Could a South Carolina charter school board member help start a second charter school?

Plain-English summary

In 2017, counsel for a South Carolina public charter school asked whether its board chair could join the charter committee forming a separate proposed school. The Attorney General concluded that a court would likely find no violation of the state constitutional ban on holding two public offices at the same time.

The AG continued to regard a public charter school board seat as an office: the board exercised public authority in administering a school. The proposed school’s charter committee had a different role. It prepared and governed through the application stage, then dissolved once a board of directors was elected. Although the committee could make substantial application and startup decisions, the AG reasoned that it did not exercise the state’s sovereign authority in the same way and did not hold a continuing office. It also noted the absence of several usual markers of office, such as a required oath or fixed tenure.

The answer concerned the temporary committee for a separate proposed school. It did not declare that one person could serve on two operating public charter school boards.

Currency note

This opinion was issued in 2017. 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 AG regard a charter school board member as a public officer?
A: Yes. It repeated its view that a member of an operating public charter school board held a public office for the constitutional test.

Q: Why was the new school’s charter committee different?
A: The committee existed for the application stage and dissolved after election of the school board. The AG viewed that limited role as lacking the continuing sovereign authority of a public office.

Q: Did it matter that the committee could hire staff or sign a charter contract?
A: The opinion acknowledged those statutory powers, but concluded that their temporary application stage role still did not make committee membership a public office.

Background and statutory framework

The opinion applied the constitutional dual office rule by asking whether both positions were public offices. It compared the continuing administration of an existing public charter school with a charter committee’s statutory work before the proposed school elected its board.

Citations and references

• S.C. Code Ann. § 59-40-40(7) defined the committee’s role through the application process and its dissolution after board election.
• S.C. Code Ann. § 59-40-60(E) listed its application stage powers.

Official title

On dual office holding (board chairperson of S.C. public charter school and a member on a charter committee for a separate proposed charter school, Sec. 59-40-40(7)).

Requester

Tyler R. Turner, Esquire, counsel to Cyber Academy of South Carolina.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-18-2017/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/10/Turner-T.-OS-10197-FINAL-Opinion-10-18-2017-01500415xD2C78.pdf-01507593xD2C78.pdf

Original opinion text

^outh
Alan Wilson
Attorney General

October 18, 2017

Tyler R. Turner, Esq.
Turner Caldwell

914Richland St., Ste. A-101
Columbia, SC 29201

Dear Mr. Turner:

Attomey General Alan Wilson has referred your letter to the Opinions section. Your letter forwards an opinion request from a public charter school board chairperson which asks the following:

I am the Board Chairperson of a South Carolina public charter school. I respectfully request the guidance of the South Carolina Attomey General's Office regarding whether a board member of a South Carolina public charter school may also serve as a member on a "charter committee" as defined in S.C. Code Ann. §

59_40-40(7) for a separate proposed charter school, or if such an arrangement would constitute dual office holding as prohibited by the State Constitution. Law/Analysis

It is this Office's opinion that a person who serves as a board member of a South

Carolina public charter school and as a member on a "charter committee" as defined in S.C. Code Ann. § 59-40-40(7) for a separate proposed charter school does not violate the prohibition against holding dual offices contained in the South Carolina Constitution. Article XVII, § 1A of the South Carolina Constitution prohibits a person from holding "two offices of honor or profit at the same time," with certain exceptions which are inapplicable to this request. A person violates this provision if he holds two or more public offices which "involv[e] an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concemed, and which are continuing, and not occasional or intermittent,..." Sanders v. Belue. 78 S.C. 171, 58 S.E. 762 (1907). In State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980), the

South Carolina Supreme Court stated that relevant factors for determining whether a position would be considered a public office include whether statutes, or other such authority, establish the position, the qualifications for appointment, duties, tenure, require an oath for the position, or

otherwise authorize the position to exercise a sovereign power of the State.^ No single criterion ' Op. S.C. Attv. Gen.. 1996 WL 599391 (September 6, 1996)(sovereignty traditionally includes power to tax, power of eminent domain, and police power). Rembert C. Dennis BuiLDfNG . post Office Box 11549 • Columbia,SC 29211-1549 . Telephone 803-734-3970 • Facsimile 803-253-6283

Tyler R. Turner, Esq.
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October 18, 2017

is dispositive and it is not necessary that a position exhibits all the criteria to find that an individual is a public officer. Id For this Office to provide an opinion on whether an individual violates the prohibition against dual office holding, we must examine the positions to determine whether they are both public offices.

