Can two remaining directors fill vacancies and adopt bylaws for a South Carolina nonprofit volunteer fire department?

Plain-English summary

Representative Richard Yow asked how Teal's Mill Rural Volunteer Fire Department, Inc. could continue operating after its original directors died or stopped participating and no approved bylaws could be located. The Attorney General explained the available South Carolina nonprofit-corporation rules but declined to decide which one fits the department's actual records and membership structure.

A South Carolina nonprofit must have a board with at least three directors. If vacancies leave fewer than a quorum, section 33-31-811 can allow a majority of the remaining directors to fill the vacancies, unless the articles or bylaws provide a different method. Members, if the corporation has them, may also have authority to fill vacancies.

Bylaw authority depends on how the nonprofit is organized. The incorporators or initial board adopt the first bylaws. Later amendments may be made by the board, voting members, or both, subject to the articles, existing bylaws, and special statutory rules for quorum and voting requirements. The AG would not decide whether the current volunteer firefighters qualify as members, trustees, or some other authorized group.

What this means for you

Remaining nonprofit directors

The opinion says the articles of incorporation and any existing bylaws must be reviewed first. If they do not supply a different vacancy procedure, section 33-31-811 may allow the remaining directors, even when fewer than a quorum, to fill enough vacancies for the board to function.

Voting members of a nonprofit

Members may be able to fill board vacancies or demand a special meeting. Section 33-31-702 permits holders of at least five percent of the voting power to deliver a written demand describing the meeting's purposes, subject to the corporation's articles and bylaws.

Volunteer firefighters at Teal's Mill

The opinion does not decide that currently serving firefighters are trustees, members, directors, or otherwise authorized to act for the corporation. That classification depends on facts and governing documents the AG could not determine in an advisory opinion.

Nonprofit boards considering bylaw changes

Directors do not always have exclusive bylaw authority. In a corporation with voting members, both directors and members may have amendment power, and certain quorum or voting provisions can be reserved to members.

Common questions

Q: Can a South Carolina nonprofit operate with only two directors?
A: The opinion says a nonprofit board must have at least three directors. If only two remain, section 33-31-811 may allow them to fill vacancies, depending on the articles and bylaws.

Q: Who adopts a nonprofit's first bylaws?
A: Under section 33-31-206, the incorporators or the board of directors adopt the initial bylaws.

Q: Can nonprofit members amend the bylaws?
A: Sometimes. In a nonprofit with voting members, both the board and members may have amendment authority. The articles, existing bylaws, and the subject of the amendment can reserve particular decisions to members.

Q: Can members force a special meeting?
A: Section 33-31-702 allows holders of at least five percent of the voting power to demand a special meeting in writing, except where the statute permits different treatment for a religious corporation. The demand must describe the meeting's purposes.

Q: Did the AG decide how Teal's Mill should restore its board?
A: No. The opinion describes vacancy, meeting, bylaw, and court procedures in the abstract, but says choosing the proper remedy for this corporation requires factual findings outside the AG's opinion process.

Background and statutory framework

The South Carolina Nonprofit Corporation Act requires a board of directors to exercise corporate powers and manage the corporation's affairs. S.C. Code Ann. § 33-31-803 sets a three-director minimum, while section 33-31-811 supplies default vacancy rules when the governing documents do not provide otherwise.

The Act separates initial bylaws from later amendments. S.C. Code Ann. § 33-31-206 addresses adoption of the first bylaws. Sections 33-31-1020 and 33-31-1021 govern later board and member amendments, with additional member protections for heightened quorum or voting requirements.

The Act also supplies procedures when ordinary governance has broken down. Members can demand a special meeting under section 33-31-702. The opinion further identifies court-ordered meeting or voting procedures, but it does not determine whether Teal's Mill satisfies the factual conditions for any one procedure.

Citations and references

Statutes:

• S.C. Code Ann. § 33-31-801 (1976 Code, as amended)
• S.C. Code Ann. § 33-31-803 (1976 Code, as amended)
• S.C. Code Ann. § 33-31-811 (1976 Code, as amended)
• S.C. Code Ann. § 33-31-206 (1976 Code, as amended)
• S.C. Code Ann. § 33-31-1020 (1976 Code, as amended)
• S.C. Code Ann. § 33-31-1021 (1976 Code, as amended)
• S.C. Code Ann. § 33-31-702 (1976 Code, as amended)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-the-directors-and-bylaws-of-the-teal-s-mill-rural-volunteer-fire-department-inc-a-nonprofit-corporation/
• Original PDF: https://www.scag.gov/media/qkppcazg/03315687.pdf

