Is South Carolina's Robert Smalls Monument Commission a state agency, and is the monument a public purpose?

Official title

Opinion addressing several questions regarding the Robert Smalls Monument Commission.

Requester

Requested by David K. Avant, General Counsel, South Carolina Department of Administration.

Plain-English summary

The General Counsel of the South Carolina Department of Administration asked the Attorney General to confirm two things about the Robert Smalls Monument Commission. The Commission was created by Act 183 of 2024, which added § 10-1-185 to the Code, and its job is to determine the design of a monument to Robert Smalls and where it should sit on the State House grounds. The two questions: is the Commission a governmental entity or agency of the State, and does its mission serve a public purpose?

The office answered yes to both. On the agency question, it relied on its own prior opinions treating similar bodies, the Hunley Commission and the Strom Thurmond Monument Commission, as state agencies, and on South Carolina Supreme Court decisions describing a "State agency" as one created for the convenient accomplishment of an important governmental function. The Court had treated the Tricentennial Commission, created to commemorate the state's 300th birthday, as exactly that kind of state agency. The Robert Smalls Commission, created by the Legislature with appointed legislative members and a defined statutory mission, fit the same mold.

On the public-purpose question, the office leaned on settled South Carolina law that spending public funds for historical and educational purposes is a recognized public purpose, and that the state Supreme Court has called the erection of monuments and memorials a valuable public purpose. The office recounted Robert Smalls's life at length, his escape from slavery by commandeering the Confederate steamer Planter, his Civil War service, and his career in the South Carolina legislature and the U.S. Congress, to underscore that a monument to him preserves the state's history and educates the public about a major historical figure. It concluded the Commission is a state agency whose work serves an important public purpose.

What this means for you

The Department of Administration and the Commission: The opinion gives the office the confirmation it sought. The Robert Smalls Monument Commission is treated as a state agency, and designing and siting the monument is treated as a valid public purpose, the predicate that lets the state and its staff support the project and handle donated funds for it.

Other state monument or historical commissions: The opinion reinforces a consistent line: bodies the Legislature creates to build monuments or preserve history (Hunley, Strom Thurmond, Tricentennial) are state agencies serving recognized public purposes. It is useful precedent for a commission asking the same threshold questions.

Donors and the public: The opinion supports the use of a designated state fund to receive private gifts and grants for the monument, since the underlying purpose qualifies as public. The Commission was directed to raise private funds and the Comptroller General set up an account for them.

Common questions

Is the Robert Smalls Monument Commission a government body?
Yes. The opinion concludes it is an agency of the State of South Carolina, created by the General Assembly through Act 183 of 2024 with a defined public mission.

Why does it matter whether building a monument is a "public purpose"?
Under South Carolina law, public resources and public involvement generally have to serve a public purpose. The opinion confirms that designing and placing a monument honoring Robert Smalls qualifies, because preserving history and educating the public are recognized public purposes.

Has the Attorney General said this about other monument commissions?
Yes. The opinion cites earlier opinions reaching the same conclusion for the Hunley Commission and the Strom Thurmond Monument Commission, and Supreme Court cases treating the Tricentennial Commission as a state agency.

Background and statutory framework

Act 183 of 2024 added § 10-1-185, creating the eleven-member Robert Smalls Monument Commission (the Department of Administration director or designee, five House members appointed by the Speaker, and five Senate members appointed by the Senate President). The Commission must report a proposed design and location to the State House Committee for approval by January 15, 2025, and if the monument is not dedicated by January 15, 2028, its powers transfer to the State House Committee. The Act directs the Department of Administration to help with the Commission's financial records and the Department of Archives and History to confirm the historical accuracy of the monument's engravings, and a designated state fund was set up to receive private gifts and grants.

