; and (11) whether a voter temporarily relocated due to medical care for the voter or for a member of the voter's immediate family. Id.

Our State Supreme Court has explained that residency or domicile is a mixed question of law and fact and that an individual's intent is controlling: The residence of a person is a mixed question of law and fact; and

the intention of that person with regard to the matter is deemed the controlling element of decision. His intention may be proved by his acts and declarations, and perhaps other circumstances; but when these, taken all together, are not inconsistent with the intention to retain an established residence, they are not sufficient in law to deprive him of his rights thereunder, for it will be presumed that he intends to continue a residence gained until the

Tyler R. Turner, Esq.
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March 11,2020

contrary is made to appear, because inestimable political and valuable personal rights depend upon it. Clarke v. McCown. 107 S.C. 209, 92 S.E. 479, 480 (1917).

To serve as a board member of a South Carolina public charter school pursuant to section 59-4050(B)(9), the military serviceperson referred to in your letter must meet the qualifications of an elector or registered voter, which includes being a resident. His residency is a mixed question of law and fact and is determined primarily by his intent. In order to have changed his residence or

domicile to South Carolina, this individual must have abandoned his residency in Texas.

He

must have established a new home in South Carolina and have the intent to make South Carolina

his home and not to leave. His intent as to his domicile can be established with the use of the nonexclusive factors located in section 7-1-25. We note again that this Office cannot determine

this military serviceperson' s residence as we do not have the authority to investigate or determine factual questions. Op. S.C. Attv. Gen., 1989 WL 406130, supra.

It is worth mentioning, however, that the Servicemembers Civil Relief Act2 guarantees military personnel residency in the state in which they resided prior to military service: For the purposes of voting for any Federal office (as defined in section 30101 of Title 52) or a State or local office, a person who

is absent from a State in compliance with military or naval orders shall not, solely by reason of that absence— (1) be deemed to have lost a residence or domicile in that State, without regard to whether or not the person intends to return to that State;

(2) be deemed to have acquired a residence or
domicile in any other State; or

(3) be deemed to have become a resident in or a
resident of any other State.
50U.S.C.A. §4025.

CONCLUSION

To serve as a board member of a South Carolina public charter school pursuant to section 59-4050(B)(9), the active duty military serviceperson referred to in your letter must meet the qualifications of an elector or registered voter, which includes being a resident. His residency is 2 50 U.S.C.A. § 3901 etsefl.

Tyler R. Turner, Esq.
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March 11,2020

a mixed question of law and fact and is determined primarily by his intent.

In order to have
changed his residence or domicile to South Carolina, this individual must have abandoned his residency in Texas. He must have established a new home in South Carolina and have the intent

to make South Carolina his home and not to leave. His intent as to his domicile can be established with the use of the nonexclusive factors located in section 7-1-25 of the South Carolina Code of Laws. This Office cannot determine this military serviceperson's residence as we do not have the authority to investigate or determine factual questions. Gen.. 1989 WL 406130, supra. Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

&

Robert D. Cook

Solicitor General

/

Op. S.C. Attv.