Could an Orangeburg planning commissioner also serve on the city aviation commission?

Official title

Whether the position of an individual on both the Orangeburg County Planning Commission and the City of Orangeburg Aviation Commission would constitute dual office holding.

Requester

James F. Walsh. Jr., Esq., City of Orangeburg Attorney

Plain-English summary

Orangeburg's city attorney asked whether one person could sit on the county planning commission and the city aviation commission. The Attorney General predicted that this combination did not violate South Carolina's dual-office prohibition. It treated planning commission membership as a public office, but found the aviation commission was advisory and did not exercise a part of the state's sovereign power.

The city ordinance gave the aviation commission a role advising council on airport facilities and barred it from creating city debt without council consent. The office also rejected a concern that the commission independently held statutory power to acquire air rights: it said that power belonged to qualifying political subdivisions, and this advisory commission lacked governmental functions making it one.

Currency note

This opinion was issued in 2014. 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 serving on both Orangeburg commissions violate the dual-office rule? A: The opinion predicted no, because only the planning commission seat qualified as an office of honor or profit on the facts reviewed.

Q: Why was the city aviation commission treated differently? A: The office read its ordinance as giving members an advisory role, without independent sovereign authority or power to obligate the city.

Q: Did the air-rights statute give this commission condemnation power? A: The opinion said no. It interpreted that statute as applying to airport commissions that are political subdivisions and concluded Orangeburg's commission was not one.

Background and statutory framework

The opinion applied the constitutional dual-office rule's public-officer test to each body. It relied on earlier planning-commission opinions and examined the city aviation commission's enabling ordinance, including the provision that it “shall advise city council.” The conclusion was specific to the powers the ordinance gave that commission.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-29-2014-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/05/walsh-j-f-jr-os-9776-4-29-14-dual-office-holding-00322463xD2C78.pdf

Original opinion text

0^otrnic^

Alan Wilson
Attorney General

April 29, 2014

James F. Walsh, Jr., Esq.
City of Orangeburg Attorney
P. O. Box 627
Orangeburg, SC 291 16-0627

Dear Mr. Walsh:
This Office received your request for an opinion regarding whether the position of an individual on both

the Orangeburg County Planning Commission and the City of Orangeburg Aviation Commission would constitute dual office holding. LAW/ANALYSIS:

The South Carolina Constitution provides that "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."

S.C.

Const, art. XVII § 1 A.

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is: "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." Sanders v. Belue, 78 S.C. 171, 174, 58 S.E. 762, 763

(1907). "In considering whether a particular position is an office in the constitutional sense, it must be demonstrated that "[t]he power of appointment comes from the state, the authority is derived from the law, and the duties are exercised for the benefit of the public." Willis v. Aiken County, 203 S.C. 96, 103 26 S.E.2d 313, 316 (1943). "The powers conferred and the duties to be discharged with regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority..." 63C Am Jur.2d Public Officers and Employees § 5 (2009).

Segars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E.2d 453 (2010). "Other relevant considerations [as to whether a position is a public office] include: 'whether the position was created by the legislature; whether the qualifications for appointment are established; whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others.'"

See Op. S.C. Attv. Gen.. June 17, 2013 (2013 WL

3243063) (quoting State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61,62 (1980)). An individual who serves on a planning commission is a public officer. In a prior opinion, we stated:

Rembert C. Dennis Building

•

Post Office Box 11549

•

Columbia, SC 29211-1549

•

Telephone 803-734-3970

•

Facsimile 803-253-6283

Mr. Walsh
Page 2

April 29, 2014

This Office has also consistently opined a position on a planning commission is an "office of honor or profit" for dual office holding purposes. As this Office stated in a previous opinion: Title 6, Chapter 29, Article 1 of the South Carolina Code

of Laws of 1976 governs the creation of local planning
commissions. S.C. Code § 6-29-320 states that the
"county council of each county may create a county

planning commission." The powers, qualifications and
duties of a local planning commission, as described in

Article 1 makes it clear that members exercise some
degree of sovereign power of the state, meaning that
membership on the Planning Commission constitutes an
office within the definition of the Sanders and Crenshaw
cases, supra. See S.C. Code § § 6-29-340 -6-29-380. On
numerous occasions, this Office opined that a member
of a county or municipal planning commission holds
an office for purposes of dual office holding. See Ops.

S.C. Attv. Gen.. November 27, 2007 (City of Mauldin
Commission); May 9, 2007 (Spartanburg

Planning

Planning Commission);

December

1,

2006

(Myrtle

Beach Planning Commission); April 10, 2006 (Town of
Bluffton Planning Commission); May 8, 2001 (Horry

County Planning Commission); August 3, 2000
(Charleston County Planning Commission) (emphasis
added).

Op. S.C. Attv. Gen.. December 12, 2013 (2013 WL 6831 1 1 1) (quoting Op. S.C. Attv. Gen.. 201 1 WL 3346433 (July 19, 2011).

The issue is whether an individual who is a member of the City of Orangeburg Aviation Commission is a public officer for dual office holding purposes. Section 2-10.4 of the Orangeburg Municipal Code creates the Aviation Commission and provides its duties. The ordinance states as follows: a.

There is hereby created, formed and established the Orangeburg aviation commission.

b.

The powers and duties of the commission shall be exercised and
performed by a commission, which shall consist of seven (7) individuals appointed by the city council of the City of Orangeburg. Each member of the commission shall be a qualified elector of the County of Orangeburg at the time of appointment and during incumbency.

c.

