Can a South Carolina county legislative delegation investigate or take testimony about a local school district?

Official title

Opinion on whether the Charleston County House delegation has authority to respond to or receive testimony on actions taken by the school district.

Requester

Requested by Alice F. Paylor, Esquire, Attorney for the Charleston County School District.

Plain-English summary

The attorney for the Charleston County School District asked whether the Charleston County House delegation, the House members who represent the county in the General Assembly, had the authority to respond to or receive testimony about actions the school district had taken.

The Attorney General's office said yes. Its reasoning starts from a basic principle: the power to legislate includes the power to investigate and gather information. The South Carolina Constitution puts the entire legislative power in the General Assembly (Art. I, § 3), and the Constitution makes public schools uniquely the province of the General Assembly (Art. XI, § 3). The state Supreme Court has repeatedly held that the legislature may pass laws aimed at a single school district without running afoul of the bans on "special legislation" (Art. III, § 34) or Home Rule (Art. VIII, § 7), because public education is a state duty, not a local-government one.

Because local legislation about a particular district almost always moves through that county's legislative delegation, the office concluded the Charleston County House membership plays a pivotal role and is well within its authority to look into the district's performance. The opinion adds that even individual legislators may ask questions and seek information connected to potential legislation, and that information-gathering of this kind falls within a legislator's protected legislative functions.

What this means for you

Charleston County House delegation members: The opinion concludes the delegation may look into the school district's performance and receive testimony about it, treating that inquiry as an exercise of the legislative power to investigate.

School district officials and boards: The opinion describes school districts as legislative creations with "no permanent existence," subject to the General Assembly's plenary power to restructure them and to end or extend board members' terms (Miller v. Farr). It frames legislative-delegation inquiry into district performance as within the delegation's authority.

County residents and citizens: Under this opinion, the legislators who represent the county can gather information about how the local school district operates, including from individual members acting in their legislative capacity.

Common questions

Can a legislative delegation investigate a local school district in South Carolina?
According to this opinion, yes. The office concluded the power to legislate includes the power to investigate, and that the Charleston County House delegation was well within its authority to examine the district's performance.

Why does the General Assembly have special say over individual school districts?
The opinion points to Art. XI, § 3 of the state Constitution, which charges the General Assembly with maintaining the public school system. The Supreme Court has held (in cases like Moye v. Caughman and Bradley v. Cherokee School Dist.) that legislation about a single district does not violate the bans on special legislation or Home Rule, because public education is a state responsibility.

Can a single legislator ask the district for information, or only the full delegation?
The opinion says even individual legislators representing the county may ask questions and seek information regarding potential legislation, and that such information-gathering is a protected legislative function.

Does the delegation's authority mean it can pass a law about the district by itself?
No. The opinion notes the entire General Assembly must enact even local laws, but that the longstanding practice is to defer to the local delegation, with the House membership playing a pivotal role in any statute about an individual district.

Background and statutory framework

The opinion rests on the constitutional structure of legislative power and public education in South Carolina. Art. I, § 3 vests the legislative power in the General Assembly, and Ex Parte Parker, 74 S.C. 466, 55 S.E. 122 (1906), recognized that the legislative power to gather information on subjects it may legislate on has "always been exercised without question." Art. XI, § 3 charges the General Assembly with maintaining the public school system.

A line of Supreme Court cases reconciles that authority with the constitutional limits on special legislation (Art. III, § 34) and Home Rule (Art. VIII, § 7). In Moye v. Caughman, 265 S.C. 140, 217 S.E.2d 36 (1975), the Court upheld a statute changing how a county's school trustees were elected, holding Art. XI prevailed on school matters. Bradley v. Cherokee School Dist. No. One of Cherokee County, 322 S.C. 181, 470 S.E.2d 570 (1996), reaffirmed that reasoning and distinguished Horry County v. Horry County Higher Ed. Comm. The opinion also cites the General Assembly's plenary power over districts (Miller v. Farr, 243 S.C. 342, 133 S.E.2d 838 (1963)) and the recognition that South Carolina legislative delegations are elected bodies exercising governmental functions (Vander Linden v. Hodges, 193 F.3d 268 (4th Cir. 1999)). On the protected nature of a legislator's information-gathering, it relies on Richardson v. McGill, 273 S.C. 142, 255 S.E.2d 341 (1979), and federal Speech or Debate Clause authority. The opinion notes the full General Assembly still must enact local laws, citing Bd. of Trustees of the School Dist. of Fairfield Co. v. State, 395 S.C. 276, 718 S.E.2d 210 (2011).

Citations

Constitutional provisions: S.C. Const. Art. I, § 3; Art. XI, § 3; Art. III, § 34; Art. VIII, § 7.

