Could South Carolina’s governor suspend an indicted school superintendent and assistant superintendent in 1995?

Official title

Regarding the Governor’s authority to suspend the Georgetown County Superintendent of Education and the Georgetown County Assistant Superintendent of Education, who were both recently indicted for Failure to Report to Law Enforcement and common law misconduct.

Requester

Angelia S. Tutko, Legal Counsel, Office of the Governor

Plain-English summary

A 1995 South Carolina Attorney General letter concluded that the governor had authority to suspend Georgetown County's school superintendent and assistant superintendent after their indictment, and to appoint replacements pending trial. The conclusion rested on the letter's view that both positions were public offices for the relevant suspension provisions and that the indictment alleged an offense involving moral turpitude. The letter described the governor's power as discretionary.

The assistant superintendent's status required separate analysis. Earlier AG letters on dual office holding had suggested that the position was not an office, but this letter applied the South Carolina Supreme Court's later focus on the holder's public powers and duties in State v. Thrift. For the moral-turpitude issue, it relied on the grand jury's allegations of knowing and corrupt failure to report conduct on school property. It did not adjudicate guilt; the question was suspension following indictment.

Currency note

This opinion was issued in 1995. 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 letter treat an assistant superintendent as an officer who could be suspended? A: Yes. For the suspension provisions, it concluded that the position exercised part of the state's sovereign power and counted as a public office, despite earlier AG opinions addressing a different dual-office question.

Q: Did an indictment automatically remove the officials from office? A: No. The letter described the governor's authority to suspend them pending trial as discretionary and separately discussed filling vacancies after conviction under the provisions it quoted.

Q: Did the AG find the school officials guilty of misconduct? A: No. It assessed what the indictment charged and said it would not second-guess the grand jury's allegations when deciding whether the suspension provisions applied.

Background and statutory framework

The governor's legal counsel asked about two indicted Georgetown County school officials. The letter quoted the state constitution's suspension provision and a statute governing indicted state and county officers, then addressed whether the assistant superintendent was an officer and whether the described charges involved moral turpitude.

Citations and references

• South Carolina Constitution, Article VI, Section 8
• S.C. Code Ann. § 8-1-100 and Section 59-24-60
• State v. Thrift

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-13-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995oct13tutko.pdf

Original opinion text

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

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The State of South Carolina
OFFICE OF THE ATTORNEY GENERAL

CHARLES MOLONY CONDON
ATTORNEY GENERAL

October 13, 1995

Angelia S. Tutko, Legal Counsel
Office of the Governor
Post Office Box 11369
Columbia, South Carolina 29211

Re: Informal Opinion
Dear Ms. Tutko:

You have asked for this Office’s opinion regarding the Governor’s authority to suspend the Georgetown County Superintendent of Education and the Georgetown County Assistant Superintendent of Education who were both recently indicted for Failure to Report to Law Enforcement and common law misconduct. As I understand the situation, the underlying facts of the situation allege that the Superintendent and Assistant Superintendent unlawfully failed to contact law enforcement authorities immediately upon notice that a person had engaged in activities on school property which resulted or could have resulted in injury or serious threat of injury to another person. The Indictment specifically charges the following facts:

-F, W_ENFOR NT

That D. P. McGann and Tommy Burbage did in
Georgetown County on or about March 8, 1995, while
holding the offices of Georgetown County Superintendent of Education and Georgetown County Assistant Superintendent of Education, respectively, after having been advised by ||

that their 16-year-old minor son, a
student of Waccamaw High School, had been sexually fondled by Tom Hoffmeyer, a teacher of Waccamaw High School, which information resulted in the Defendants having reason

Rembert C. Dennis Building + Post Orrick Box 11549 + Cott wpa. S.C. 29211-1549 © TELEPHONE: 803-734-3970 + FacsimiLe: 803-253-6283

Ms. Tutko
Page 2

October 13, 1995

Article VI, Section 8 of the South Carolina Constitution (1895 as amended)

to believe that a child’s physical or mental health or welfare had been or may be adversely affected, fail to report same or cause a report to be made of same to law enforcement, in violation of Section 20-7-510, Code of Laws of South Carolina, 1976, as amended.

AND THE GRAND JURORS FURTHER PRESENT UPON
THEIR OATH:

COUNT TWO - MISCONDUCT IN OFFICE

That D. P. McGann and Tommy Burbage, while in
office as the Georgetown County Superintendent of Education and Georgetown County Assistant Superintendent of Educa- tion, respectively, and having a duty of accountability to the people of Georgetown County and the State of South Carolina imposed by the common law on public officers and assumed by them as a matter of law upon their entering a public office, did in Georgetown County on or about March 8, 1995, breach that duty in that they did knowingly, willingly and corruptly engage in official misconduct by failing to contact law enforcement authorities immediately upon notice that a person had engaged in activities on school property which resulted or could have resulted in injury or serious threat of injury to another person, as required by Section 59-24-60, Code of Laws of South Carolina, 1976, as amended; and that such wilful and corrupt official misconduct is a breach of duties imposed by law and owed to the people of Georgetown County and the State of South Carolina, and such being the Defendants’ duty not to compromise himself, his public office or the judicial process and to be willing to properly and fairly discharge his duties; which acts or omissions on the part of the Defendants constituted the common law crime of miscon- duct in office.

