Knight, 060419 SCAGO, AGO 3148

Docket Nº:AGO 3148
Case Date:June 04, 2019
Court:South Carolina
Mrs. Bonnie Knight
AGO 3148
No. 3148
South Carolina Attorney General Opinions
State of South Carolina Office of the Attorney General
June 4, 2019
         Mrs. Bonnie Knight          Acting Board Chairperson          Anderson County School District No. Two          10990 Belton-Honea Path HWY          Honea Path, South Carolina 29654          Alan Wilson Attorney General          Dear Mrs. Knight:          Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter asks the following:          The administrator of the Anderson County Board of Education received a letter [from an attorney], concluding that there was a vacancy on our Board.          I believe [this] conclusion is incorrect under South Carolina law, and I am writing to you to request your opinion on this matter.          The factual background is as follows: William "Stu" Shirley was elected in November 2018, to a four-year term on our Board. After a contentious Board meeting on May 13, 2019, Mr. Shirley, on May 14, submitted an email resignation to our Board Chair .... On May 17, 2019, Mr. Shirley apparently had second thoughts about his tendered resignation and submitted to our Chairperson another letter rescinding his May 14 resignation. Both letters were sent to all members of our Board, and to the administrator, Mr. Nimmer of the Anderson County Board. On Wednesday, May 22, 2019, Mr. Nimmer received the attached letter ... stating under South Carolina law, the rescission of a resignation was not permitted and accordingly Mr. Shirley's seat was vacant.          [This] letter was provided to our Board at a special meeting on May 22, but our Board took no action on either of Mr. Shirley's letters.          It seems clear to me that [the letter's] conclusion is wrong. First, our Board has a policy BBBC ... providing that Board members may resign on thirty days' notice. Secondly, our Board never acted on Mr. Shirley's resignation or his letter of rescission. Thirdly, his rescission took place on May 17, only three days after the resignation letter.          My questions simply stated under these facts are: (1) does a vacancy exist on our Anderson Two Board? and (2) was Mr. Shirley's rescission effective and does he remain a member of the Board?          Law/Analysis          It is this Office's opinion that a court likely would hold a member of a school district board of trustees may revoke a tendered resignation before it is accepted. Answering whether a particular board member has vacated his office would require this Office to make factual determinations which are beyond the scope of this Office's opinions. See Op. S.C. Att'y Gen., 2012 WL 1371025, at *2 (April 11, 2012). Instead, this opinion will generally assume facts as provided in the request letter for purposes of providing legal analysis.          The following additional facts recounted in the request letter and attached materials are pertinent to this opinion. Board member Stu Shirley submitted a resignation letter on May 14, 2019 which explicitly stated it was "effective immediately." This letter was sent via email to recipients which appear to board members of Anderson County School District No. Two. On May 17, 2019, Stu Shirley sent a rescission letter sent to Brenda Cooley, chairperson for the board, withdrawing his resignation and asked, "Will you please relay this decision to the Anderson County Board and advise their position?" Mrs. Brenda Cooley replied May 17, 2019 acknowledging receipt of the rescission letter and stating she would notify the members of Anderson County School District Two board of trustees and the Anderson County Board of Education. There is no indication that either the Anderson County School District Two board of trustees or the Anderson County Board of Education accepted Stu Shirley's resignation before receiving notification of its withdrawal. On May 22, 2019, Joey Nimmer, Administrator of the Anderson County Board of Education, received an email from an attorney that analyzed whether a vacancy exists on the Anderson County School District Two board of trustees as a result of the resignation and rescission letters. Ultimately, the email concluded:          Relying on SC Code 8-1-145 and the plain language of the board member's May 14th resignation notice, it is fair to conclude that the resignation was effective as of May 14, 2019, and was irrevocable.* It then follows that there is a vacancy on Anderson School District Two's Board of Trustees, which must be filled by the Anderson County Board of Education.          It appears that the resolution to the questions presented in the request letter depends on whether S.C. Code Ann. § 8-1-145 does, in fact, mandate that the resignation letter is irrevocable such that Mr. Shirley could not withdraw it even before it was accepted. This Office has not identified any decisions of our state courts or prior opinions of this Office which have interpreted Section 8-1-145...

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