Cases: Ex Parte Parker, 74 S.C. 466, 55 S.E. 122 (1906); Moye v. Caughman, 265 S.C. 140, 217 S.E.2d 36 (1975); Bradley v. Cherokee School Dist. No. One of Cherokee County, 322 S.C. 181, 470 S.E.2d 570 (1996); Horry County v. Horry County Higher Ed. Comm., 306 S.C. 416, 412 S.E.2d 421 (1991); Miller v. Farr, 243 S.C. 342, 133 S.E.2d 838 (1963); Vander Linden v. Hodges, 193 F.3d 268 (4th Cir. 1999); Richardson v. McGill, 273 S.C. 142, 255 S.E.2d 341 (1979); Bd. of Trustees of the School Dist. of Fairfield Co. v. State, 395 S.C. 276, 718 S.E.2d 210 (2011).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-whether-the-charleston-county-house-delegation-has-authority-to-respond-to-or-receive-testimony-on-actions-taken-by-the-school-district/
• Original PDF: https://www.scag.gov/media/3g3pmbx3/03411425.pdf

Original opinion text

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Alan Wilson
Attorney General

October 12, 2023

Alice F. Paylor, Esq.
Saxton & Stump

1 5 1 Meeting Street, Suite 400
Charleston, SC 29401

Dear Ms. Paylor:
As attorney for the Charleston County School District, you have asked our opinion
regarding whether the Charleston County House delegation has authority to respond to or receive
testimony on actions taken by the District. It is our opinion that the House Delegation possesses
such authority.

Art. I, § 3 of the South Carolina Constitution confers the entire legislative power upon the

General Assembly. Moreover, in this regard, it is well recognized that:
[t]he power of the General Assembly to obtain information on any subject upon
which it has the power to legislate, with a view to its enlightenment and guidance, is
so obviously essential to the performance of legislative functions that it has always
been exercised without question.

Ex Parte Parker, 74 S.C. 466, 55 S.E. 122, 124 (1906). In accordance with the Parker decision,
we have recognized that, while compulsory process would have to be specifically granted to the
Committee by the Senate, “the Senate Agriculture and Natural Resource Committee could
perform a “voluntary investigation of facts and evidence involved in any appropriate topic they
choose to examine.” Op. S.C. Att’y Gen., 1975 WL 22456 (Op. No. 4161) (October 22, 1975).

Art. XI, § 3 of the South Carolina Constitution makes public schools uniquely the
province of the General Assembly. Such provision of the Constitution states:
[t]he General Assembly shall provide for the maintenance and support of a system of
free public schools open to all children in the State and shall establish, organize and

support such other public institutions of learning, as may be desirable.

Based upon this Constitutional provision, our Supreme Court has consistently ruled that the

General Assembly may enact legislation concerning a particular school district without violating

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Alice F. Paylor, Esq.
Page 2
October 12, 2023

the “special legislation” provision of the Constitution (Art. Ill, § 34) or the requirements of
“Home Rule.” (Art. VIII, § 7).
In this regard, the Court has explained its reconciliation of Art. XI, § 3 with Art. Ill, § 34

and Home Rule (Art. VIII, § 7) so as to sustain as constitutional local legislation involving a
school district. In Move v. Caughman, 265 S.C. 140, 217 S.E.2d 36 (1975), the Court upheld a
statute which changed the method of elections of boards of trustees of school boards for
Lexington County against a challenge based upon Article VIII, § 7’s prohibition against laws for
a specific county.

The Moye Court concluded that Art. XI, § 3 prevailed as to public school

matters:

[t]he contrast between Article XI and Article VIII should be obvious. In Article XI
the General Assembly is charged with the duty to provide for a system of public
education, whereas, in Article VIII the General Assembly is required to confer

powers upon the counties so that they may carry out local functions. Moreover, a
reading of Article XI, which deals specifically with public education as a whole, . . .
in light of the historical background of public education in this State, and attempting

to harmonize the entire Article and extract the impact of each section, it is clear that
the provisions of Article VIII, which deal solely with local government, have no
application to the matter currently before us.

265 S.C. at 143-144, 217 S.E.2d at 38.

And in Bradley v. Cherokee School Dist. No. One of Cherokee County, 322 S.C. 181,
470 S.E.2d 570 (1996), the Supreme Court reaffirmed this reasoning in the context of a challenge
made pursuant Article III, § 34’s prohibition against the enactment of special legislation.

The

Bradley Court distinguished Horry County v. Horry County Higher Ed. Comm., 306 S.C. 416,
412 S.E.2d 421 (1991) as follows:
. . . Appellant contends Horry County v. Horry County Higher Ed. Comm. . . . has
implicitly overruled this court's holding that the legislature may pass separate
legislation regarding public education without violating constitutional limitations. . . .

