Could a Midlands Technical College program director also serve on South Carolina’s Auctioneers Commission?

Plain-English summary

A state licensing official asked whether Patsy Towery, director of a Midlands Technical College program, could also serve on South Carolina's Auctioneers' Commission. The Attorney General treated commission membership as a public office because its members exercised state power, including licensing and disciplinary authority. It treated Towery's described college job as outside the constitutional definition of a public office because her duties did not amount to such an office. The two roles therefore did not trigger the constitutional dual-office prohibition on the facts supplied.

Currency note

This opinion was issued in 2004. 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: Was an Auctioneers' Commission seat a public office?
A: The AG said yes. It cited the commission's statutory creation, appointed terms and powers over licensees.

Q: Did the college director position also count as a public office?
A: The AG said no based on the duties Towery supplied and the absence of a statute creating that position.

Q: Did this letter resolve any State Ethics Act question?
A: No. It said the State Ethics Commission was the proper body to interpret that Act and that Towery had already received an opinion from it.

Background and statutory framework

The South Carolina Constitution prohibited one person from holding two offices of honor or profit at the same time, subject to listed exceptions. The opinion applied the public-office test to each role separately. It identified the Auctioneers' Commission's authority to administer oaths, subpoena witnesses and take licensing action as exercises of sovereign power, while finding the described college directorship did not meet that test.

Citations

• Section 8-13-320 (11)
• Section 40-6-10
• Sanders v. Belue
• State v Crenshaw

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-10-2004-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04aug-10-Bryant.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
AlTORNEY GENERAL

August 10, 2004

Randall Bryant, Assistant Deputy Director
South Carolina Department of Labor, Licensing & Regulation
Post Office Box 11329
Columbia, South Carolina 29211-1329

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Dear Mr. Bryant:
In a Jetter to this office you raised a question as to whether Mrs. Patsy Towery, Director, Center for Special Programs and Community Education at Midlands Technical College may serve on the State Auctioneers' Commission. ram interpreting your question as to whether her service with the Auctioneers' Commission would be a violation of this State's prohibition on dual office holding. Mrs. Towery has already received an opinion from the State Ethics Commission on her question. That body is the appropriate agency to render opinions construing the State Ethics Act. See: S.C. Code Ann. Section 8-13-320 (11) (Supp. 2003).

Article XVII, Section I A of the State 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, a constable, or a notary public. For this provision to be contravened, a person concurrently must hold two public 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 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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The State Auctioneers' Commission is established pursuant to the provisions of S.C. Code Ann. Sections 40-6-05 et seq. (Supp. 2003). While this office bas not previously addressed the question as to whether a member ofthe Auctineers' Commission would hold an office for dual office holding purposes, a review of the statutory provisions regarding the Commission results in our interpretation that a Commission member would hold an office for such purpose. The Commission is composed of five members appointed by the Governor who hold office for terms of three years and until their successors are appointed and qualify. Section 40-6-10. Duties are specified in Sections 40-6-80, 40-6-100 through 40-6- 130. The Board is empowered to administer oaths and subpoena witnesses for purposes ofinvestigation, take evidence, compel compliance, issue cease and desist orders, petition for injunctive relief, take action against a licensee, revoke, suspend or restrict the license of an individual licensed by the Commission and deny licensure. It is clear that these
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REMBERT C. (lENNis BU!WING • POST OFFICE Box 11549 • COl.UMBIA, S.C. 292 11 · l549 • TELEPHONE; 803· 734-3970 • FACSIMJLE: 803-253-6283

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Mr. Bryant
Page 2
August 10, 2004

duties involve an exercise of a portion of the sovereign power of the State. Therefore, in my opinion, a member of the State Auctioneers' Commission would hold an office for dual office holding purposes of the State Constitution.

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As to Mrs. Towery' s position as Director of the Center for Special Programs and Community Education at Midlands Technical College, I am unaware of any such provision having been created by statute. Mrs. Towery has provided a description of her duties in that position and it is my opinion that such duties do not qualify as an office for dual office holding purposes. As a result, there would not be any dual office holding prohibition to Mrs. Towery serving both as Director of the aforementioned program and as a member of the State Auctioneers' Commission. Ifthere is anything further, please advise. Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General