Against the peace and dignity of the State and contrary to the statutes in such cases made and provided.

provides in pertinent part:

=a wf -_—

Ms. Tutko
Page 3
October 13, 1995

[a]ny officer of the State or its political subdivisions, except members and officers of the Legislative and Judicial Branches, who has been indicted by a grand jury for a crime involving moral turpitude or who has waived such indictment if permitted by law may be suspended by the Governor, until he shall have been acquitted. In case of conviction the office shall be declared vacant and the vacancy filled as may be provided by law. (emphasis added)

In addition, S.C. Code Ann. § 8-1-100 (1994 Supp.) provides as follows:

Except as provided in Section 8-1-110, any state or
county officer who is indicted in any court for any crime may, in the discretion of the Governor, be suspended by the Governor, who in event of suspension shall appoint another in his stead until he shall be acquitted. In case of conviction, the office shall be declared vacant by the Governor and the vacancy filled as provided by law.

This Office has often concluded that a county school superintendent is an officer. Op. Atty, Gen. August 9, 1991, affirming Op. Atty. Gen. April 5, 1991; Op, Atty, Gen. February 27, 1991; and Op. Atty, Gen. September 14, 1995. It makes no difference whether the superintendent is appointed or elected; he is still an officer. Thus, the question remains whether the position of assistant school superintendent is also considered an office for the purposes of the constitutional and statutory provisions referenced above. It is my conclusion that it is.

Although at least two prior opinions of this Office (Op. Atty. Gen. October 23, 1968 and Op. Atty. Gen. September 7, 1979) concluded that the position of assistant school superintendent is not an office within the meaning of the constitutional provision relating to dual officeholding, it must be noted these opinions, which concentrated on the fact that the position was not created by statute, were rendered prior to the South Carolina Supreme Court’s decision in State v. Thrift, S.C. , 440 S.E.2d 341 (1994). In Thrift, one of the questions before the Court was how South Carolina defines a public official for the purposes of common law criminal prosecutions. The trial judge had earlier dismissed the indictments for common law misconduct in office against various Highway Department officials, holding that they were public employees and not public officials. The Supreme Court, however, traced some of the various definitions applied to South Carolina misconduct in office cases dating as far back as 1907 and concluded that the "common thread ..." is not whether an individual is appointed or

Ms. Tutko
Page 4
October 13, 1995

elected to office by the public or a specific arm of government, but "... lies in the exercise of the powers of or representation of the sovereign .... A reading of the common law definitions of public official shows the greater the duty to the public at large, the more likely it is that the individual will be a public official." Thrift, 440 S.E.2d at 356. Therefore, recognizing that the duties of the indicted Highway Department officials were of great concern to the public at large, the Court ruled that the trial judge erred in finding that the individuals were not public officials subject to prosecution for common law misconduct in office. It is important to note that one or more of the Highway positions at issue in Thrift were not created by statute. There is no question that county assistant superintendents perform duties exercising a portion of the sovereign power of the State. See, e.g. Ludlam_v. Sch. Dist. of Grvile, 455 S.E.2d 177 (S.C. 1995) [assistant superintendent participated in decision to terminate teacher]; Snipes v. McAndrew, 280 S.C. 320, 313 S.E.2d 294 (1984) [2 assistant superintendents of District testified that approximately one-third of principals were being evaluated under certain plan]. See also, Reynolds v. Bd. of Ed. of Lexington, 311 Ky. 458, 224 S.W.2d 442 (finding assistant superintendent of education an officer, based largely on duties performed); Cf. Act No. 393 of 1912 (creating office of assistant superintendent in certain counties to function in superintendent’s absence).

Thus, based on the Court’s reasoning in Thrift that for the purposes of misconduct in office prosecutions, one should look more closely at the individual’s powers and duties rather than the means by which he occupies his position, it is my opinion that an assistant school superintendent is an officer within the meaning of Article VI, Section 8 of the South Carolina Constitution and Code Section 8-1-100. . 7

You have also asked whether the Indictment charges a crime of moral turpitude. It is my conclusion that it does.

As our Supreme Court has previously held, "moral turpitude” is defined as

an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man ... . Moral turpitude implies something immoral in itself, regardless of whether it is punishable by law as a crime. ...

State v. Horton, 271 S.C. 413, 414, 248 S.E.2d 263 (1978); Op. Atty. Gen. February 9, 1995.

Ms. Tutko
Page 5
October 13, 1995

Here, the grand jury has found probable cause that the Superintendent and Assistant Superintendent "knowingly, willingly and corruptly engaged in official misconduct by failing to contact law enforcement authorities immediately upon notice that a person had engaged in activities on school property which resulted or could have resulted in injury or serious threat of injury to another person ... and that such willful and

i i duct i h of duties ii law and owed to the people
of Georgetown County and the State of South Carolina ....". (Emphasis added.) Specifically, the Indictment alleges a violation of S.C. Code Ann. 59-24-60 (1994 Supp.) which imposes a requirement on school administrators to contact law enforcement authorities when criminal conduct occurs. Therefore, consistent with this Office’s long- standing policy of not attempting to second-guess grand jury determinations, it appears that the Indictment charges a crime of moral turpitude. Accordingly, it is my opinion that the Governor has the authority to suspend the individuals in question for an offense involving moral turpitude and also the authority to appoint officers to serve in the place of the suspended officials pending their trial. Article VI, Section 8 South Carolina Constitution, S.C. Code Ann. 8-1-100 (1994 Supp.).

This letter is an informal opinion only. It has been written by a designated Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

Very truly yours,
Zeb C. Williams, III

Deputy Attorney General
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