Could a Horry County higher education commissioner serve on Conway’s zoning appeals board in 2006?

Plain-English summary

In 2006, the South Carolina Attorney General concluded that a Horry County Higher Education Commission member could not also serve on the City of Conway Zoning Board of Appeals. It treated both positions as public offices under the state constitution's dual office holding provision. The education commission exercised public powers, while a zoning appeals board heard and decided appeals and variances under land-use law.

The opinion also pointed to a statute barring local zoning appeals board members from holding another public office or position in the municipality or county. It believed that rule would independently apply if the higher education commissioner was a county officer or employee, as the office thought likely. The requester also asked about the Ethics Reform Act; the Attorney General directed that separate question to the State Ethics Commission rather than deciding it.

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: Did the opinion count the higher education commission seat as a public office?
A: Yes. It relied on an earlier opinion about that commission's statutory powers.

Q: Why was the zoning appeals board seat an office?
A: The opinion pointed to the board's statutory authority to hear appeals and grant variances, which it treated as an exercise of sovereign power.

Q: Was there another restriction besides the constitutional dual office rule?
A: The opinion believed the zoning board statute would also bar service if the commission position counted as a county office or job.

Q: Did the Attorney General decide the Ethics Reform Act question?
A: No. It referred interpretation of that Act to the State Ethics Commission.

Background and statutory framework

The opinion reviewed prior analyses of the higher education commission and municipal zoning appeals boards, then applied the constitutional two-office ban. It separately considered the statutory restriction on holding another public office or position while sitting on a zoning appeals board. Both paths led the office to reject simultaneous service on the facts presented, while ethics compliance remained outside its answer.

Citations and references

The original opinion quotes the dual office provision and the zoning appeals board statutes in the South Carolina Code as they stood in 2006.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-2-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06aug2burroughs.pdf

Original opinion text

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HENRY McMAs'raR
ATroRNEY GENEJlAL

August 2, 2006

Mr. Joseph 0 . Burroughs
Post Office Box 1244
Conway, South carolina 29528

Dear Mr. Burroughs:
We received your letter inquiring as to whether you may serve simultaneously as a member of the Horry County Higher Education Commission and on the City of Conway Zoning Board of Appeals. You ask whether serving in these positions constitutes "dual office holding and would therefore be prohibited under the State Constitution or Ethics Reform Act or any other such statutory vehicle.'' Law/Analysis

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Article XVII, section IA ofthe South Carolina Constitution (Supp. 2005) prohibits a person from holding "two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public.,, In order 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, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position's 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, 6Z (1980).

In an opinion dated March 16, 1999, we addressed whether service on the Horry County Higher Education Commission is an office for dual office holding purposes. Op. S.C. Atty. Gen., March 16, 1999. In that opinion we stated as follows: The Horry County Higher Education Commission (the "Commission") was created by Act No. 114, 1959 Acts and Joint Resolutions, as amended. The Commission was empowered to enter into contracts with institutions of higher learning to operate a school or schools of higher learning in Horry County. Powers and duties are specified in Section 3 of Act 131 of 1963 and include the powers to

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• PosrOma! Box 11549 • COLUMBIA, SC mll-1549 • Tus•«>NE 8(13-734-3970 • F•c.<OM" e 11111.m.m1

Mr. Burroughs
Page2
August 2, 2006

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sue and be sued, to adopt and use a corporate seal, to adopt rules and
regulations, to enter into contracts and leases, to acquire real and
personal property, and so forth. Prior opinions of this Office have
consistently held that powers such as these clearly involve an exercise
ofsomeportionofthe State's sovereignty. See, e.g., Ops. Atty. Gen.,
January 27, 1976; January 9, 1992; and December 14, 1995.
Moreover, by an opinion of this Office dated May 28, 1959,
"[mJembers ... of the Horry County Higher Education Commission
are officers and are, therefore, subject to the dual office holding
provision of our State Constitution." {Emphasis added.)
Id. We concluded members ofthe Horry County Higher Education Commission are officers for dual
office holding purposes. In keeping with this determination, we must only determine whether or
not service on the City of Conway Zoning Board of Appeals also is an office for dual office holding
purposes.
Although we have yet to address whether membership on the City of Conway Zoning Board
of Appeals in particular is an office for dual office holding purposes, in numerous opinions we
considered whether members of various municipal zoning appeals boards are officers. In those
opinions, we concluded such positions are offices for dual office holding purposes. See Op. S.C.
Atty. Gen., June 8, 2000 {citing Ops. S.C. Atty. Gen., March 16, 1999 {City of North Myrtle Beach
Zoning Appeals Board); January 27, 1976 {Georgetown County Zoning Appeals Board); May 2,
1977 {City ofGreenville Zoning Appeals Board)). In our March 16, 1999 opinion regarding the City
of North Myrtle Beach Board of Zoning Appeals, we noted in earlier opinions, "we held that the
power to hear and decide appeals made by citizens asking for special exceptions to certain zoning
requirements involved an exercise of some part of the State's sovereign power." Op. S.C. Atty.
Gen., March 16, 1999 {citing Ops. S.C. Atty. Gen., January 27, 1976; May 2, 1977).

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We agree with this conclusion based on our review of the provisions of the South Carolina
Code pertaining to local boards of zoning appeals found in chapter 29 of title 6. These statutes
provide for the creation of local boards of zoning appeals, their members, the members' term of
service, and the members' compensation. S.C. Code Ann. § 6-29-780 {2004). Furthermore, these
statues set forth the powers of these boards, which include hearing and deciding appeals related to
the enforcement of zoning ordinances and granting zoning variances. S.C. Code Ann. § 6-29-800
(2004). As we concluded in a prior opinion reviewing the predecessor to these provisions:
The discharge of the duties as described in the statute would be
quasi-judicial and would involve an exercise of sovereign power. It
is the opinion of this Office that a member of the, if the board was
created pursuant to Section 6-7-740, would most probably hold an
office for dual office holding purposes.

Mr. Burroughs
Page 3
August 2, 2006
Based on our review of the statutes governing local boards of zoning appeals and our previous
opinions, we find a position on the City of Conway Zoning Board of Appeals is an office for dual
office holding purposes.

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Both service on the Horry County Higher Education Commission and on the City of Conway
Zoning Board of Appeals are offices for dual office holding purposes. Therefore, pursuant to article
XVII, section 1A ofthe South Carolina Constitution, you are prohibited from simultaneously holding
these positions. Furthermore, we also find it pertinent to note section 6-29-780 of the South Carolina
Code, describing membership on a local board ofzoning appeals, states: "None ofthe members shall
hold any other public office or position in the municipality or county." Thus, in addition to the
constitutional prohibition, as we previously concluded in regard to section 6-29-780: "In our view,
the General Assembly must have intended to disqualify two different categories of individuals from
service on zoning boards of appeals or adjustments: county or municipal officers and employees."
Op. S.C. Atty. Gen., April 16, 1991. See also, Op. S.C. Atty. Gen., May 22, 2001. Presuming a
member of the Horry County Higher Education Commission is considered a county employee or
officer, which we believe he or she would be, this provision also prohibits you from serving both on
the Horry County Higher Education Commission and on the City of Conway Zoning Board of
Appeals.
As for your additional request that we provide information as to whether your service in both
positions is prohibited under the Ethics Reform Act, we suggest you contact the State Ethic's
Commission. The State Ethic's Commission is specifically granted the authority to interpret the
Ethics Reform Act.
Very truly yours,

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Cydney M1iling

Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General