We disagree. . . . Horry County did not overrule Moye and the line of cases
upholding legislation relating to school districts. In Horry County, the County was
authorized to levy a tax sufficient to pay the interest and principal on bonds issued to
finance the activities of the Horry County Higher Education Commission. The Horry
act was found to be special legislation because while the tax imposed on all taxable

property within Horry County, the funds were not used for the benefit of all persons
residing within the area. Additionally, the funds in Horry were used solely for the
benefit of one institution of higher learning. Although the court in Horry concluded
that legislation regarding education is not exempt from the requirements of Article

III, § 34 (IX), it also found that it does not prohibit all special legislation.
*3 A law that is special only in the sense that it imposes a lawful tax limited in
application or incidence to persons or property within a certain school district does

Alice F. Paylor, Esq.
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October 12, 2023

not contravene the provisions of Article Ill, § 34 (IX). Hay v. Leonard, 212 S.C. 81,
46 S.E.2d 653 (1948). Individual districts may impose a legal tax limited in
application and incidence to persons or property, within the prescribed area. Shillito
v. Spartanburg, 214 S.C. 11, 51 S.E.2d 95 (1948). Statutes upheld as constitutional

were not only applied uniformly to all persons and property within the area affected,
but the specific taxes were used for the benefit of all persons residing in the area. Id.
The funds in this case are not confined to the sole use and benefit of any particular

class but would benefit the entire county of Cherokee. . . .

Accordingly, the trial
court did not err in concluding that Act 588 imposes a lawful tax limited in
application and incidence to persons or property in Cherokee County and as such is

not a special law in violation of Article III, § 34 (IX). Hay v. Leonard, supra.

322 S.C. at 185-86, 470 S.E.d2d at 572-3. See also Wilson v. City of Cola., 434 S.C. 206, 218,
863 S.E.2d 456, 462 (2021) [referencing Move v. Caughman, and noting that in Moye, the
Supreme Court found “in the context of public education that Home Rule does not apply to local

governments “because public education is not the duty of [local governments], but of the General
Assembly. . . .”].

Thus, our Supreme Court has concluded that the General Assembly may

legislate with regard to an individual school district, such as the Charleston County School
District, without violating either the provision of the Constitution relating to “special legislation”
or that concerning “Home Rule.” We presume this was the purpose of the House members of the
Charleston County Delegation’s response here.

The issue here, of course, is not the full General Assembly, but the powers of the
legislative delegation - in this instance, the House portion of the Delegation. As the Fourth

Circuit has noted in Vander Linden v. Hodges, 193 F.3d 268 (4th Cir. 1999), legislative
delegations in South Carolina” are elected bodies that exercise governmental functions.”
Likewise, House members not only form a powerful voting bloc in the Legislative Delegation,
but also possess governmental functions and often act as a group. See e.g. Weeks v. Ruff, 164

S.C. 398, 162 S.E. 450, 451 (1932) [in order to address the county’s debt limit, “. . . the
Newberry House Delegation, at the 1930 session of the General Assembly, introduced in the

House a Joint Resolution” proposing a constitutional amendment]. As we understand it, the
House membership is acting in a bipartisan manner regarding the CCSD.
Inasmuch as the General Assembly plays a unique role with regard to oversight over the
State’s public schools, the local legislative delegation almost always serves as the focal point for
passage of local legislation regarding a particular school district. The House portion of the
Delegation certainly plays a pivotal role in that process. Thus, as the Supreme Court has
recognized - a recognition which remains applicable even after the adoption of Home Rule “[i]t is clear that under our Constitution school districts have no permanent existence in as much
as the General Assembly has plenary power to create new school districts or to consolidate
existing school districts with other school districts.” Miller v. Farr, 243 S.C. 342, 349, 133
S.E.2d 838, 842 (1963). See also Walpole v. Wall, 153 S.C. 106, 149 S.E.760, 764 (1929) [“The
objection that the old board of trustees, or some of them, have been legislated out of office by the
act in question is without force. School trustees are legislative, not constitutional, officers whose

Alice F. Paylor, Esq.
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October 12, 2023

terms may be ended or extended at the will of the Legislature.”]. Accordingly, the regulation of
school districts is uniquely the province of the General Assembly and in the regulation of an
individual school district, the members of local delegation play a fundamental role. .
As we emphasized in Op. S.C. Att’v Gen., 1986 WL 191969 (Op. No. 86-7) (January 14,
1986), “it is a general principle of law that ‘the power to investigate is an essential corollary to

the power to legislate.’” (quoting 81A C.J.S, States § 56).

