Could someone serve on both Kline Town Council and the Barnwell County Museum board in 2016?

Plain-English summary

The chairman of the Barnwell County Museum asked whether service on Kline Town Council and the Barnwell County Museum and Historical Board violated South Carolina's dual office holding prohibition. The 2016 AG predicted that a court would treat the council seat as an office of honor or profit. For the museum board seat, it supplied the legal criteria and invited the requester to provide more information if those criteria did not resolve the question.

The opinion described the factors used to identify an office of honor or profit: how the position was created, qualifications, prescribed duties and tenure, and whether it exercised sovereign authority. It discussed earlier opinions on other museum boards and quoted a 1989 opinion that had lacked enough information about Barnwell's board at that time. The office invited additional information and also mentioned possible common law and ethics issues separate from the constitutional question.

Currency note

This opinion was issued in 2016. 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 a Kline Town Council seat an office for dual office holding purposes?
A: Yes. The AG predicted a court would treat it as an office of honor or profit.

Q: Did the opinion say the Barnwell museum board was also a public office?
A: No. The 2016 letter gave factors for evaluating the seat and invited more information if the requester could not reach a determination.

Q: Did decisions about other museum boards decide this case?
A: No. The opinion discussed them as comparisons and directed the requester to apply the public-office criteria to Barnwell's board.

Background and statutory framework

South Carolina's constitutional prohibition concerned simultaneous holding of two offices of honor or profit. The opinion applied the established office criteria to the council seat, then supplied criteria for evaluating the museum board seat. It also referred possible ethics issues to the State Ethics Commission rather than deciding them itself.

Citations and references

• The AG wrote: “service on the Kline Town Council is an office of honor or profit.”
• It quoted a 1989 opinion saying the office then “did not have enough information on the Board to make a determination,” and invited the 2016 requester to send more information if needed.
• Source: South Carolina Attorney General, August 24, 2016.

Official title

On dual office holding.

Requester

Mr. H. Jerry Morris, Chairman, Barnwell County Museum.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-24-2016/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/08/Morris-J.-OS-10071-FINAL-Opinion-8-24-2016-FAIR-01092952xD2C78-01096618xD2C78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON

ATTORNEY GENERAL

August 24, 2016

Mr. H. Jerry Morris, Chairman
Barnwell County Museum

PO 422

Barnwell, SC 29812

Dear Mr. Morris:

Attorney General Alan Wilson has referred your letter dated August 10, 2016 to the Opinions section for a response. The following is this Office’s understanding of your question and our opinion based on that understanding.

Issue (as quoted from your letter):
Is ... service on the Kline Town Council and the Barnwell County Museum & Historical Board considered “dual office holding” under the Constitution of the State of South Carolina?

Law/Analysis:

As you mention in your letter, the South Carolina Constitution prohibits holding more than one office of honor or profit in this State at the same time. S.C. Const. Arts. 6 § 3; 17 § 1A; 3 § 24. This Office has answered many questions on dual office holding. Regarding dual office holding, this Office has previously opined that:

South Carolina follows the criteria in the Crenshaw case to determine if a position is an office of “honor or profit” for dual office holding purposes. The criteria in the Crenshaw case consist of four questions:

1) Was the position created by the General Assembly?

2) Are there established qualifications for appointment?

3) Are duties, tenure, salary, bond and oath required or prescribed?

4) Is the position representative of sovereign duties?
An office of “honor or profit” does not require an affirmative answer to all of the questions, nor is any one question conclusive to the determination. State v. Crenshaw, supra. Traditionally, sovereignty holds three powers: the power to tax, the power of eminent domain and the power to police. Op. S.C. Atty. Gen., 1996 WL 599391 (September 6, 1996) (citing Philadelphia Nat. Bank v. U.S. of America, 666 F.2d 834 (3rd Cir. 1981)).

