Do South Carolina charter school board members have to be registered voters, or is living in the state enough?

Official title

Opinion addressing whether charter school board members must meet the qualifications of an elector.

Requester

Requested by Mr. Chris Loewer, Board Director, Greenville Technical Charter High School.

Plain-English summary

A director of Greenville Technical Charter High School asked a narrow eligibility question: to serve on a charter school's board of directors, is South Carolina residency enough, or must a board member also be eligible to vote? The charter school statute, S.C. Code § 59-40-50(B)(9), says board members "must be residents of the State of South Carolina" but does not separately say they must be qualified electors.

The Attorney General concluded that residency is probably not the whole story. Article XVII, Section 1 of the South Carolina Constitution says no person may be "elected or appointed to any office in this State unless he possess the qualifications of an elector." The state Supreme Court held in McLure v. McElroy that this requirement reaches not just constitutional offices but statutorily created offices too, and applies whether the office is filled by election or appointment.

The remaining question was whether a charter school board seat is an "office." The AG pointed to its own line of opinions, going back to 2003 and reaffirmed in 2019, holding that charter school board members hold public office for dual-office-holding purposes under Article XVII, Section 1A, because they exercise a portion of the sovereign power of the State: they govern the school, set budgets and curriculum, and spend public funds. Drawing on a 2010 opinion that treated county veterans affairs officers the same way under both Section 1 and Section 1A, the office concluded a charter school board member is likely an officer under Section 1 as well, and therefore must meet the qualifications of an elector.

The opinion also rejected two arguments for treating charter board members differently. The fact that charter board members are chosen in a different way (separate from general elections, by the school community) does not matter, because the elector requirement applies regardless of how someone reaches office. And the charter law's general exemption in § 59-40-50(A) from laws "applicable to a public school, a school board, or a district" does not let a charter school opt out of a state constitutional requirement; reading it that way, the AG said, would likely render the exemption unconstitutional.

What this means for you

Charter school boards and their counsel: Based on this opinion, you should treat a prospective board member as needing to meet the qualifications of an elector, not just South Carolina residency. The AG read the constitutional officer requirement to apply to charter board seats because the office has held repeatedly that those seats are public offices.

People who want to serve on a charter school board: The opinion indicates you likely need to be qualified to register and vote in South Carolina, in addition to being a state resident. Note the statute separately bars anyone convicted of a felony from being elected to a board of directors.

Authorizers and school districts: The AG concluded the charter law's exemption from school-board rules in § 59-40-50(A) does not extend to constitutional requirements, so it does not exempt charter board members from Article XVII, Section 1.

Common questions

Is South Carolina residency enough to serve on a charter school board?
The statute requires residency, but the AG concluded that is probably not sufficient by itself. A court would likely also require a charter board member to meet the qualifications of an elector under Article XVII, Section 1.

What does "qualifications of an elector" mean?
It refers to the requirements to be a qualified voter in South Carolina (such as citizenship, age, and residency for voting). The Constitution ties eligibility for public office to those voter qualifications.

Does it matter that charter board members are picked differently from regular school boards?
No, according to the opinion. The AG said the elector requirement does not change based on how a person reaches office, and it applies even to appointed officers, not just elected ones.

Why are charter school board members treated as public officers?
Because the AG has repeatedly found they exercise part of the State's sovereign power: they serve as the governing body of the school, make policy, set budgets and curriculum, and spend public funds. That is why prior opinions classified the seat as an office for dual-office-holding purposes.

Background and statutory framework

Chapter 40 of Title 59 governs South Carolina charter schools. S.C. Code § 59-40-50(B)(9) requires each charter school to have a board of directors of seven or more members, sets composition rules (background in K-12 education or business, election by employees and parents), requires all members to be South Carolina residents, and bars anyone convicted of a felony from being elected to the board. Section 59-40-40 provides that charter schools are nonprofit corporations, which is why the AG had to explain why board members are nonetheless public officers.

The constitutional hook is Article XVII, Section 1, which conditions holding "any office in this State" on possessing the qualifications of an elector, and Article XVII, Section 1A, the dual-office-holding provision the AG's prior opinions applied to charter board members. McLure v. McElroy, 211 S.C. 106, 44 S.E.2d 101 (1947), established that the elector requirement reaches statutory offices and applies to appointed as well as elected officers.

On the exemption argument, the AG relied on McNaughton v. Charleston Charter School for Math & Science, Inc., 411 S.C. 249, 768 S.E.2d 389 (2015), where the Supreme Court held that the charter exemption in § 59-40-50(A) did not let a charter school avoid the attorney's-fees statute, S.C. Code § 15-77-300, because that provision applies to state actors generally, not just schools. By analogy, Article XVII, Section 1 applies to all public officers, so the exemption does not reach it. The office added that under Segars-Andrews v. Jud. Merit Selection Comm'n, 387 S.C. 109, 691 S.E.2d 453 (2010), the Legislature cannot by statute exempt anyone from a state constitutional requirement, so reading § 59-40-50(A) that way would render it unconstitutional.