In this Office's February 26, 2003 opinion, we opined that a board member of

public charter school holds a public office within the meaning of Article XVII, § 1 A of the South Carolina Constitution as follows: Here, § 59-40-40(1) specifies that a charter school "is accountable to the board of trustees of that district, which grants it charter." Moreover, pursuant to § 59-40-

40(2), the charter school "is considered a public school and part of the school district in which it is located for the purposes of state law and the state

constitution." By virtue of § 59-40-50(B)(4), a charter school is considered a "school district for purposes of tort liability under South Carolina law ...." In view of these provisions and others contained in the Act, as well as the fact that board members of the charter school are exercising a portion of the sovereign

authority of the State, it is our opinion that board members of a charter school are "public officers" for dual office holding purposes. Op. S.C. Attv. Gen.. 2003 WL 21040135 (February 26, 2003). This Office continues to be of the opinion that a board member of a public charter school holds a public office within the meaning of Article XVII, § 1A of the South Carolina Constitution.

Consequently, a board member of a

public charter school may not hold another office of honor or profit without violating the prohibition against holding dual offices.

It is this Office's opinion that a member of a "charter committee" does not hold a public office within the meaning of Article XVII, § 1A of the South Carolina Constitution.

South

Carolina law defines a charter committee as "the governing body of a charter school formed by the applicant to govern through the application process and until the election of a board of directors is held." S.C. Code Ann. § 59-40-40(7).

Following the election of the board of

directors, "the charter committee is dissolved." Id

During the application process, the charter

committee is responsible for and has the power to do the following: (1) submit a letter of intent and an application to operate as a charter school, sign a charter school contract, and ensure compliance with all of the requirements for

charter schools provided by law;
(2) employ and contract with teachers and nonteaching employees, contract for

services, and develop pay scales, performance criteria, and discharge policies for its employees. All teachers whether certified or noncertified must undergo the background checks and other investigations required for certified teachers, as

provided by law, before they may teach in the charter school; and

Tyler R. Turner, Esq.
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October 1 8, 20 1 7

(3) decide all other matters related to the operation of the charter school, including budgeting, curriculum, and operating procedures.

S.C. Code Ann. § 59-40-60(E). The listed powers are a delegation of authority by the General Assembly to charter committees, but they are only for a limited duration which ends with the State's approval for the school's charter. See Op. S.C. Attv. Gen.. 2007 WL 4686609 (December

3, 2007) (opining that charter committees possess authority delegated from the General Assembly over the hiring and firing of charter school teachers and employees). However, this authority is not the sovereign authority of the State nor would a charter school function as the "alter ego" of the State prior to the State's approval. Cjf On. S.C. Attv. Gen.. 2003 WL 21040135 (February 26, 2003) ("In our opinion, as a 'public school,' the charter school and its governing board, which administers the school, function as the 'alter ego' of the State and should

be so treated for dual office holding analysis."). Even if a court finds that a charter committee exercises "some part of the sovereign power" of the State, the members of such a charter committee do not hold a position which is "continuing, and not occasional or intermittent." Sanders v. Belue. supra. The further Crenshaw considerations, such as statutorily defined qualifications for appointment, tenure, and requiring an oath of office, are not present. Based on the intermittent nature of a position as a member of a charter committee and that the majority of the Crenshaw considerations are not present, it is this Office's opinion that a member of a charter committee does not hold a public office within the meaning of Article XVII, § 1A of the South Carolina Constitution. Therefore, it is this Office's opinion that a court would likely find a person who serves both as a board member of a public charter school and as a member on a "charter committee" for

a separate proposed charter school would not violate the prohibition against holding dual offices as set forth in the South Carolina Constitution. Conclusion

It is this Office's opinion that a court would likely find a person who serves as both a board member of a public charter school and as a member on a "charter committee" for a

separate proposed charter school would not violate the prohibition against holding dual offices contained in the South Carolina Constitution.

Our opinion is based on our analysis of both

positions under the factors established by the South Carolina Supreme Court in Sanders v. Belue. 78 S.C. 171, 58 S.E. 762 (1907), and State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980).

This Office continues to be of the opinion that a board member of a public charter

school holds a public office within the meaning of Article XVII, § 1A of the South Carolina Constitution.

However, this Office does not believe that a member of a "charter committee"

holds a public office due to the intermittent nature of the position. Therefore, because this Office believes that only one of the two positions constitutes an office for dual-office holding purposes,

Tyler R. Turner, Esq.
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October 18,2017

it is this Office's opinion that a person would not violate Article XVII, § 1A of the South Carolina Constitution as a result of holding both positions.

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General