CHESTERFIELD COUNTY, S.C. (QUEEN CITY NEWS) — When we found S.C. Sen. Penry Gustafson in a State House committee meeting room in February, she knew instantly why we were there.
“Are you here to talk to me about Chesterfield and the appointment,” Gustafson asked Queen City News Chief Investigative Reporter Jody Barr.
“Kim Burch, yes ma’am,” Barr responded.
The senator and four other members of the Chesterfield County Legislative Delegation ignored multiple messages from QCN requesting an interview about the lawmakers’ plan to figure out whether Kimberly Burch, an elected school board member, was violating the state’s ban on dual office holding.
Gustafson (Kershaw County), Rep. Richie Yow (Chesterfield County), Rep. Cody Mitchell (Darlington County), Rep. Pat Henegan (Marlboro County), and Sen. Gerald Malloy (Darlington) make up the delegation.
Burch was elected to the Chesterfield County school board in 2006, but a decade before she was appointed to the Northeastern Technical College’s Area Commission in 1997.
Multiple South Carolina Attorney General’s Office legal opinions show elected school board members holding a seat on an S.C. technical college board would be a violation of the state’s ban on one person holding an “office of honor or profit” at the same time.
We found AG opinions published in 1985 and 2002 answering questions about whether a member of the NETC board is an office holder for the purposes of dual office holding. In both opinions, the AG’s office determined a member of a technical college board who holds another office that exercise “sovereign powers” of the state would be a violation of the state’s dual office ban.
School board members would be included as an “office of honor or profit,” according to multiple attorney general’s opinions published over the past decade.
When we found Sen. Gustafson outside that committee meeting on Feb. 7, she assured the public she would act to get answers regarding Burch’s situation.
“So, if I didn’t fully respond, I’m sorry about that,” Gustafson said. “But it is definitely something of an importance; too many laws and things in South Carolina are easy to brush over. The people aren’t called on it, right? So, I actually appreciate the fact that you brought that to my attention, and we’ll be taking care of that as soon as we can. And I promise you, we will.”
Gustafson said she’d call Burch to gather information, as well.
Part of “taking care” of the questions we raised, the senator said she’d request an attorney general legal opinion specific to Burch asked us to “check back” with her in 30 days.
On March 20, we asked the AG’s office whether Gustafson or any other member of the Chesterfield County Legislative Delegation requested a formal opinion on the Burch dual office holding situation.
“According to the head of our Opinions Division, we have not received a formal request for an opinion on that,” the AG’s spokesman Robert Kittle told QCN.
On March 21 we went to the State House to find Gustafson to find out why what she told us she’d do, never happened.
‘I DON’T REMEMBER EXACTLY’
It didn’t take us long to track down Sen. Penry Gustafson when we stepped off the elevator onto the sixth floor of the Gressette Building on March 21. We found her in her Senate office.
After a brief introduction, we asked the senator about whether she’d spoken with Kimberly Burch and the AG’s office.
BARR: “When we talked you said you would ask the AG for an opinion.”
GUSTAFSON: “Right.”
BARR: “And it would be roughly 30 days.”
GUSTAFSON: “I don’t think I’ve gotten that yet. I don’t think I’ve got it. I might have.”
BARR: “Did you ask – what did you ask the AG?”
GUSTAFSON: “He was asked to provide an opinion. He might have referred to the last opinion he wrote, I can’t remember – I don’t remember exactly.”
Gustafson later acknowledged she never asked the AG for a formal opinion.
The senator explained that in the days following our “Positions of Power” investigation, several emails were exchanged between Yow and governor’s office over a letter the governor sent the delegation on Feb. 10 after QCN asked the governor’s office about what we found.
Members of the NETC board are appointed by the governor. Burch was appointed to her NETC seat in 1997 by then-Governor David Beasley.
“The Office has recently received inquiries pertaining to the Commission, including allegations of potential dual-office holding by one of its members,” Gov. Henry McMaster’s Chief Legal Counsel Thomas Limehouse Jr. wrote to the delegation. “Absent additional information or clarification, concurrent service by Ms. Burch on both the Commission and the School Board would seemingly violate the constitutional prohibition on dual-office holding.”
“However, because the Delegation has not recommended a successor, the Governor cannot make a new appointment. Consequently, the Office respectfully requests that the Delegation provide an update regarding the status of this seat (and the other Chesterfield County seat with an expired term) on the Commission,” Limehouse wrote.
The letter spurred a series of emails from Rep. Yow, highlighting mistakes he believed the governor’s office made when it pointed out one other Chesterfield delegation NETC appointee’s term had expired. The governor’s office later acknowledged the mistake regarding the other board member, but reiterated the office was not mistaken regarding Burch’s appointment and the office’s belief her service violated the dual office holding ban.