Citations

• S.C. Code § 59-40-50(B)(9), § 59-40-50(B) (charter school board composition and residency requirement)
• S.C. Code § 59-40-50(A) (charter school exemption from laws applicable to public schools, boards, and districts)
• S.C. Code § 15-77-300 (attorney's fees against state actors)
• S.C. Const. art. XVII, § 1 (officeholders must possess qualifications of an elector)
• S.C. Const. art. XVII, § 1A (dual office holding)
• McLure v. McElroy, 211 S.C. 106, 44 S.E.2d 101 (1947)
• McNaughton v. Charleston Charter School for Math & Science, Inc., 411 S.C. 249, 768 S.E.2d 389 (2015)
• Segars-Andrews v. Jud. Merit Selection Comm'n, 387 S.C. 109, 691 S.E.2d 453 (2010)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-charter-school-board-members-must-meet-the-qualifications-of-an-elector/
• Original PDF: https://www.scag.gov/media/nkmn2po5/03546094.pdf

Original opinion text

Alan Wilson
Attorney General

March 29, 2024

Chris Loewer

Director
Greenville Technical Charter High School

Post Office Box 5616
Greenville, South Carolina 29606
Dear Mr. Loewer:

We received your request for an opinion of this Office concerning the eligibility requirements to
serve on the Board of Directors at the Greenville Technical Charter High School (“GTCHS”).
Specifically, you ask “whether a charter school board member would be required to be both a
resident and be able to vote or if, as charter law states, residency is enough.”
Law/Analysis

Chapter 40 of title 59 of the South Carolina Code governs charter schools. As you reference in
your letter, section 59-40-50(B)(9) of the South Carolina Code (2020), provides for the
appointment of a board of directors for each charter school. This provision states:
(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 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

i< chitjER'l C. DENNIS BiULDJNG

0 Post Office 3ox i 1549

Colombia, SC 2921 1-1549

Telepi lone 15 >3-7 34-3970 .

. acl!

c.'B- 25.1-628 \

Chris Loewer
Page 2

March 29, 2024

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. § 59-40-5 0(B) (emphasis added). As such, the Legislature clearly requires those
serving on a charter school board to be South Carolina residents. However, you question whether
they must also be eligible to vote.

The South Carolina Constitution provides qualifications to hold office in South Carolina and states
as follows: “No 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. Moreover, Article XVII, § 1A of

the South Carolina Constitution (2009) provides in relevant part, “Every qualified elector is
eligible to any office to be voted for, unless disqualified by age, as prescribed in this Constitution.”
Our Supreme Court, in McLure v. McElroy, 211 S.C. 106, 113, 44 S.E.2d 101, 105 (1947),
overruled on other grounds by 'WtaNsr v. Recreation Dist., 328 S.C. 83, 492 S.E.2d 79 (1997),
clarified this requirement not only applies to all constitutional offices, but also applies to statutorily
created offices regardless of whether it is expressly provided for by the Legislature.
We have not specifically addressed the application of Article XVII, § 1 to charter school board
members. However, as you acknowledge in your request letter, on several occasions this Office
determined a charter school board member is an office holder for purposes of the prohibition on
dual office holding contained in Article XVII, § 1A. In a 2019 opinion, citing to several prior
opinions, we opined:

We have also determined that a member of a charter school board holds a public
office:

In an opinion dated February 26, 2003, we addressed the issue of
whether a position on a charter school’s governing board is an officer
for dual office holding purposes.
The position of board member is established by statute, a term
is set forth therefor, and the board members exercise a portion
of the sovereign power of the State. While taxing or bond
authority is expressly denied, in terms of other authority, it is the

board which serves as the “governing body” of the school. Board
members decide all matters related to the operation of the charter
school,

including

budgeting,

curriculum

and

operating

procedures. Obviously, the board expends public funds. Thus,

the

board

possesses

policy-making

duties

and

functions

Chris Loewer
Page 3
March 29, 2024

consistent with the operation of the school including the decision
to ‘“elect to comply with’ those laws or regulations which are
applicable to a public school, a school board, or a district, ...”
which are not otherwise specified as applicable. In essence,
board members make policy decisions in keeping with the
Legislature’s desire that charter schools “take responsible risks

and create new, innovative, and more flexible ways of educating
children within the public school system.” Clearly, board
members exercise a portion of the sovereign power of the State.
Op. S.C. Atty. Gen., February 26, 2003

(citations omitted). We

recognized the fact section 59-40-40 states charter schools are nonprofit
corporations and the fact that members of a nonprofit corporation’s
board traditionally are not public officers for dual office holding

purposes. Id. However, in determining a charter school likely is the alter
ego of the State, we concluded a position on a charter school’s
governing board is an office for dual office holding purposes. Id.
Op. S.C. Atty. Gen„ 2006 WL 703694, at *3 (Mar. 9, 2006).
Op. Att’y Gen., 2019 WL 5669046 (S.C.A.G. Oct. 21, 2019).