The term of all members shall be for a period of four (4) years, but of the initial appointments, two (2) shall be for one (1) year, two shall be for two (2) years, and two (2) shall be for three (3) years. Those members

Mr. Walsh
Page 3

April 29, 2014

presently serving on the existing aviation commission shall continue to serve until respective terms expire. d.

The commission shall elect a chairman, a vice-chairman, a secretary, and such other officers it deems necessary. The commission shall meet upon the call of its chairman, but not less frequently than one time in each three (3) calendar month period.

e.

The commission shall advise city council on all matters and things necessary

or

convenient

for

the

establishment,

maintenance

and

operation of adequate facilities for aviation and the accommodation of aerial travel as authorized under the statutory laws of the State of South Carolina.

The

commission

shall

have

no

power

to

create

any

indebtedness or obligation against the City of Orangeburg without the

written consent of city council.
/

Reserved.

g.

The commission shall at all times keep full and accurate account of its

actings and goings and of its receipts and expenditures.

At least once

annually, a complete report of the affairs of the commission shall be made to the Orangeburg city council. h.

The commission in the conduct of its affairs shall do so by a majority vote.

i.

No obligation of the commission shall ever constitute and indebtedness of the City of Orangeburg within the meaning of any state constitutional provision or statutory limitation and shall never constitute nor give rise

to a pecuniary liability or charge against the general credit or taxing power of the city.

j.

This section replaces and is in lieu of any enabling legislation or statutes heretofore creating the aviation commission.

City of Orangeburg Municipal Code § 2-10.4

Although the City of Orangeburg Aviation Commission is created by ordinance and the duties and term limits and qualifications for appointment of members are provided for in the ordinance, members of the Commission are not exercising part of the sovereign power of the State. They are serving in an advisory capacity only as shown by the fact that they are merely advising the city council on "the establishment, maintenance and operation of adequate facilities for aviation and the accommodation of aerial travel." Also, they ca not "create any indebtedness or obligation against the City of Orangeburg without the written consent of city council" and their obligations do not constitute an "indebtedness of the City of

Mr. Walsh
Page 4

April 29, 2014

Orangeburg. . . and shall never constitute nor give rise to a pecuniary liability or charge against the general credit or taxing power of the city." In a prior opinion, we determined: This Office has concluded on numerous occasions that members of advisory bodies are not considered office holders. See, e.g., Ops. Atty. Gen. dated May 9, 1989 (Indigent Care Advisory Board); May 15, 1989

(Work Support Advisory Council); and October 12, 1990 (Beaufort County Aviation Board). Op. S.C. Attv. Gen.. March 30, 2000 (2000 WL 655477). Therefore, a member of the City of Orangeburg

Aviation Commission does not hold an office of honor or profit for dual office holding purposes. Your concern is that Section 55-9-80 of the South Carolina Code may confer air rights, including the

acquisition of same through condemnation upon the City of Orangeburg Aviation Commission. Section 55-9-80 is part of the South Carolina Airports Act and it provides:

When necessary in order to provide unobstructed airspace for the landing and taking off of aircraft utilizing airports acquired or maintained under the

provisions

of

this

chapter,

the

division

and

the

counties,

municipalities, and other subdivisions, including duly constituted airport commissions and special purpose districts of this State may acquire air rights, including aviation easements, over private property necessary to ensure safe approaches to the landing areas of the airports, and for the

purpose of establishing and protecting airports and runways. These air rights may be acquired by grant, purchase, lease, or condemnation pursuant to the provisions of the Eminent Domain Procedure Act (Chapter 2, Title 28).

S.C. Code Ann. § 55-9-80 (1976 Code, as amended).

Our South Carolina Supreme Court has determined that you must look to the plain meaning of the statute when interpreting it. The Court held:

"Statutory construction must begin with the language of the statute." Kofa v. U.S. Immigration & Naturalization Serv., 60 F.3d 1084, 1088 (4th Cir.1995). "In interpreting statutory language, words are generally given their common and ordinary meaning." Nat'l Coal, for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 288 (4th Cir.1998). Where the language of the statute is unambiguous, the Court's inquiry is over, and the statute must be applied according to its plain meaning. Hall v. McCoy, 89 F.Supp.2d 742, 745 (W.D.Va.2000). Jennings v. Jennings. 401 S.C. 1, 736 S.E.2d 242 (2012).

Mr. Walsh
Page 5
April 29. 2014

Section 55-9-80 is clear that "the division and the counties, municipalities, and other subdivisions,

including duly constituted airport commissions and special purpose districts of this State may acquire air

rights. . .

(emphasis added). Looking at the plain meaning of the statute, an airport commission would

have to be a political subdivision in order to acquire air rights. The pertinent case appears to be Willis Construction Co.. Inc. v. Sumter Airport Commission. 308 S.C. 505, 419 S.E.2d 240 (Ct. App. 1992). In

Sumter Airport Commission, the Court stated that "[a] political subdivision is a division or subdivision of the State invested with governmental functions" (quoting Jackson v. Breeland. 103 S.C. 184, 88 S.E. 128

(1916)). The Court held that the Sumter Airport Commission was not a "political subdivision of the Slate" since "the Act creating the Sumter Airport Commission does not invest it with governmental functions, such as the ability to raise revenue or the power of eminent domain."

Since the enabling

ordinance of the City of Orangeburg Aviation Commission does not grant it governmental functions, it is not a political subdivision and therefore can not acquire air rights. CONCLUSION

In conclusion, this Office believes that a Court would determine that an individual could serve on both the Orangeburg County Planning Commission and the City of Orangeburg Aviation Commission without violating the dual office holding provision of the State Constitution.

Sincerely,

'ftElinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

7/1a/O*
Robert D. Cook
Solicitor General