Original opinion text

1

Alan Wilson
Attorney General

June 1 9, 2023

The Honorable Richard L. Yow

178 Mill Street
Chesterfield, SC 29709

Dear Representative Yow:

You have requested an opinion of this Office regarding the directors and bylaws of Teal’s Mill
Rural Volunteer Fire Department, Inc., a nonprofit corporation. In your request letter, you
explain that “the original directors of this organization have passed away, or are otherwise no

longer active with the day-to-day operations of this group.” You also inform us that “there are
no current bylaws for this group that their directors approved.” Your concern is “how to keep
this group viable given their reported lack of bylaws or directors to call annual meetings or
conduct other business of this nonprofit organization.” You have presented us with several
questions which will be answered in turn.
LAW/ANALYSIS

As we have stated in many prior opinions, this Office is not empowered to make factual

findings.1 However, we can provide you with the general law regarding nonprofit corporations.
We will now respond to each of your questions.
1.

If only two of the original directors are around, do they retain the authority to call an annual
meeting to elect directors and conduct other necessary business?

A nonprofit corporation must have a board of directors to exercise the corporate powers and

manage the affairs of the corporation.2 S.C. Code Ann. § 33-31-801 (1976 Code, as amended).
The number of directors on a board of directors is set by the nonprofit corporation’s articles of
incorporation or bylaws.

S.C. Code Ann. § 33-31-803 (1976 Code, as amended).

However,

1 See Op. S.C, Atty. 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.”)

2 The board of directors is authorized, however, to delegate all or some of its duties and responsibilities to another
person. See S.C. Code Ann. § 33-31-801.
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The Honorable Richard L. Yow
Page 2

June 1 9, 2023

there must be a minimum of three directors. Id. Because a board of directors acts as a whole,
any vacancies must be filled for a nonprofit corporation to transact business. Section 33-31-81 1
provides alternative methods of filling vacancies:
(a) Unless the articles or bylaws provide otherwise, and except as
provided in subsections (b) and (c), if a vacancy occurs on a board
of directors, including a vacancy resulting from an increase in the
number of directors:
(1) the members, if any, may fill the vacancy . . .

(2) the board of directors may fill the vacancy; or
(3) if the directors remaining in office constitute
fewer than a quorum of the board, they may fill the
vacancy by the affirmative vote of a majority of all
the directors remaining in office . . .

S.C. Code Ann. § 33-31-811 (1976 Code, as amended).
The Official Comment to section 33-31-811 explains that “vacancies arising when directors
named in the original articles cease to be directors .... may be filled by the members or the
board in the absence of a contrary article or bylaw provision.”

Official Comment, S.C. Code
Ann. § 33-31-811. The Official Comment also states that “[i]f the sole remaining director of [or]
directors constitute less than a quorum, section 8.11(a)(3) allows the remaining director or
directors to fill the vacancy if the board is authorized to fill the vacancy.” Id.
In the question you present, the articles of incorporation and bylaws of the nonprofit corporation
should be reviewed and any provisions regarding vacancies on the board of directors should be
complied with. If vacancies are not addressed, then one of the alternative methods in section 3331-811 may provide a remedy.
2.

Aren’t they the officials that have to approve the bylaws the department operates under?

We understand your question as being whether a nonprofit corporation’s board of directors must
adopt and amend the corporate bylaws. If this is not correct, please let us know. Either the
incorporators or the board of directors adopts the initial bylaws of a nonprofit corporation. S.C.
Code Ann. § 33-31-206 (1976 Code, as amended). The bylaws can be amended by either the
board of directors or the members, depending on whether the nonprofit corporation has members
and the subject matter of the bylaw.
If a nonprofit corporation does not have members or its members are not entitled to vote on an

amendment to the bylaws, its board of directors can adopt amendments with the appropriate

The Honorable Richard L. Yow
Page 3
June 1 9, 2023

notice. S.C. Code Ann. § 33-31-1020 (1976 Code, as amended). In a nonprofit corporation with
voting members, both the directors and the members can amend or repeal the bylaws. See S.C.
Code Ann. § 33-31-1021 (1976 Code, as amended). However, a board of directors cannot amend
or repeal bylaws when the articles of incorporation or the South Carolina Nonprofit Corporation

Act3 have restricted such action to the members or the members have expressly prohibited the
board of directors from acting in a bylaw. Id.
Additionally, a board of directors can be prohibited from amending bylaws with a particular
subject matter. Only the members can adopt or amend bylaws that fix a greater quorum or voter

requirement for members than is required by statute. S.C. Code Ann. § 33-31-1023 (1976 Code,
The members amend or repeal bylaws that fix a greater quorum or voter
requirement for the board of directors if the members originally adopted the bylaw. S.C. Code
as amended).