Thus, we continue to believe a

member of a charter school board holds an office for purposes of Article XVII, § 1 A of the South
Carolina Constitution.
Posed with a similar question in 2010, we considered whether the requirement that an officer meet

the qualifications of an elector under Article XVII, § 1 applied to county veterans affairs officers.
Op. Att’y Gen., 2010 WL 3505054 (S.C.A.G. Aug. 2, 2010). Citing to prior opinions finding
county veterans affairs officers are officers for purposes of Article XVII, § 1 A, we concluded “a
county veterans affairs officer would likely be an officer for purposes of article XVII, section 1 .”
Id. Given the prior opinions of this Office concluding charter school board members are officers
for purposes of Article XVII, § 1 A, we similarly believe a charter school board member is likely
an officer for purposes of Article XVII, §1 and therefore, must meet the qualifications on an

elector.
In your letter, you suggest charter school board members “could be considered differently than
other elected state officials and traditional school board members.” You list the following reasons

to support different treatment of charter school board members:
1.

Public Charter School Board Elections are not held in conjunction with the
general election.

2.

The majority of the Public Charter School Board Elections are not held at
the same time period as the general election takes place.

Chris Loewer
Page 4

March 29, 2024

3.

Public Charter School Board Elections are only voted on by members of
that particular school community.

We agree charter school board members obtain their offices in a manner different than traditional
public school boards. However, the requirement that they meet the qualifications of an elector does
not change with how they are elected. Notably, as our Supreme Court pointed out in McLure,
even if these members were appointed rather than elected, they are still required to meet the
qualifications of an elector. McLure, 21 1 S.C. at 119, 44 S.E.2d at 108. As such, it matters only
that they are officers pursuant to Article XVII, § 1 of the South Carolina Constitution and we
believe they likely are.
You also point to language in section 5 9-40-5 0(A) of the South Carolina Code (2020) that states,
“Except as otherwise provided in this chapter, a charter school is exempt from all provisions of
law and regulations applicable to a public school, a school board, or a district, although a charter
school may elect to comply with one or more of these provisions of law or regulations.” Our

Supreme Court interpreted this provision in McNaughton v. Charleston Charter School for Math
and Science, Inc., 41 1 S.C. 249, 768 S.E.2d 389 (2015). The Court considered the application of
the state action statutes to charter schools given section 59-40-50(A) and specifically whether the
attorney’s fees provision in section 15-77-300 applied to charter schools. McNaughton v.
Charleston Charter Sch. for Math & Sci., Inc., 41 1 S.C. 249, 268-69, 768 S.E.2d 389, 400 (2015).
The Court determined:

The purpose of 5 9-40-5 0(A) is to distinguish between charter schools and other
public schools, school boards, or school districts by providing charter schools
with more flexibility in their operations. While section 15-77-300 is generally
applicable to public schools, school boards, or districts, the provision also
covers other state actors and “political subdivisions of the State.” In other
words, the provision was not enacted especially for public schools, school

boards, or school districts, and is not a provision that a charter school may opt
out of merely because of its charter school status as opposed to a traditional
public school. Therefore, the exemption in section 59-40-50(A) does not cover
section 15-77-300, and we hold that a court may find a charter school liable for
attorney's fees under section 15-77-300.

Id. Similarly, Article XVII, § 1 applies to all public officers, not just traditional public school board
members. Therefore, we believe a court would similarly find section 59-40-5 0(A) does not prevent
the application of the constitutional requirement that all officers possess the qualifications on an
elector.

Moreover, “ [t]he provisions of the state constitution are not a grant but a limitation of legislative
power, so that the Legislature may enact any law not expressly, or by clear implication, prohibited
by the state or federal constitution.” Segars-Andrews v. Jud. Merit Selection Comm’ n, 387 S.C.
109, 118, 691 S.E.2d 453, 458 (2010). Therefore, section 59-40-50(A) cannot exempt charter

Chris Loewer
Page 5

March 29, 2024

schools from provisions contained in the South Carolina Constitution.

Reading section 59-40-

50(A) as exempting charter school board members from Article XVII, § 1 would likely render it
unconstitutional.

As we stated on many occasions, “It is elementary that a court is bound to

construe a statute in a constitutional manner, if possible.” Op. Att’y Gen., 2023 WL 5319324

(S.C.A.G. Aug. 1 1 , 2023). As such, we do not believe a court would construe section 59-40-50(A)
as exempting charter school board members from Article XVII, § 1 of the South Carolina
Constitution.
Conclusion

Members of charter school boards are selected in a different manner than traditional public school

boards. Nonetheless, Article XVII, § 1 requires all South Carolina officers, regardless of whether
they are appointed or elected, to meet the qualifications of an elector. While this Office has not
previously considered whether charter school board members are officers for purposes of Article
XVII, § 1, on several occasions we determined they are officers for purposes of Article XVII, §
1A.

As such, we believe a court would likely find charter school board members must meet the

qualifications of an elector in order to serve.

Sincerely,

Sydney Milling^

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

^Robert D. Cook
Solicitor General