Did serving on the Central Midlands Council of Government count as a second public office in South Carolina?

Plain-English summary

In 2003, Senator Knotts asked whether service on the Central Midlands Council of Government counted as holding a public office under South Carolina's dual-office prohibition. The Attorney General answered no. It concluded that council membership was outside that prohibition for the officials and employees covered by express state constitutional exemptions.

The opinion began with the general public-office test: an office usually carries continuing duties involving an exercise of state sovereign power. It then focused on constitutional language addressing regional councils of government. Article VII, § 15 and Article VIII, § 13 protected elected or appointed officials and government employees who served on regional councils from the dual-office bar. The AG also cited several earlier opinions reaching the same result for regional councils, including a school board member who chaired one.

Currency note

This opinion was issued in 2003. 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: Did Central Midlands Council membership count as a public office for dual-office purposes? A: The AG said it did not under the constitutional provisions it applied in 2003.

Q: Could an elected official also serve on a regional council? A: The opinion quoted constitutional language exempting elected and appointed officials serving on regional councils from the dual-office prohibition.

Q: Why did the opinion discuss sovereign power?
A: That was part of the ordinary test for identifying a public office. The opinion then applied the specific constitutional treatment of regional councils.

Background and statutory framework

The South Carolina Constitution barred simultaneous holding of two offices of honor or profit. The opinion quoted Article VII, § 15 and Article VIII, § 13, which addressed regional councils of government and exempted service by covered officials or employees. The AG treated those provisions and its earlier regional-council opinions as controlling for Central Midlands.

Citations and references

• Article VII, § 15 and Article VIII, § 13 of the South Carolina Constitution: regional-council provisions quoted in the opinion.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907): the opinion's public-office test.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-28-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03april28knotts.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
ATTORNEY GENERAL

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April 28, 2003

The Honorable John M. Knotts, Jr.
Senator, District No. 23
Post Office Box 142
Columbia, South Carolina 29202

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Dear Senator Knotts:
You have asked for an opinion as to whether a person serving on the Central Midlands Council of Government holds an office for dual office holding purposes. It is our opinion that a member of the Central Midlands Council of Government does not hold an office for purposes of the dual office holding provisions of the South Carolina Constitution. Law I Analysis Article XVII,§ 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, a member of a lawfully and regularly organized fire department, constable, or a notary public. As concluded by Attorney General Daniel McLeod in an opinion dated April 26, 1977, "[ t]o determine whether a position is an office or not depends upon a number of circumstances, and is not subject to any precise formula." The South Carolina Supreme Court has held that 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). "One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing and not occasional or intermittent, is a public officer." Id., 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes, or other authority, establish the position, prescribe its tenure, 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).

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In an opinion of this Office dated May 2, 1996, we described at length the authority creating the Central Midlands Regional Planning Council and the powers exercised by that entity. We also addressed provisions in the South Carolina Constitution which concern regional councils of government and the relationship of those provisions to Central Midlands. It is helpful, by way of background to quote liberally from this opinion:
... there are two constitutional provisions which are to be considered when analyzing powers and duties of regional councils of government. The first is Article VII, Section 15, which provides:

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REMBERT C. DENNIS Bunn.ING

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Posr OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable John M. Knotts, Jr.
Page 2
April 28, 2003

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The General Assembly may authorize the governing body of a
county or municipality, in combination with other counties and
municipalities, to create, participate in, and provide financial support for organizations to study and make recommendations on matters affecting the public health, safety, general welfare, education, recreation, pollution control, utilities, planning, development and such other matters as the common interest of the participating governments may dictate. Such organizations, which shall be designated regional councils of government, may include political subdivisions of other states. The studies and recommendations by such organizations shall be made on behalf of and directed to the participating governments and other governmental instrumentalities which operate programs within the jurisdiction of the participating governments. The legislature may authorize participating governments to provide financial support for facilities and services required to implement recommendations of such organizations which are accepted and approved by the governing bodies of the participating political subdivisions. Such organizations shall not have the power to levy taxes. Local funds for the support of such organizations shall consist of contributions from the participating political subdivisions as may be authorized and granted by their respective governing bodies.
[The prohibitions against dual office holding contained in Section 2 of Article 2 and Section 24 of Article 3 of this Constitution shall not apply to any elected or appointed official or employee of government who serves as a member of a regional council.] This constitutional provision has been deemed not to be self-executing; the statutory provisions of §6-7-110 et seq. thus effectuate the constitutional provisions. The second constitutional provision to be considered is Article VIII, Section 13, which provides in relevant part: (A) Any county, incorporated municipality, or other political subdivision may agree with the State or with any other political subdivision for the joint administration of any function and exercise of powers and the sharing of the costs thereof. (B) Nothing in this Constitution may be construed to prohibit the State or any of its counties, incorporated municipalities, or other political subdivisions from agreeing to share the lawful cost, responsibility, and administration of functions with any one or more governments, whether within or without this State. (C) The prohibitions against dual office holding contained in Article VI of this Constitution do not apply to any elected or appointed

The Honorable John M. Knotts, Jr.
Page 3
April 28, 2003
official or employee who serves on a regional council of government created under the authority of this section. (Emphasis added).

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This Office has applied the referenced provisions of the State Constitution-Article VII, § 15 and Art. VIII, § 13 - on a number of occasions in concluding that membership on a regional council of government does not constitute an office for dual office holding purposes. In an opinion dated August 29, 2001, we opined that a person could serve simultaneously as a member of a school board and as Chairman of a Regional Council of Governments without contravention of the Constitution. In an opinion dated June 28, 1995, we stated that "Article VII, § 15 and Article VIII, l 3(C) of the state Constitution exempt members of regional councils of governments, who are elected or appointed officials or employees of government, from the dual office holding prohibitions of the South Carolina Constitution.. " And in Op. S.C. Atty. Gen., May 6, 1992, we concluded that
[m ]embership on a council of governments, as to elected or appointed officials or employees, is not deemed to be an office, by virtue of express exemption of the state Constitution. See Art. VIII, § 13 and Art. VII, § 15 of the state Constitution; also Ops. Atty. Gen. dated February 7, 1984 and November 4, 1991 ....

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In the February7, 1984 opinion (No. 84-13), we reasoned that "the prohibition against dual office holding in Article VI, Section 3 must be read with Article VIII, Section 13 as not applying to elected city, county or state officials who would also serve on the Appalachian Council of Governments." See also, Ops. S.C. Atty. Gen., March 11, 1982; March 21, 1978; February 1, 1973; February28, 1972; September 17, 1970; December 29, 1969. Each of these opinions is clear that membership on a regional council of government board is not an office for dual office holding purposes. Conclusion For the foregoing reasons, and based upon the foregoing authorities, it is our opinion that membership upon a council of government (COG)- in this instance, Central Midlands - is not an office for dual office holding purposes.

lbert

D. Cook
Assistant Deputy Attorney General

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