Could one person serve on both South Carolina’s Education Oversight Committee and Conservation Bank Board?

Plain-English summary

In 2006, a senator asked whether an appointee could serve on both South Carolina's Education Oversight Committee and Conservation Bank Board. The Attorney General concluded that simultaneous service violated the state constitution's restriction on holding two offices of honor or profit. A 2002 AG opinion had already treated an Education Oversight Committee seat as an office. This opinion addressed the remaining question: whether a Conservation Bank Board seat was also an office.

The AG pointed to the statute establishing the board, fixing members' terms, and assigning powers over grants, loans, trust funds, and eligibility findings. Those duties exercised part of the state's sovereign power. The opinion concerned the two specified appointments; it did not analyze every combination of state board seats.

Currency note

This opinion was issued in 2006. 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: Could the same appointee sit on both boards in 2006?

A: The AG said no. It treated each position as a public office and concluded that holding them simultaneously violated article XVII, section 1A of the South Carolina Constitution.

Q: Did unpaid Conservation Bank Board service avoid the dual office rule?

A: No. The opinion noted that members served without compensation, but focused on the statutory office and its governmental powers.

Q: Why did the AG treat a Conservation Bank Board member as an officer?

A: The board was created by statute and exercised authority over grants, loans, trust funds, and eligibility decisions. The AG found that these duties involved sovereign power.

Background and statutory framework

The opinion applied the state constitutional ban on holding two offices of honor or profit at once. It relied on an earlier AG opinion for the Education Oversight Committee seat and examined the statutes' provisions on board membership, terms, and powers for the second seat.

Citations and references

• Article XVII, section 1A of the South Carolina Constitution: the dual office holding provision applied by the AG.
• Section 48-59-40: the board's creation, membership, and terms.
• Section 48-59-50: Conservation Bank powers considered in the sovereign-power analysis.

Official title

Concerning an appointee to the Education Oversight Committee (EOC), and whether it violates the law of dual office holdings.

Requester

The Honorable John Courson, Member, SC Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-28-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06apr28-Courson.pdf

Original opinion text

HENRY M CMASTER
ATTORNEY GENERAL

April 28, 2006

The Honorable John Courson
Senator, District No. 20
Post Office Box 142
Columbia, South Carolina 29202

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Dear Senator Courson:
We issue this opinion in response to your letter concerning an appointee to the Education Oversight Committee (EOC). According to your letter, an appointee to the ECO also holds an appointed position of the South Carolina Conservation Bank Board. Thus, you request an opinion as two whether "these appointments constitute dual office holding?" Law/Analysis

Article XVII, section lA of the South Carolina Constitution prohibits a person from holding "two offices ofhonor or profit at the same time . ... " S.C. Const. art. XVII§ lA (Supp. 2005). For this provision to be contravened, a person concurrently must hold two public offices that 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).

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This Office concluded a member ofthe EOC holds an office for dual office holding purposes in an opinion dated January 23, 2002. Op. S.C. Atty. Gen., January 23, 2002. We enclosed a copy of this opinion for your convenience. Therefore, we need onJy determine whether a member of the South Carolina Conservation Bank Board (the "Board) is an officer for dual office holding purposes. Section 48-59-30(2) ofthe South Carolina Conservation Act (Supp. 2005) (the "Act") names the Board as the governing body of the South Carolina Conservation Bank (the "Bank"). Section 48-59-40 of the Act (Supp. 2005) establishes the Board, and among other things, describes its members and their terms of office. Specifically, this section provides that three of the Board's twelve members are to be appointed by the President Pro Tempore of the Senate. S.C. Code Ann.
§ 48-59-40(A)(4). By your letter, you indicate this is the method by which the member of the Board in question gained a position on the Board. Section 48-59-40(B) under the Act states Board members are to serve a term of four years and are to serve without compensation.

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The Honorable John Courson
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April 28, 2006
Section 48-59-50 of the Act (Supp. 2005) establishes the Bank's duties and powers. As its governing board, we presume the Board is to perform these powers and duties. These powers include the authority to award grants, make loans, apply for and receive additional funding from the federal government and other sources on behalf of trust funds, receive charitable contributions and donations, and "exercise its discretion in determining what portion of trust funds shall be expended, awarded, or loaned in any particular year, and what portion of trust funds shall remain in the trust fund from one fiscal year to the next." Id. § 48-59-50(A). This statute also mandates the Bank:

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(1) operate a program in order to implement the purposes of this chapter; (2) develop additional guidelines and prescribe procedures, consistent with the criteria and purposes of this chapter, as necessary to implement this chapter; (3) submit an annual report to the Governor, Lieutenant Governor, and General Assembly that: (a) accounts for trust fund receipts and dispersals;

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(b) briefly describes applications submitted to the
bank, and in greater detail describes grants and loans
that were approved or funded during the current year,
and the public benefits, including public access,
resulting from such grants and loans;

(c) describes recipients of trust fund grants and loans;
and
(d) sets forth a list and description of all grants and
loans approved, and all acquisitions of land or
interests in land obtained with trust funds since the
bank's inception. The report shall include a map
setting forth the location and size of all such protected
lands.
(4) have an annual audit of the Conservation Bank and Conservation Bank Trust Fund conducted by outside independent certified public accountants and submitted to the Governor, Lieutenant Governor, and General Assembly. The accounting of trust fund receipts and expenditures required above shall be part of this annual audit.

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The Honorable John Courson
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April 28, 2006
Id. § 48-59-50(B). Section 48-59-70 of the Act (Supp. 2005), describing the procedures for granting funds to eligible trust funds, requires the Board evaluate the proposals received from trust funds according to a set of statutory criteria to determine whether they meet the stated qualifications. In addition, this section also requires the Board to make certain finding in relation to applications for grants and loans. S.C. Code Ann. § 48-59-70.

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The Act clearly establishes a member of the Board's position and prescribes the term of the position and his or her powers and responsibilities. In addition, given the statutes provided above, we conclude a Board member's duties involve the exercise of a portion of the sovereign power of the State. Based on this determination, it is our opinion a member of the Board is an officer for dual office holding purposes. Accordingly, an individual serving simultaneously as a member of the Education Oversight Committee and on the Board of the South Carolina Conservation Bank would be in violation of the prohibition on dual office holding pursuant to article XVII, section IA of the South Carolina Constitution. Very truly yours,

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Cydney M. Milling
Assistant Attorney General
REVIEWED AND APPROVED BY:

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~D.COOk
Assistant Deputy Attorney General