Gustafson said she thought Yow was handling the AG end since he was in a back-and-forth with the governor’s office over this. Yow told QCN he never sought an AG opinion and never told anyone he would because he relied on the conclusions contained in the existing AG legal opinions.
“In all of this, I think the one person who deserves resolution is Kimberly Burch,” Barr told the senator, “And that’s why we want to help bring that.”
“And I’m going to try to get in touch with her (Burch) this afternoon, as she is on my list of for people to follow up with on this,” Gustafson explained, “I had no problem with this at all. And I’m sorry if that if, you know, if I said something on February 7 that wasn’t accurate at the time, it was certainly my intention.”
JUMPING INTO ACTION
“Well, you can sit right here, I’m going to call Alan Wilson myself. Right here,” Sen. Penry Gustafson told Barr as the pair sat in her State House office on March 21. The senator grabbed her cell phone, opened her contacts, and dialed the Attorney General’s cell number.
Wilson didn’t answer Gustafson’s first call.
“First of all, I don’t need bad press. I do care, I don’t want it to look like I don’t give a rip. I do,” Gustafson told Barr. “And that’s why when I got the word back from the AG yesterday, I said, ‘Well, you told me that you asked for the request or the opinion and then the AG said it never happened,” Barr replied.
“Well, I thought that Yow had asked for it. And when I say we, I’m thinking about; like delegation,” Gustafson said. “No, did not. He asked his own counsel, whoever that is, for his opinion. Yow told me that that was never requested by him in our discussion with him,” Barr told the senator.
Gustafson then asked if we had Burch’s phone number. “Well, that would have been a problem with calling her anyway because I have no idea what her phone number is,” Gustafson said.
A little more than five minutes later, Gustafson’s cell phone rang. It was South Carolina Attorney General Alan Wilson.
“I’m sitting here with you on speakerphone with a reporter Jody Barr. And it seems that we do need to work out some things in Chesterfield County with a possible dual appointment. And I need to request an opinion. And I’ve never directly done that before…how do I do that, exactly,” Gustafson asked Wilson.
Wilson told the senator to gather as many facts as she could then send his office a letter asking for a legal opinion. Gustafson sent the AG an email that evening asking for a legal opinion on the Burch issue.
The Attorney General’s Opinions Section had Gustafson an answer in writing in no time.
That evening, Gustafson sent Barr a text, detailing the steps she took that afternoon to get to the bottom of this. The senator called Burch’s home number and left a message, called the Chesterfield County School District office to contact Burch, emailed the AG’s office Solicitor General Bob Cook asking for a formal opinion, contacted the Chesterfield County Delegation Office asking for Burch’s appointment records.”
“Please allow us to work through this. I am on this,” Gustafson closed in her text message. Gustafson followed up with a phone call later that evening explaining she’s working on resolving everything.
‘IT WOULD VIOLATE THE DUAL OFFICE PROVISION’
The Attorney General’s Office opened at 8:30 a.m. on March 22. Exactly two hours later, the state’s law firm delivered Senator Penry Gustafson its legal opinion.
Solicitor General Cook asked me to respond to your email. You are inquiring as to whether service on the Chesterfield County School District Board of Trustees and the Northeastern Technical College Area Commission constitutes dual office holding,” Assistant Attorney General Ellie Lister wrote in a March 22 email, timestamped at 10:30 a.m.
Lister cited multiple prior legal opinions related to elected school board officials and technical college board members in scenarios similar to Burch’s situation.
“Therefore, it would violate the dual office provision of the South Carolina Constitution for an individual to serve in both positions,” Lister wrote. “I have discussed this issue with Solicitor General Cook and he agrees with my analysis.”
Gustafson didn’t contact QCN again with an update.
On April 3, Barr texted Gustafson asking for an update on whether she was able to schedule a delegation meeting. Gustafson returned the text with a phone call saying she was out of the country on vacation during a senate recess and to contact her when she returns.
On April 20, Barr again texted Gustafson, “Hey, Senator. Were you able to talk with Mrs. Burch? Also, have you been able to get the delegation to set a meeting?” Gustafson did not respond to the text.
Barr sent a follow up text the following week asking Gustafson for a response. “Sir, we are in session. Spoke with Kim Burch about 2 weeks ago. Based on personal conversations, AG opinions, exchanges with AG staff, and other factors, I am satisfied with the situation at the moment. Ms. [sic] Burch has been an unpaid community servant for NETC for many years. Hopefully, the Chesterfield County Delegation will come together to discuss this and more. No delegation meeting has been called yet, but my intention is to do so soon,” Gustafson replied.