The office grounded its agency analysis in Rice Hope Plantation v. S.C. Public Service Authority (defining a state agency as one created for the convenient accomplishment of an important governmental function) and Timmons v. S.C. Tricentennial Commission (treating the Tricentennial Commission as a state agency). For the public-purpose holding it relied on the principle, drawn from Timmons and Mims v. McNair, that expenditures of public funds for historical and recreational purposes are recognized public purposes, together with its own prior opinions on the Hunley and Strom Thurmond commissions.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-several-questions-regarding-the-robert-smalls-monument-commission/
• Original PDF: https://www.scag.gov/media/jncdjhuf/03664902.pdf

Original opinion text

W#¥ 4

Is

Alan Wilson
Attorney General

August 13, 2024

David Avant, General Counsel
South Carolina Department of Administration
Post Office Box 2825

Columbia, SC 292 1 1

Dear Mr. Avant:

You have presented several questions regarding the
Commission. By way of background, you provide the following:

Robert

Smalls

Monument

As you know, through Act 1 83 of 2024 (the "Act"), the General Assembly amended
the S.C. Code of Laws by adding Section 10-1-185 to create the Robert Smalls
Monument Commission (the "Commission").
The overarching role of the
Commission is to determine the design of a monument to Robert Smalls and the
location of the monument on the State House grounds. As the Commission embarks
upon its statutory tasks, I am asking for an opinion from your office confirming: 1)
the Commission is a governmental entity or agency of the State of South Carolina,

and 2) the Commission's mission serves a public purpose.
As the Act sets out, the monument is to represent the remarkable achievements and
accomplishments of Robert Smalls and his numerous, profound, and long-lasting
contributions to the state of South Carolina and its citizens. The Act empowers and
directs the Commission to raise private funds and receive gifts and grants to carry out
its purpose. The Commission is comprised of eleven members, including the director
of the Department of Administration or her designee, five members appointed by the
Speaker of the House of Representatives, and five members appointed by the
President of the Senate. The five members appointed by the Speaker of the House
are five sitting members of the House including Representatives Jermaine Johnson,
Sr., Wendell G. Gilliard, Brandon L. Cox, Patrick Bonner Haddon, and Sylleste H.
Davis.

The five members appointed by the President of the Senate are five sitting

members of the Senate including Senators Gerald Malloy, Shane Massey, Tom
Davis, George E. Campsen, III, and Margie Bright Matthews.
The Commission must report the proposed design and location of the monument to
the State House Committee for its approval by January 15, 2025. If the Robert
Smalls Monument has not been dedicated by January 15, 2028, the powers, duties,
and responsibilities of the Commission are transferred to the State House Committee.
R EMbER-iC. Dennis B< hlmng

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PosrOrFiCE 3o.x i 1549

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Colombia. SC 292 11-1549

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David Avant, General Counsel
Page 2

August 13, 2024

Additionally, the Act requires the staff of the Department of Administration to assist
with the preparation and maintenance of the Commission’s financial records and the
South Carolina Department of Archives and History to consult with the Commission

to “. . . determine and confirm the historical accuracy of the monument's engravings.”
Additionally, the Comptroller General has established a designated State fund within
the South Carolina Enterprise Information System - SCEIS - to accommodate receipt
of private funds, gifts and grants donated for the purposes of the Act.
The Commission is similar to other commissions created by the General Assembly to
foster historical and educational purposes that have been found to be state entities.

For

instance,

previous

Attorney

General's

opinions

referred

to

the

Hundley

Commission, established to, among other things, "... make a study ... regarding the ...
salvage of the Hunley" and "... submit a recommendation for an appropriate site in
South Carolina for the permanent display and exhibition" of the Hunley to the
General Assembly as a state agency or governmental entity. See Op. S.C. Atty. Gen.
October 22, 2004 (2004 WL 2451471) and Op. S.C. Atty. Gen. April 16, 1996 (1996

WL 265780).

It was opined that the Hunley Commission's purposes - “historic

preservation and education of the public - are valid public purposes" Op. S.C. Atty.
Gen. January 9, 1996 (1996 WL 82892).

Additionally, a 1997 opinion found the

mission of the Strom Thurmond Commission, created by Act 159 of 1997 to "design

and establish an appropriate monument to be placed on the grounds of the Capitol
Complex to recognize the accomplishments of the Honorable Strom Thurmond"
constituted an educational purpose. Op. S.C. Atty. Gen. December 17, 1997 (1997
WL 811914). Finally, there have been multiple opinions pointing out that South

Carolina's "... Supreme Court has recognized that the erection of monuments,
markers and memorials to the gallantry of service by men and women during wartime
constitutes a valuable public purpose.” E.g. Op. S.C. Atty. Gen. June 10, 2014 (2014
WL 2757536).

