Could a state senior psychologist also serve on South Carolina's psychology licensing board?

Plain-English summary

The Vocational Rehabilitation Department asked whether its senior psychologist could also join South Carolina's Board of Examiners in Psychology. The Attorney General concluded in 2009 that the two roles did not violate the constitutional dual-office rule. The board seat exercised licensing and disciplinary authority and was an office. The department job, as described, was an employee position, so the person did not hold two offices.

The office noted that no law established a separate senior-psychologist office, the employee served at the department's pleasure, and the position did not have a stated term or oath. Those facts distinguished the job from the licensing-board seat under the sovereign-power test.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was the psychology board seat a public office under the opinion?
A: Yes. The board's statutory licensing, examination, investigation, and disciplinary powers supported that classification.

Q: Did the senior-psychologist job count as a second office?
A: The Attorney General said no based on the job's employment terms and the absence of a separate statutory office, fixed term, or oath.

Q: Could the same person hold both roles under the facts presented?
A: Yes. The dual-office ban required two offices, and the opinion found only one.

Background and statutory framework

The letter applied Article VI, section 3 and Article XVII, section 1A of the South Carolina Constitution. It compared the board's powers as a legislatively created licensing body with the senior psychologist's employee duties. The office concluded that the latter was not an office for the constitutional test.

Citations and references

Constitution: Article VI, section 3 and Article XVII, section 1A, as quoted in the opinion. Statutory context: The opinion discusses the psychology board's creation and powers in Title 40.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-1-2009-3/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Batten-J.-4-1-2009-01203720xD2C78.pdf

Original opinion text

John E. Batten, IV, 2009 WL 1266915(2009)

2009 WL 1266915(S.C.A.G.)

Office of the Attorney General
State of South Carolina

April 1,2009
*1 John E. Batten,IV
General Counsel

South Carolina Vocational Rehabilitation Department
Post Office Box 15

West Columbia, South Carolina 29171-0015
Dear Mr. Batten:

We understand from your letter that you desire an opinion ofthis Office as to "whether it is permissible under the state law and regulations for one ofour employees(a PhD Senior Psychologist with the State Agency ofSouth Carolina Vocational Rehabilitation Department-Disability Determination Services) to simultaneously serve on the South Carolina Board of Examiners in Psychology within the State Agency of the South Carolina Department of Labor, Licensing and Regulation." You also state in your letter that you are specifically "concerned with the dual-office-holding prohibitions found in the South Carolina Constitution, Art. VI, See. 3." Law/Analysis

Article VI, section 3 of the South Carolina Constitution (Supp. 2008) provides: "No person may hold two offices of honor or profit at the same time. This limitation does not apply to officers in the militia, notaries public, members of lawfully and regularly organized fire departments, constables, or delegates to a constitutional convention." In addition, article XVII, section IA of the South Carolina Constitution (Supp. 2008) prohibits a person from holding "two offices

of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public." To contravene these provisions, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue. 78 S.C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position's duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw. 274 S.C. 475, 477, 266 S.E.2d 61,62(1980).

The Legislature created the State Board of Examiners in Psychology (the "Board") via section 40-55-20 of the South Carolina Code (2001). Generally, the Board is charged with the authority to conduct examinations, license, regulate, investigate, and revoke or suspend the license ofthose engaged in the practice of psychology. S.C. Code Ann.40-55-100; 40-55-55; 40-55-40; 40-55-130;40-55-1540(2001). Section 40-55-20 calls for the Board to be composed of"three clinical

psychologists, two counseling psychologists, one school psychologist, one psychologist who is licensed in experimental, social, industrial/organizational or community psychology, and one lay member." S.C. Code Ann. 40-55-20. Members of the Board are nominated by various professional organizations and appointed by the Governor for five-year terms. S.C. Code Ann. 40-55-30 (2001). Members of the Board may receive a per diem and reimbursement for mileage. S.C. Code Ann. 40-55-40.

*2 Although the Board's enabling legislation does not require its members to take an oath,the fact that the Board was created by the Legislature, its members are required to satisfy certain criteria to be a member of the Board, and the fact that its members are appointed by the Governor for a specified term indicate that a position on the Board is an office.

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John E. Batten, IV, 2009 WL 1266915 (2009)

Moreover, the authority given to the Board by the Legislature strongly indicates that the Board has the ability to exercise some portion of the sovereign power of the State. As such we believe membership on the Board is an office. Our opinion is further supported by several opinions of this Office concluding that service on a professional licensing

board constitutes an office for purposes of the constitutional prohibition on dual office holding. See, e.g.. Ops. S.C. Atty. Gen., June 14, 2007 (determining that a member of the South Carolina Environmental Certification Board holds an office); April 29, 2004(finding a Commissioner of Pilotage for the Port of Charleston holds an office); October 8, 2003 (concluding that a member of the State Board of Law Examiners holds an office); April 12, 1993 (determining that membership on the State Board of Examiners in Opticianry, State Board of Examiners in Optometry, and the State Board of Physical Therapy Examiners are all offices). Thus, we must only conclude whether or not holding a position as a

Senior Psychologist for the South Carolina Vocational Rehabilitation Department (the "Department") is also considered to be an office.

We note no provision under South Carolina law establishing the position of Senior Psychologist. According to your letter, this position serves at the pleasure of the Department and there is no indication that this position is for a specified term or is required to take an oath. As our Supreme Court in Sanders. 78 S.C. at 1 74, 58 S.E. at 763, expressed "one who

merely performs the duties required of him by persons employing him under an express contract or otherwise, though

such persons be themselves public officers, and though the employment be in or about a public work or business, is a mere employe." As such, we believe service as a Senior Psychologist for the Department is that of a mere employee

and not as an officer for purposes of dual office holding. Thus, we do not believe service on the Board and as a Senior

Psychologist runs afoul of article VI, section 3 or article XVII, section 1 A of the South Carolina Constitution. Conclusion

We believe that a court is likely to find a position on the Board is an office for purposes of dual office holding. However,

we are of the opinion that serving as a Senior Psychologist for the Department constitutes service as an employee rather

than an officer. As such, we do not believe simultaneous service in both of these positions constitutes an office for purposes of dual office holding. Very truly yours, Henry McMaster

Attorney General

*3 By: Cydney M. Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook

Deputy Attorney General

2009 WL 1266915 (S.C.A.G.)

End of Document

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