Could a Barnwell soil and water commissioner also serve on Denmark Technical College’s area commission?

Plain-English summary

A lawyer asked whether one person could serve both on the Barnwell County Soil and Water Conservation District commission and as Barnwell County’s area commissioner for Denmark Technical College. The AG concluded that both were public offices and simultaneous service was prohibited by South Carolina’s constitutional dual-office rule.

Earlier AG opinions had already treated soil and water conservation commissioners and area commissioners for other technical colleges as officers. For Denmark Technical College, the letter examined the area commission’s statutory powers, including control of facilities, hiring, spending, and eminent domain, and concluded those powers exercised sovereign authority.

Currency note

This opinion was issued in 2005. 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

Did the conservation district seat count as an office?
Yes. The AG cited earlier opinions consistently treating soil and water conservation commissioners as public officeholders.

Why did the technical college seat also count?
The area commission’s statutory powers included operating facilities, spending funds, hiring personnel, awarding credentials, and eminent domain. The AG viewed these as sovereign powers.

Could one person hold both seats under this opinion?
No. The AG concluded that concurrent service would violate the dual-office prohibition.

Background and statutory framework

The opinion applied Article XVII, Section IA of the South Carolina Constitution and discussed the Denmark area commission’s powers under Sections 59-53-610 and 59-53-630, together with other technical education provisions.

Citations and references

The original text cites Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907), for the sovereign-power test and concludes that the two seats “would constitute dual office holding.”

Official title

As to whether an individual serving simultaneously as Commissioner of the Barnwell County Soil and Water Conservation District and serving as Barnwell County Area Commissioner for Denmark Technical College would be in violation of the dual office holding provision of the South Carolina Constitution.

Requester

Thomas O. Sanders, IV, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-14-2005-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05apr14sanders.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY M cMAsnR

April 14, 2005

ATfORNEY GENERAL

Thomas 0. Sanders, N , Esquire
Sanders Law Firm, LLC
1738 Three Oaks Avenue
Charleston, SC 29407
Dear Mr. Sanders:

By letter dated, March 3, 2005, you requested an opinion as to whether an individual serving simultaneously as Commissioner of the Barnwell County Soil and Water Conservation District and serving as Barnwell County Area Commissioner for Denmark Technical College would be in violation of the dual office holding provision of the South Carolina Constitution. We advise that simultaneous service as Commissioner ofthe BamweU County Soil and Water Conservation District and as Barnwell County Area Commissioner for Derunark Technical College would constitute dual office holding.

b
P''~
1

Article :XVI1, Section IA of the South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time ... " with exceptions specified for an officer in the militia, member of a lawfully and regularly organized fire department, constable, or notary public. In order for this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its duties or salary, or require qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). Furthermore, "one who merely performs the duties required of him under an express contract or otherwise, though such persons themselves be public officers, and though the employment be in or about a public work or business, is a mere employee." Sanders, supra, 78 S.C. at 174. We have advised on nwnerous occasions that one who serves as a soil and water conservation commissioner would hold an office for dual office holding purposes. See, Ops. S. C. Atty. Gen. dated October 8, 1996; November 1, 1991 and December 17, 1990. Although apparently we have not specifically advised as to whether a Barnwell County Area Commissioner for Denmark Technical College is an officer for purposes of dual office holding, we have concluded on severaJ occasions that area commissioners for other statewide technical colleges are officers for purposes ofdual office holding. See, Ops. Atty. Gen. dated August 6, 1990 (Technical College of the Low Country);

.1
v/
,, ,.,.c.1 ~-.dk;

R.fMeERT,C. [}ENNIS B ull.DING •

Posr Ornci; Bo x 11549 • CoLUM.BIA. S.C. 2921 1- 1549 • TELEPHONE: 803-734-3970 • fACSL"llU: 803-253-6283

Mr. Sanders
Page2
April 14, 2005

February 1, 1985 (Horry-Georgetown); January31, 1985 (Chesterfield-Marlboro); February 15, 1984 (Richland-Lexington, now Midlands); June 24, 1984 (Sumter Area); and September 11, 1965 (Anderson-Oconee-Pickens).

I

Furthermore, the statute authorizing the position ofArea Commissioner clearly indicates that the exercise of such powers is an exercise of a portion of the sovereign power of the State. We note that the Area Commission was established by Section 59-53-610 to be a body politic and corporate. Residency in one of the counties served by the Commission is specified as a qualification. Id. The statute further provides for a term of four years, and until successors are appointed and qualify. Id. The statutes relative to this entity are silent as to an oath being required or compensation being paid to commissioners. The powers of area commissioners are specified in Section 59-53-630 as follows:
[t]he Commission has the same powers as provided in Article 1, Chapter 53, Title 59 of the 1976 Code, and in addition must prepare and submit its annual budget for approval to the State Board for Technical and Comprehensive Education. Denmark Technical College shall be funded in accordance with the provisions of Section 6 of Act 654 of 1976. In particular, in Article 1 of Chapter 53 of Title 59, powers of area commissioners are specified in Section 59-53-52 and include such powers as adopting bylaws, rules, and regulations; acquiring sites and constructing facilities; acquiring property by various means; operating institutional facilities; employing the chief administrative officer and other personnel; expending funds; exercising the right of eminent domain; awarding degrees and certificates; and the like. Section 59-53-53 authorizes area commissioners to borrow funds for capital improvements, as specified. Clearly, the exercise of these powers by any area commissioners would constitute the exercise of a portion of the sovereign power of the State. Accordingly, based upon the foregoing analysis and prior opinions of this Office, it is our opinion that simultaneous service as Commissioner of the Barnwell County Soil and Water Conservation District and as Barnwell County Area Commissioner for Denmark Technical College would constitute dual office holding for purposes of the South Carolina Constitution and would be prohibited thereby. rs,

f

e
Assistant Deputy Attorney General

RDC/an