“You may quote me,” the senator wrote in closing. “I will. Thank you,” Barr replied.
Burch isn’t the only unpaid member of the NETC board. The college told QCN no board member is compensated for service on the board.
We asked Kimberly Burch for an interview on April 4, seeking her response to the AG’s March 22 opinion. Burch did not respond to our request for an interview. We also attended both the March and April NETC board meetings, but Burch did not show up for the meetings.
The college told QCN Burch’s absences were excused.
On Feb. 11, Kimberly Burch provided a written statement ahead of our first “Positions of Power” report. Here’s that statement in its entirety:
“I am surprised that serving on an unpaid board that does not require an oath of office could possibly constitute dual office holding. The NETC board is a hybrid type of board that the local Legislative delegation appoints.
I have conferred with an attorney who has expertise in governmental affairs and they took issue with the Attorney General’s opinion regarding the issues at hand. They quickly pointed out that an Attorney General’s opinion is only an opinion. There is no civil law precedent which addresses the questions you have raised. They also opined that the Attorney General’s opinion grossly and inappropriately exaggerates the term “ for profit”. If the court were to adopt the view of those Attorney General’s opinions there would be chaos, especially in our small municipalities, in attempting to fill mandated board and commission positions. My attorney also opines that because of reasons stated above that the Courts would most likely rule that dual office only applies in cases where oaths of offices are required. Laying all of this aside, the best solution would be for Legislation clarifying the issue that has been raised.
One aspect of the law that is crystal clear is that I will continue to serve on the NETC board until a successor is appointed by the Delegation.
I am confident that our new Legislative Delegation will keep in mind the best interests of the College and our students, just as I have, in reaching a solution to any problems that we have. I will certainly cooperate and support whatever decision the Delegation makes.”
Kimberly Burch, Feb. 11, 2023 email to Queen City News
As of this report, the Chesterfield County Legislative Delegation has not set a meeting to address the Burch issue or agreed upon a new appointee to replace Burch on the NETC board. It takes a majority of the five legislators to agree on a replacement to recommend appointment by the governor.
BURCH IS NOT ALONE
Within days of our ‘Positions of Power’ report, we received an anonymous letter detailing allegations that another elected official and another person in Chesterfield County were also violating the state’s dual office holding ban.
We could not find any evidence the second person named in the letter held any office. The SC Secretary of State’s Office also did not have any documentation that person ever held any office.
The tipster claimed Chesterfield County Councilwoman Mary Anderson was holding two offices at once: the Board of Architectural Review in Cheraw and a Chesterfield County Council seat. We confirmed Anderson’s appointment to the town board and her election to the council council.
Anderson was appointed to the town board in 2014, the won her council seat in November 2014. She held both positions simultaneously until Dec. 31, 2022 when Anderson left the town board after being term limited with eight years’ of service.
In April 2004, the SC Attorney General’s Office published a legal opinion when asked if a member of the Dillon Board of Architectural Review held an office for dual office holding purposes, a position similar to Anderson’s. The requestor asked for the opinion after his selection to also serve on the Marion/Dillon Board of Disabilities and Special Needs.
“This Office has advised on at lease one prior occasion that a member of a local architectural review board holds an office for dual office holding purposes,” Bob Cook wrote in the 2004 AG opinion,” The constitutional provisions prohibiting dual office holding would therefore be contravened if you were to simultaneously serve as a member of the Town of Dillon Board of Architectural Review and Marion/Dillon Board of Disabilities and Special Needs.”
We asked Anderson whether she knew she was likely violating the state’s ban on dual office holding. Anderson said she had no idea.
“As we talked about Tuesday, during my appointed terms on the Board of Architectural Review, there was never an occasion where a conflict arose with my service as a County Council member. The simultaneous service never occurred to me to be a conflict,” Anderson wrote in an email to QCN asking her to confirm facts we planned to report regarding her appointment and election.
“However, I now understand the issue with dual office holding and, had I been aware of that previously, I would have resigned my position on the Board,” Anderson wrote.
The AG’s office opinions contain explanations as to what happens when someone holds two offices at the same time. Upon taking the second office, the office holder vacates the first office.
“When a dual office holding situation occurs, the law operates automatically to “cure” the problem,” Cook wrote in a 2004 opinion. “If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section 1A of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office held. Thus, the law automatically creates a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite).”
Anderson continues to serve on the Chesterfield County Council and does not hold a position on any other board or commission in Chesterfield County, according to the SC Secretary of State’s Office.
