Could a South Carolina senator also serve on the Uniform Law Commission?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that a state senator could also serve as a commissioner on the state's board for promoting uniform legislation. A Senate seat counted as a public office, but the uniform-law board's duties were advisory and did not exercise state sovereign power. The second role therefore was not a public office for the constitutional dual office holding rule.

The opinion noted that statute created the board and described its work of studying, conferring on, drafting, and recommending uniform laws. It found no prescribed tenure, salary, qualifications, or oath for commissioners. The board's advisory function carried the most weight in the AG's conclusion.

Currency note

This opinion was issued in 2011. 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

Could the senator serve on both bodies at once?
A: The AG said yes. The uniform-law commissioner's advisory role did not count as a second public office under the dual-office rule.

Was the board's statutory creation enough to make membership a public office? A: No. The AG considered statutory creation but emphasized that the board did not exercise sovereign power.

What did the uniform-law board do?
A: The opinion described its duties as examining topics suited to uniform laws, conferring with other states' commissioners, and drafting or recommending proposed laws.

Background and statutory framework

A senator asked whether serving on the uniform-law commission conflicted with his Senate seat. The AG applied the constitutional rule against holding two public offices and the established test concerning exercise of sovereign power. It read S.C. CODE ANN. § 1-21-20 as assigning the board advisory drafting and recommendation duties.

Citations and references

The opinion quotes S.C. CODE ANN. § 1-21-20 and discusses Sanders v. Belue and State v. Crenshaw on the definition of a public office. It follows earlier AG opinions about advisory boards.

Official title

Asking whether your service as a commissioner on the Uniform Law Commission would violate the dual office prohibition of the South Carolina Constitution, as you currently serve as a South Carolina State Senator.

Requester

The Honorable Robert W. Hayes, Jr., Member, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-18-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/hayes-r-w-jr-os-9248-4-18-11-dual-office-holding.pdf

Original opinion text

ALANWn..soN
AITORNBYGBNERAL

The Honorable Robert W. Hayes, Jr.
South Carolina Senate, District 15
P.O. Box 142
Columbia, SC 29202
Dear Senator Hayes:
We are in receipt of your letter regarding dual office holding. You asked whether your service as a commissioner on the Uniform Law Commission would violate the dual office prohibition of the South Carolina Constitution, as you currently serve as a South Carolina State Senator. This opinion will address prior relevant opinions regarding dual office holding. Article XVll, Section lA of the South Carolina Constitution (Supp. 2007) 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 a notary public. To contravene this provision, 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, 58 S.E. 762 (1907). Further, our courts recognize other relevant considerations such as whether a statute, or other such authority, establishes the position, proscribes the position's tenure, 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). As service as a state senator clearly qualifies as an office for purposes of "dual office holding," the relevant inquiry is whether serving as a commissioner on the Uniform Law Commission constitutes an office in violation of the dual office holding prohibition. Sections 1-21-10 - 30 of the South Carolina Code governs the "Board of Commissioners for Promotion of Unifonnity of Legislation in the United States." Section 1-21-10 provides that "[t]he Governor shall appoint three suitable persons who, with their successors, shall constitute a 'Board of Commissioners for the Promotion of Uniformity of Legislation in the United States.'" Further, any vacancy shall be filled by appointment by the Governor. Id. The duties of the Board are to: (1) Examine the subjects of insolvency, the descent and distribution of property, the execution and probate of wills and other subjects upon which uniformity of legislation in the various states and territories of the union is desirable but which are outside the jurisdiction of the Congress of the United States; (2) Confer upon these matters with the commissioners appointed by other states and territories for the same purpose;

REMBmrrC. DENNIS Bun.DINO • POST OPFICE Box 11549 • COLUMBIA, SC 29211-1549 • Tuu!PHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Robert W. Hayes, Jr.
Page2
April 18, 2011
(3) Consider and draft unifonn laws to be submitted for approval and adoption of the several states; and (4) Generally devise and recommend such other or further course of action as shall accomplish the purposes of this chapter. S.C. CODE ANN. § 1-21-20. The final section of Chapter 21 simply provides for the Board to keep a record of its transactions and to make a report to the General Assembly. S.C. CODE ANN.§ 1-21-30. Although the position is established by statute, which describes the duties of the position, there appears to be no tenure, salary, qualifications, or oath prescnbed for a commissioner on the Unifonn Law Commission. Most significantly, the duties of the Board appear to be advisory in nature and do not involve an exercise of the sovereign power of the State. As stated in a prior opinion, "[t]his Office has concluded on numerous occasions that members of advisory bodies are not considered office holders." Op. S.C. Att'y Gen. (May 2, 2000) (citing Ops. S.C. Att'y Gen. dated May 9, 1989 (Indigent Care Advisory Board); May 15, 1989 (Work Support Advisory Council); and October 12, 1990 (Beaufort County Aviation Board)). See also Op. S.C. Att'y Gen. dated December 1, 2000 (Local Drought Response Committee is advisory in nature and therefore not an office) and September 18, 1975 (State Personnel Advisory Council is advisory and therefore does not exercise sovereign power of this State). Accordingly, consistent with our earlier opinions, it is the opinion of this Office that a member of the "Board of Commissioners for the Promotion of Uniformity of Legislation in the United States" should not be considered an officer for dual office holding purposes. Therefore, you may serve as a member of the South Carolina Senate as well as on the Board of Commissipners for the Promotion of Unifonnity of Legislation in the United States. Very truly yours,

Assistant Attorney General
REV

D AND APPROVED BY:

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obert D. Cook
Deputy Attorney General