STATE OF SOUTH CAROLINA DEPARTMENT OF EDUCATION

Mick Zais Superintendent 1429 Senate Street Columbia, South Carolina 29201

MEMORANDUM TO: FROM: DATE: SUBJECT: Members of the State Board of Education Shelly Bezanson Kelly, General Counsel August 18, 2011 State Board Authority

Some individual members of the State Board of Education (State Board) have asked for clarification regarding the authority of the State Board as it relates to the State Superintendent of Education (Superintendent). The State Board and Superintendent are both established by the South Carolina Constitution. The Constitution clearly establishes the Superintendent as the chief administrative officer of the public education system and provides that the Board shall have such powers and duties as the General Assembly shall specific by law. Art. XI, Section 1 and 2 of the S.C. Constitution provide: SECTION 1. State Board of Education. There shall be a State Board of Education composed of one member from each of the judicial circuits of the State. The members shall be elected by the legislative delegations of the several counties within each circuit for terms and with such powers and duties as may be provided by law and shall be rotated among the several counties. One additional member shall be appointed by the Governor. The members of the Board shall serve such terms and the Board shall have such powers and duties as the General Assembly shall specify by law. (1972 (57) 3193; 1973 (58) 44.) SECTION 2. State Superintendent of Education. There shall be a State Superintendent of Education who shall be the chief administrative officer of the public education system of the State and shall have such qualifications as may be prescribed by law. The State Board is primarily a policy making body, with its authority conferred by the legislature. S.C. Code Ann. Section 59-5-60 sets forth the general powers of Board as:

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The State Board of Education shall have the power to: (1) Adopt policies, rules and regulations not inconsistent with the laws of the State for its own government and for the government of the free public schools. (2) Annually approve budget requests for the institutions, agencies, and service under the control of the Board as prepared by the State Superintendent of Education prior to being submitted to the Budget and Control Board and to the General Assembly. (3) Adopt minimum standards for any phase of education as are considered necessary to aid in providing adequate educational opportunities and facilities. (4) Prescribe and enforce rules for the examination and certification of teachers. (5) Grant State teachers' certificates and revoke them for immoral or unprofessional conduct, or evident unfitness for teaching. (6) Prescribe and enforce courses of study for the free public schools. (7) Prescribe and enforce the use of textbooks and other instructional materials for the various subjects taught or used in conjunction within the free public schools of the State, both high schools and elementary schools in accordance with the courses of study as prepared and promulgated by the Board. (8) Appoint such committees and such members of committees as may be required or as may be desirable to carry out the orderly function of the Board. (9) Cooperate fully with the State Superintendent at all times to the end that the State system of public education may constantly be improved. (10) Assume such other responsibilities and exercise such other powers and perform such other duties as may be assigned to it by law or as it may find necessary to aid in carrying out the purpose and objectives of the Constitution of the State. In addition to the powers articulated above, the General Assembly has conferred specific powers onto the State Board throughout the code. State Board Rule ABB, Rules of Governance, sets forth specific references to the State Boards statutory authority. The question is what authority does the State Board have to direct the activities of the State Superintendent or the State Department of Education? The State Superintendents general authority is set forth in S.C. Code Ann. Section 59-3-30. The State Superintendent of Education shall: (1) Serve as secretary and administrative officer to the State Board of Education. (2) Have general supervision over and management of all public school funds provided by the State and Federal Governments. 2

(3) Organize, staff and administer a State Department of Education which shall include such division and departments as are necessary to render the maximum service to public education in the State. (4) Keep the public informed as to the problems and needs of the public schools by constant contact with all school administrators and teachers, by his personal appearances at public gatherings and by information furnished to the various news media of the State. (5) Have printed and distributed such bulletins, manuals, and circulars as he may deem necessary for the professional improvement of teachers and for the cultivation of public sentiment for public education, and have printed all forms necessary and proper for the administration of the State Department of Education. (6) Administer, through the State Department of Education, all policies and procedures adopted by the State Board of Education. (7) Assume such other responsibilities and perform such other duties as may be prescribed by law or as may be assigned by the State Board of Education. Subsections (6) and (7) directly relate to the State Board and require the Superintendent to administer the policies and procedures adopted by the State Board and assume responsibilities as may be assigned by the State Board of Education. The State Board promulgates policy primarily through the regulatory process. It is through the regulatory process, that the State Board can direct the Superintendent to implement its policies. The South Carolina Administrative Procedures Act (APA) governs the regulatory process. The APA provides: "Regulation" means each agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency. Policy or guidance issued by an agency other than in a regulation does not have the force or effect of law. S.C. Code Ann. Section 1-23-10(4) (Emphasis Added). Thus, pursuant to the APA, only policies that are issued by the State Board through regulations have the force and effect of law, which would require the administration by the State Superintendent. Accordingly, the State Board does not have authority to direct the Superintendent to take action simply through the passage of a motion or resolution. Nowhere in the State Board authority does it include managing the State Department or directing the operations of the Superintendent. In fact, the State Board is required to [c]ooperate fully with the State Superintendent at all times to the end that the State system of public education may constantly be improved. S.C. Code Ann. Section 59-5-60(9). As a policy making body, and not an executive body, the State Board cannot direct the specific acts of the State Department or Superintendent. It falls upon the executive branch to carry out that function. Once the State Board exercises its authority through the promulgation of regulations or formal policy adoption, the State Superintendent then has the duty to carry out those regulations. With regard to funding requests and budgets, an issue has been raised in the past as to whether the State Board has the responsibility or authority to approve the annual SCDE budget request pursuant to the following statutory provision: The State Board of Education shall have the power to: (2) Annually approve the budget requests for the institutions, agencies, and service under the control of the Board as prepared by the State Superintendent of 3

Education prior to being submitted to the Budget and Control Board and to the General Assembly. S.C. Code Ann. Section 59-5-60(2) (2004) The Board does not have the responsibility to approve the Departments budget request. The Department is not nor ever was an agency under the control of the Board. In 1963, the General Assembly enacted a statute that created a fifteen member Board. The above statutory provision relating to budgets was a part of that statute. In addition to the statute that created the fifteen member Board, the following statute was also enacted by the South Carolina General Assembly in 1963: State Board of Education to supervise certain agencies.Contingent upon enactment into law of the Bill creating a fifteen member Board of Education, there shall be placed under the advisory supervision of said Board, effective July 1, 1965, the following State Agencies, Departments and Boards: (1) The State Education Finance Commission (2) The State School Book Commission (3) The State Educational Television Commission (4) The State Advisory Committee for Technical Training (5) The South Carolina Opportunity School Said Board of Education shall immediately study the coordination of all such agencies including the feasibility of consolidating all such agencies, departments and Boards to the end that the most efficient and effective state level administration of public school matters shall be obtained. S.C. Code Ann. 59-5-80 (1976) For a period of time, the fifteen member State Board did have the authority to approve the budget requests for the agencies, departments and boards listed in the above former S.C. Code Ann. Section 59-5-80. During the 1985 legislative session the General Assembly repealed Section 59-5-80. Since 1985, the Board has not had the responsibility to approve the budget of any state agency, department, institution or board. In conclusion, the State Board has the authority to develop policy through the proper process but it does not have the authority to direct the actions of the State Superintendent or State Department of Education staff, independent of this process.