Ann. § 33-31-1024 (1976 Code, as amended).4

Therefore, in some instances the adoption and

amendment of corporate bylaws may not be restricted to a nonprofit corporation’s board of
directors.
3- Is there any statutory provision, common law consideration, or equity principle that would
allow the currently serving volunteer firefighters as trustees, or other legal designation to

meet, adopt bylaws, and maintain this group in good standing?

This Office cannot make factual findings and the question you present is fact-specific. However,
section 33-31-702 provides various means for a nonprofit corporation with members to hold a
special meeting:
(a) A corporation with members shall hold a special meeting of
members:
(1) on call of its board or the person or persons

authorized to do so by the articles or bylaws; or
(2) except as provided in the articles or bylaws of a
religious corporation, if the holders of at least five
percent of the voting power of any corporation sign,
date, and deliver to any corporate officer one or

more written demands for the meeting describing
the purpose or purposes for which it is to be held.

3 S.C. Code Ann. § 33-31-101 et seq ( 1 976 Code, as amended).

4 Both the members and the directors can amend or repeal bylaws that fix a greater quorum or voter requirement for
the board of directors if the board of directors originally adopted the bylaws. S.C. Code Ann. § 33-31-1024.

The Honorable Richard L. Yow
Page 4
June 1 9, 2023

(b) The close of business on the thirtieth day before delivery of the
demand or demands for a special meeting to any corporate officer
is the record date for the purpose of determining whether the five
percent requirement of subsection (a) has been met.
(c) If a notice for a special meeting demanded under subsection
(a)(2) is not given pursuant to Section 33-31-705 within thirty days
after the date the written demand or demands are delivered to a

corporate officer, regardless of the requirements of subsection (d),
a person signing the demand or demands may set the time and
place of the meeting and give notice pursuant to Section 33-31705.

(d) Special meetings of members may be held in or out of this

State at the place stated in or fixed in accordance with the bylaws.
If no place is stated or fixed in accordance with the bylaws, special
meetings must be held at the corporation's principal office.
(e) Only those matters that are within the purpose or purposes
described in the meeting notice required by Section 33-31-705 may

be conducted at a special meeting of members . . .

S.C. Code Ann. § 33-31-702 (1976 Code, as amended).
A lawsuit provides another means of compelling a meeting.

Pursuant to S.C. Code Ann. § 3331-703 (1976 Code, as amended), a member who signed a demand for a special meeting and a

person entitled to call a special meeting can apply to a court for an order requiring a special
meeting to be held. Additionally, members and directors of a nonprofit corporation can petition

a court to order a meeting or a vote to be held when it is impractical or impossible to conduct

meetings or to obtain the consent of its members or directors.5
(1976 Code, as amended).

S.C. Code Ann. § 33-31-160

You may wish to contact a private attorney to determine if any of

these options would be beneficial.
4-If not the current firefighting volunteers, who can act on behalf of this organization?

We believe our responses to the previous questions have provided you with some possible
options. You may wish to contact a private attorney to determine if any of these options are
viable.
CONCLUSION
5 Section 33-3 1-160 provides that the Attorney General can petition a court to order a meeting or a vote to be held.
The Attorney General is empowered to commence a proceeding to protect the public interest when it may be
adversely affected. See Official Comment, S.C. Code Ann. § 33-31-170.

The Honorable Richard L. Yow
Page 5
June 19, 2023

This Office cannot make factual findings and the questions you present arc fact-specific.

See

Op. S.C. Atty. Gen., 1989 WL 406130 (April 3, 1989) (“[b]ecause this Office docs 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.”).

Therefore, we can only discuss the law regarding nonprofit

corporations in the abstract.
Within this opinion, we have described various ways a nonprofit corporation can transact

business.

Corporate bylaws can be adopted or amended by either the board of directors or the

members, depending on whether the nonprofit corporation has members and the subject matter of
the bylaw.

Determining whether filling a vacancy on the board of directors, holding a special

meeting, or commencing a lawsuit to compel a meeting is an appropriate remedy for Teal’s Mill

Rural Volunteer Fire Department, Inc. is beyond the scope of an opinion of this Office.
may wish to contact a private attorney to determine if any of these options arc viable.
A

Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

^ofcrt D.^Cook
Solicitor General

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