Did South Carolina’s Education Oversight Committee have to consent before the State Board adopted new standards?

Plain-English summary

Three lawmakers asked whether South Carolina's Education Oversight Committee had to consent before the State Board of Education adopted new standards and assessments. In a May 2002 informal opinion, the AG said prior consent was not required under the provision then in force.

The letter compared the statute's “advice and consent” wording to appointments made by a governor and later submitted for Senate consent. It reasoned that the provision did not depart from that usual sequence. The conclusion addressed the timing of committee consent; it did not say that the committee had no consent role at all.

Currency note

This opinion was issued in 2002. 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 State Board need committee consent before adopting standards? A: The AG said no; the provision did not require the committee's consent in advance.

Q: What analogy did the AG use to interpret the sequence? A: It compared the Board's adoption and committee consent to a governor's choice of an appointee followed by Senate advice and consent.

Q: Did the opinion eliminate the committee's role in standards and assessments? A: No. It addressed whether committee consent had to precede adoption, not whether the statutory consent requirement existed.

Background and statutory framework

The opinion quoted §59-18-320(D), which required new standards and assessments to be developed and adopted upon the committee's advice and consent. It found no indication that the committee's consent had to come before the Board's adoption.

Citations and references

• §59-18-320(D): State Board adoption upon the Education Oversight Committee's advice and consent.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-24-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02may24fair.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE C OND ON
ATIORN EY GENERAL

May 24, 2002

The Honorable Mike Fair
Member, South Carolina Senate
P.O. Box 142
211 Gressette Senate Office Building
Columbia, SC 29202
The Honorable Thomas G. Keegan
Member, South Carolina House of Representatives
434-B Blatt Building
Columbia, SC 29211
The Honorable William C. Mescher
Chairman, Senate General Committee
P .O. Box 142
303 Gressette Senate Office Building
Columbia, SC 29202
Gentlemen:
Each of you have requested the Opinion ofthis Office as to whether the Education Oversight Committee must give prior consent to standards and assessments adopted by the State Board of Education under S.C. Code Ann. §59-18-320(D) (Supp. 2001) of the Education Accountability Act. This provision states that "[a ]ny new standards and assessments required to be developed and adopted by the State Board of Education, through the Department of Education, must be developed and adopted upon the advice and consent of the . . . Committee." (emphasis added). This provision is similar to a number of statutes that provide for appointments by the Governor upon the advice and consent of the Senate. See, eg. §8-13-31 O(B)(Supp. 2001) (Ethics Commission) and § 13-1-3 0 (Supp. 2001 )(Secretary of Commerce). I believe that customary practice

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The Honorable Mike Fair
The Honorable Thomas G. Keegan
The Honorable William C. Mescher
May 24, 2002
Page2
is that the Governor chooses the individual to be appointed and then the Senate gives its advice and consent. This construction was recognized in a prior Opinion of this Office, as follows:
... As a general rule, "an appointment to office is made and is complete when the last act required of the person or body vested with the appointing power has been performed." Op.Atry.Gen.,February 19, 1980, quoting63 Am.Jur.2d,Public0.fficers and Employees,§ 99. See also, Op.Airy.Gen., December 7, 1987. The rule is equally applicable to the situation where an appointment is made upon the advice and consent of the Senate. In that specific context, it has been written: Where an appointment is made as the result of a nomination by one authority and confirmation by another, the appointment is not valid and complete until the action of all bodies concerned has been taken. 67 C.J.S., Officers, § 42 .... And in Harrington v. Pardee, 1 Cal.App. 278, 82 P. 83, the Court was of the view: As to the trustees of this home, the Governor cannot appoint, when the Senate is in session, without the 'advice and consent' of that body. In all such appointments the first step to be taken is the suggestion by the Governor to the Senate of the name of a person for the office, and to ask the advice of the Senate, and for its consent for him to appoint such person; the second step is the advice and consent of the Senate which is manifested by a resolution certified to the Governor and to the Secretary of State, .... Op. No. 89-72, Ops. Atry. Gen. (July 17, 1989). See also, Op. No. 4542, Ops. Atry. Gen. (December 13, 1976)(appointments to fill vacancies in terms of probate judges with advise and consent). Section 59-18-320(D) indicates no intention to deviate from this practice of the advice and consent following the Governor's choice of the individual to be appointed, or in the instant case, the adoption of standards. Accordingly, the prior consent of the Oversight Committee did not have to be obtained by the State Board. This letter is an informal opinion. It has been written by the designated Assistant Deputy Attorney General and represents the opinion of the undersigned attorney as to the specific questions asked. It has not, however, been personally reviewed by the Attorney General nor officially published in the manner of a formal opinion.

The Honorable Mike Fair
The Honorable Thomas G. Keegan
The Honorable William C. Mescher
May24, 2002
Page 3

If you have further questions, please let me know.
Yours V'J,fY truly,

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