While it seems clear that the Commission is an agency or entity of the State of South
Carolina and that its overarching purpose, establishing a monument on the State
House Grounds to honor a significant figure in South Carolina history, is a public

purpose, we are asking for an Attorney General's opinion specific to the Robert
Smalls Monument Commission as confirmation.

Law/Analysis
We agree with your analysis and conclude that the Robert Smalls Commission is an

agency of the State and that the Commission’s purpose - to design a monument honoring Robert
Smalls and proposing that it be placed on the State House grounds - serves a valid and
overriding public purpose.

As your letter notes, we have addressed previous similar situations in earlier opinions. In
Op. S.C. Att’v Gen., 2004 WL 2451471 (October 22, 2004), for example, we concluded that the

Hunley Commission was governmental entity, created by the General Assembly for the valid
public purpose of making “a study . . . regarding the salvage of the Hunley” and submitting to

David Avant, General Counsel
Page 3

August 13, 2024

the General Assembly “a recommendation for an appropriate site in South Carolina for the
permanent display and exhibition” of the Hunley. There, we opined that the Hunley Commission
served an important public purpose, noting that “historic preservation and education of the public

• are valid public purposes.” We recognized that “[i]t is settled that expenditures of public funds
  for historical and recreational purposes are for recognized public purposes.” (quoting Op. S.C.
  Att’y Gen., Op. No. 88-58 (August 2, 1988), citing Timmons v. S.C. Tricentennial Comm., 254
  S.C. 628, 175 S.E.2d 805 (1970); Mims v, McNair, 252 S.C. 64, 165 S.E.2d 355 (1969).
  Likewise, in Op. S.C. Att’y Gen., 1997 WL 811914 (December 17, 1997), we found that

the Strom Thurmond Monument Commission, which was created by the Legislature to establish
a monument on the State House grounds, to honor Senator Strom Thurmond and his service to
the State, and nation, constituted a state agency which served an important public purpose.

In
our view, the Monument Commission performed an “educational purpose” - educating the
public regarding the historical accomplishments of Senator Thurmond.
We stated in that
opinion:
For the foregoing reasons, it is our opinion that the proposed monument to the tireless
work and to the lasting achievements of Senator J. Strom Thurmond would constitute
an "educational purpose." Clearly, Senator Thurmond has been and continues to be a
major public figure in South Carolina history. His remarkable career and voluminous

record of service, not only to his State, but to his country, is virtually without peer.
South Carolina has produced few presidential candidates, but Senator Thurmond's
name is among those, such as John C. Calhoun, who have offered for the presidency.

His first election to the United States Senate -- by write-in -- is unparalleled. His
devotion to the strengthening of this Country's military and to the weakening of the
federal government's stranglehold over the States has been unwavering.
Unquestionably, historians will record that Senator Thurmond's place in this State's
history as a member of all three branches of state government - chief executive,
judiciary and legislative, as well as a distinguished member of the United States
Senate, is forever preserved. Thus, a monument celebrating his life and attesting to

his accomplishments is, without doubt, educational to the people of South Carolina.

Our Supreme Court has frequently concluded that an “agency of the State” is created “for
the convenient accomplishment of what must be regarded as an important governmental
function.” Rice Hope Plantation v. S.C. Pub. Serv. Auth., 216 S.C. 500, 515-16, 59 S.E.2d 132,
138 (1950), overruled on other grounds by McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741
(1985). Certainly, the preservation of the State’s history and the education of its citizenry

regarding that history is such a function.
Importantly, the Court has concluded that the
Tricentennial Commission, created to honor South Carolina’s founding, constituted a “State

agency created by the General Assembly for the purpose of commemorating the 300th birthday of
the State. . . .” Timmons v. S.C. Tricentennial Comm., 254 S.C. 378, 385, 175 S.E.2d 805, 808

(1970). These principles are equally applicable here.

