Davis, 021116 SCAGO, AGO 2084

• Case Date: February 11, 2016
• Court: South Carolina

Mr. Drew H. Davis, Esquire AGO 2084 No. 2084 South Carolina Attorney General Opinions State of South Carolina Office of the Attorney General February 11, 2016          Mr. Drew H. Davis, Esquire          General Counsel          Beaufort County Board of Education          Post Office Drawer 309          Beaufort, South Carolina 29901-0309          Alan Wilson Attorney General          Dear Mr. Davis:          You have requested the opinion of this Office as to whether the Beaufort County Board of Education ("the Board") has the authority to discipline one of its own members for policy or conduct violations in executive session pursuant to Section 30-4-70(a)(l) (2007 & Supp. 2015) of the South Carolina Freedom of Information Act. Specifically, you provide as follows:

[t]he Board currently has a policy. BCR 12: Process for Addressing Violations of Policy, which contains a progressive four (4) step process by which the Board disciplines its members for policy or conduct violations. One of the .steps provides the Board will discuss, in executive session, the alleged policy or conduct violations) with the charged Board member. It is this provision which has raised some issue and concern.^[1]

         In answering your concerns, we believe it is first necessary to address the authority a county board of education has to discipline its own members. Thus, our opinion of whether the Board can (1) discipline its members and (2) if so, whether it can do so in executive session pursuant to Section 30-40-70(a)(1) of the Freedom of Information Act follows.          Law/Analysis          Disciplinary Measures          Beginning with the first step our analysis - the authority of a county board of education to discipline its own members - it has been the consistent opinion of this Office that entities created by statute, like a county board of education, can only exercise those powers expressly granted to it by statute and those powers conferred by necessary implication. See, e.g.. Op. S.C. Att'y Gen., 2015 WL 1636661 (March 26, 2015); Op. S.C. Att'y Gen., 1974 WL 27574 (Jan. 4, 1974); Op. S.C. Att'y Gen., 1969 WL 15607 (June 24, 1969). In a recent opinion of this Office, we summarized South Carolina Supreme Court precedent discussing this rule of law as follows:

the authority of a state agency or governmental entity created by statute "is limited to that granted by the legislature." Nucor Steel v. South Carolina Public Serv. Comm'n. 310 S.C. 539, 426 S.E.2d 319 (1992). "As creatures of statute, regulatory bodies... possess only those powers which are specifically delineated. By necessity however, a regulatory body possesses not only the powers expressly conferred on it but also those which must be inferred or implied to effectively carry out the duties for which it is charged." City of Rock Hill v. South Carolina Dep't of Health and Envtl. Control, 302 S.C. 161, 165, 394 S.E.2d 327, 300 (1990) (internal citations omitted). As such, this Office has recognized on numerous occasions that governmental agencies "can exercise only those powers conferred upon them by their enabling legislation or constitutional provisions, expressly inherently, or impliedly." Op. S.C. Att'y Gen., 1988 WL 485289 (Sept. 22,1988).

Op. S.C. Att'y Gen., 2015 WL 1636661 (March 26, 2015).          Also, in a 1974 opinion, we discussed the authority and powers of a State Board of Education. Like the opinion referenced above, our 1974 opinion recognized that

[g]enerally speaking, state officers, boards, commissions, and departments have such powers as may have been delegated to them by express constitutional and statutory provisions, or as may properly be implied from the nature of the particular duties imposed on them. This power cannot be varied or enlarged by usage or by administrative construction. Executive and administrative officers, boards, departments, and commissions have no powers beyond those granted by express prevision or necessary implication.

Op. S.C. Att'y Gen., 1974 WL 27574 (Jan. 4, 1974) (quoting 81 C.J.S. States § 58 at 977-78) (internal quotations omitted). Our 1974 opinion went on to provide that "[a]ny reasonable doubt of the existence in the Commission of any particular power should ordinarily be resolved against its exercise of the power." Id. (quoting Piedmont and N. Ry. Co. v. Scott. 202 S.C. 207, 24 S.E.2d 353; 73 C.J.S. Public Administrative Bodies and Procedures § 50). We have also recognized that these same principles should be applied to county boards of education. See Op. S.C. Att'y Gen., 1969 WL 15607 (June 24, 1969) ("Inasmuch as the Greenville County Board of Education is a creature of statute, it may only exercise those powers which have been expressly conferred upon it and those which are necessarily incidental to its express powers") (citing 78 C.J.S. Schools and School Districts § 99 at 846).          Chapter 15 of Title 59 addresses county boards of education, with S.C. Code Ann. § 59-15-20 (2004) providing that "[t]he county board of education shall constitute an advisory body with whom the county superintendent of education shall have the right to consult when he is in doubt as to his official duty." In addition to serving in this advisory capacity to the county superintendent, county boards of education have the additional authority to

prescribe such rules and regulations not inconsistent with the statute of law of this State as they may deem necessary or advisable to the proper disposition of matters brought before them. This rule-making power shall specifically include the right, at the discretion of the board, to designate one or more of its members to conduct any hearing in connection with any responsibility of the board and make a report on this hearing to the board for its determination.

S.C. Code Ann. § 59-15-40 (2004). As part of the tiered management system of the public school system of our State, both the State Board of Education and local boards of education have been given similar rule making and authority by our legislature to hold a hearing for matters in connection with their responsibilities. See S.C. Code Ann. § 59-5-70(A) (2004) ("The [State Board of Education] may, in its discretion, designate one or more of its members to conduct any hearing in connection with any responsibility of the board and make a report on any such hearing to the board for its determination"); S.C. Code Ann. § 59-19-110 (2004) ("The boards of trustees of the several school districts may prescribe such rules and regulations not inconsistent with the statute of law of this State as they may deem necessary or advisable to the proper disposition of matters brought before them. This rule-making power shall specifically include the right, at the discretion of the board, to designate one or more of its members to conduct any hearing in connection with any responsibility of the board and to make a report on this hearing to the board for its determination").          In addition to the powers specifically granted to the county boards of education, certain county boards also have the powers vested to school district boards of trustees. See S.C. Code Ann. § 59-19-100 (2004) ("Where the county educational system operates as a unit, the county board of education or the educational governing body of the county shall have all the powers and duties of school trustees"). Pursuant to Act 977 of 1970, this appears to apply to the Beaufort County Board of Education as it operates as the governing body of the School District of Beaufort County without the existence of school district boards of trustees. See Act No. 977, 1970 S.C. Acts 2077 § 3 ("The Board of Education in Beaufort County shall ex-officio be and constitute the Board of School Trustees of the School District and is confirmed as the governing body of the School District of Beaufort County with all the powers vested by law in school district boards of trustees"). S.C. Code Ann. § 59-19-90 (2004 & Supp. 2015) enumerates the powers of school district trustees that would, in Beaufort County's instance, be devolved upon the Beaufort County Board of Education.          We do not interpret any of the powers granted to...