As the Court stated in Dubois v.

Gibbons, 1 18 N.E.2d 295, 306 (Ill. 1954),
. . . [t]he power and authority of legislative bodies to conduct investigations through
committees has been recognized by the courts and is now well established (citations
omitted). The power of a legislative body to make proper investigations is founded
upon necessity. The very existence of a legislative body implies the power to
investigate via committees of its members into those affairs with respect to which it

may legislate or appropriate funds.

Moreover, in Op. S.C. Att’y Gen., 2013 QL 3362070 (June 19, 2013), we recognized that

individual legislators who sought information so that he or she could perform their legislative

duties were acting in their legislative capacity and thus protected by legislative immunity:
Courts have recognized that the scope of performance of a legislator's duties is not

limited to those acts in a legislative assembly meeting.

Indeed, our own Supreme

Court in Richardson v. McGill, 273 S.C. 142, 255 S.E.2d 341 (1979), has found that

statements made by a member of the General Assembly attending as part of the
county legislative delegation and a meeting with members of a county recreation
commission were absolutely privileged. There, the Supreme Court stated that "[i]t is
... clear that unqualified privilege [for legislative acts] does not depend on the rigid
requirement of a strictly legislative or judicial proceedings; its limits are fixed rather
by considerations of public policy." 273 S.C., id. at 146, 255 S.E.2d, id, at 343.
According to the Court, the absolute immunity of statements made by a legislator
depended instead upon whether he or she "was engaged in a legislative duty or
function at the time the defamatory statements were made." Id. Members of the
legislative delegation from Williamsburg County "had an official interest in the
proper operation of the county government and its agencies, including that of the
Williamsburg County Recreation Commission." Id. Thus, the legislator in attending
the meeting, was performing a legislative function, and such statements made by him
in the course of that meeting, were deemed to be absolutely privileged.
In addition, courts have concluded that other acts of a legislator, including informal
as well as formal information gathering, are part of his or her legislative duties.

In

Williams v. Johnson, 597 F.Supp.2d 107, 1 14 (D.D.C. 2009), the Court, per KollarKotelly, J. stated as follows:
... the Supreme Court has never addressed whether the [Speech or Debate]

Clause covers informal, as well as formal, information gathering by a
legislator, and lower courts are divided on the question. See Jewish War
Veterans [v. Gates], 506 F.Supp. 30, 54 (D.D.C. 2007). The Court, however,

Alice F. Paylor, Esq.
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October 12, 2023

agrees with the well-reasoned decision by Judge John D. Bates in Jewish
War Veterans

in

which

Judge

information gathering by a

Bates concluded

that

investigation

and

legislator - whether formally or informally

conducted - is protected by the Speech or Debate Clause "so long as the

information is acquired in connection with or in aid of an activity that
qualified as 'legislative' in nature." 506 F.Supp.2d at 57. That is, the Court is
persuaded that, regardless of whether conducted formally or informally, "the
acquiring of information [is] an activity that is a 'necessary concomitant of

legislative conduct and thus should be within the ambit of the privilege so
that [legislators] are able to discharge their duties properly.'" Dominion
Cogen [D.C. Inc, v. District of Columbia], 878 F.Supp. 258 (D.D.C. 1995) at
263; see also Alliance for Global Justice [v. District of Columbia], 437

F.Supp.2d 32 (D.D.C. 2006) at 36.

Conclusion
In our opinion, the House Legislative Delegation is well within its authority to look into
the performance of the Charleston County School District.

The power to legislate includes the

power to investigate or to gather information in order to determine what legislation may be
needed or warranted.

Even individual legislators representing Charleston County may ask

questions and seek information regarding potential legislation.

Moreover, legislation regarding

individual school districts, such as CCSD, is uniquely within the province of the Charleston
Legislative Delegation. Our Supreme Court has ruled that local legislation concerning individual

school districts does not contravene the constitutional prohibition of “special legislation” or
violate Home Rule.

While the entire General Assembly must enact even local laws, see Bd. of

Trustees of the School Dist. of Fairfield Co. v. State. 395 S.C. 276, 718 S.E.2d 210 (2011), the
longstanding legislative practice has been to defer to the local Legislative Delegation regarding

passage of these local laws.

Of course, the FIousc membership in that Delegation must play a

pivotal role in enactment of any statute relating to an individual school district.

In addition, our

Supreme Court has emphasized that the General Assembly has plenary power to restructure a
local school district and to end or extend terms of school board members as it sees fit.
Accordingly, wc believe the Charleston County House membership certainly possesses
the authority to examine the performance of the CCSD.

Si:

:rely,

Robert D. Cook
Solicitor General