David Avant, General Counsel
Page 4

August 13, 2024

Robert

Smalls’ life is, without question, one of amazing and outstanding
Smalls overcame all odds including the scourge of slavery. His biographer
characterizes him as the first African-American hero of the Civil War. His service to his State
and nation on behalf of the people thereof is truly exemplary. As his biography in the South
Carolina Encyclopedia attests, Smalls was born into slavery, the son of a house slave, Lydia
Smalls. Early on, he worked as a waiter, lamplighter, stevedore and ship rigger in and around
accomplishments.

Charleston. Yet, he went on to great accomplishments.

Smalls, for example, performed extraordinary feats of courage and heroism during the
Civil War. According to the South Carolina Encyclopedia article on Smalls’ life, authored by his
biographer, Edward Miller,
[a]s Smalls was a knowledgeable pilot, his services were in demand. On December I,
1863, he was piloting the Planter near Secessionville when severe enemy fire caused
the white captain to abandon his position.

Smalls brought the vessel out of danger
and was awarded with an army contract as captain of the Planter. He was the first

black man to command a ship in U.S. service and remained captain of the Planter
until it was sold in 1866. By his own account, Smalls was involved in seventeen
military engagements during the war.

After the war Smalls settled in his native Beaufort, where he purchased the house of
his former master. Smalls's war-time accomplishments made him a political force in
the Sea Islands, with its overwhelmingly black population. In 1867 Smalls was one
of the founders of the Republican Party in South Carolina, an organization to which
he remained loyal all his life. In 1868 he was a delegate to the state constitutional
convention and won election to the state House of Representatives, where he

represented Beaufort County until 1870. That same year Beaufort voters sent Smalls
to the state Senate, and in 1 873 he was promoted to major general in the militia. In
the Senate, Smalls was made chairman of the printing committee, an assignment with
the potential for graft. In 1 877 he was tried and convicted of accepting a bribe and
was sentenced to three years, but he was pardoned in an amnesty that also quashed
proceedings against Democrats for election irregularities. Even Smalls's enemies at
the time said that the case against him was not strong, and it was likely part of the
campaign to remove African Americans from public office.
In 1874 Smalls was elected to the U.S. House of Representatives.

He was reelected

to the following Congress and served intermittently until 1 886.

With the return of
Democratic rule in South Carolina after 1876, Smalls had increasing difficulty
winning reelection. He lost to George D. Tillman in 1878 and 1880 but successfully

contested the results of the latter election and took Tillman's seat in July 1882. Two
years later Smalls failed to secure renomination, losing to Edmund W. M. Mackey,

who died soon after taking office. Smalls was elected to fill the vacancy and returned
to Washington in March 1 884, but he lost a bid for another term in 1 886. While in
Congress, Smalls earned a reputation as an effective speaker. He secured
appropriations for harbor improvements at Port Royal and was a vocal opponent of

the removal of federal troops from the South.

David Avant. General Counsel
Page 5

August 13, 2024

After returning to South Carolina, Smalls successfully lobbied his old congressional

colleagues for a veteran's pension and more compensation for the Planter.

His last

major political role was as one of six black members of the 1895 state constitutional
convention, where he
Americans.

unsuccessfully opposed

efforts to disenfranchise African

In 1889 President Benjamin Harrison appointed Smalls as collector of

customs for the port of Beaufort, an office he held, except during President Grover
Cleveland's second

term,

until June

1913,

when he was forced out by South

Carolina's senators.

Smalls died on February 22, 1915, at his home in Beaufort. He

was buried in Tabernacle Baptist Churchyard.

Conclusion

Based on the foregoing, we conclude that the Robert Smalls Commission is a State
agency and that the exercise of its duties serves an important public purpose.

Incredibly, Smalls

went from being born into slavery, to Civil War hero, to South Carolina Representative and
Senator and Congressman, to delegate to the 1895 Constitutional Convention.

State and nation remarkably well.

He fought for the right of all to vote.

He served his

The Commission is

required to design a monument to Smalls’ life and recommend placement of the monument on
the State house grounds.

This promotes the important purpose of preserving the State’s history

and educating the public regarding a major historical figure in South Carolina.

Sincerely,

Robert D. Cook

Solicitor General