Op. S.C. Att’y Gen., 2016 WL 3545857 (S.C.A.G. June 14, 2016). Moreover, this Office has previously opined that a member of a town council is an office of honor or profit. See, e.g., Op. S.C. Att’y Gen., 1960 WL 8129 (S.C.A.G. April 22, 1960); Richardson v. Town of Mt. Pleasant, 350 S.C. 291, 566 S.E.2d 523 (2002) (where it was stipulated in the case that a position on a town council was an office of honor or profit). Regarding a position on the Barnwell County Museum and Historical Board, our analysis would

ReMBeRT C. DENNIS BUILDING « POST OFFICE BOX 11549 « COLUMBIA, SC 29211-1549 © TELEPHONE 803-734-3970 « FACSIMILE 803-253-6283

Mr. H. Jerry Morris, Chairman
Page 2
August 24, 2016

rely on the questions in Crenshaw. Concerning a different museum board, this Office has previously opined that the Greenville County Museum Commission was an office for dual office holding purposes. See Op. S.C. Att’y Gen., 1980 WL 121167 (S.C.A.G. April 14, 1980).' The 1980 opinion regarding the Greenville County Museum Commission reached its conclusion based on the following: the Commission was created by act of the General Assembly, and its powers and duties include “the power to purchase, lease or otherwise, property of all kinds, to solicit and accept gifts, grants, donation, etc., to expend any funds in any manner to defray any costs incident to providing museum services and facilities.” Id. Regarding the South Carolina Museum Commission, this Office has previously opined that it would be an office of honor or profit. Op. S.C. Att’y Gen., 1983 WL 181818 (S.C.A.G. March 28, 1983). This Office has also previously stated regarding the Barnwell County Museum Board that at the time of the request we did not have enough information on the Board to make a determination. See Op. S.C. Att’y Gen., 1989 WL 508588 (S.C.A.G. September 25, 1989).” Thus, we encourage you to use the information provided to assist you in answering your question. However, if you are not able to determine whether a court would find the Barnwell County Museum & Historical Board is an office of honor or profit for dual office holding purposes, please send us more information, and we will further assist in helping you make a determination.

In addition to dual office holding concerns, we must further caution against violations of the common law master-servant principle. See, e.g., McMahan v. Jones, 94 S.C. 362, 77 S.E. 1022 (1913) (prohibiting one from holding two positions resulting in the same person to be both master and servant in service to the public). Thus, if County Council funds the Board or otherwise has control or supervision over the Board, the County Council member could not vote or otherwise exercise authority concerning the Board. Moreover, the South Carolina Ethics Commission has primary jurisdiction over the State Ethics Act, and we encourage you to consult them regarding any ethical issues holding the two positions may pose. S.C. Code Ann. § 8-13-320.

Conclusion:

We believe a court will find that service on the Kline Town Council is an office of honor or profit, and we trust the information provided herein will assist you in answering your question of whether service on the Barnwell County Museum and Historical Board is also an office of honor or profit. However, this Office is only issuing a legal opinion based on the current law at this time and the information as provided to us. Until a court or the General Assembly specifically addresses the issues presented in your letter, this is only an opinion on how this Office believes a court would interpret the law in the matter. Additionally, you may also petition the court for a declaratory judgment, as only a court of law can interpret statutes and make such determinations. See S.C. Code § 15-53-20. If you have any additional questions or issues, please let us know.

' Please also note that the Greenville County is or at least was at the time of the case and opinion, receiving taxpayer money for the operation of the museum. See John D. Hollingsworth on Wheels, Inc. v. Greenville County Treasurer, 276 S.C. 314, 278 S.E.2d 340 (1981).

? Please note there is also a judicial advisory opinion concluding that “a full-time magistrate judge may be a member of the Board of Trustees for a local museum and cultural center provided that the judge does not participate in fundraising/soliciting funds.” S.C. Adv. Comm. Std. Jud. Cond. Op. No. 13-2016, 2016 WL 4268978 (July 29, 2016). However, the judicial advisory opinion makes no mention of consideration of the dual office holding prohibition in the South Carolina Constitution. Id.

Mr. H. Jerry Morris, Chairman
Page 3
August 24, 2016

“Ot Tes Far

Anita S. Fair
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General