Could one person serve on the Irmo-Chapin Recreation Board and South Carolina’s Public Employee Benefit Authority board?

Plain-English summary

In 2014, the South Carolina Attorney General considered whether serving on the Irmo-Chapin Recreation Board and as a Public Employee Benefit Authority director would violate the state constitution's ban on holding two public offices at once. The office treated the recreation board seat as an office. It concluded that the PEBA director role, as analyzed in this opinion, was largely recommendatory and did not exercise the sovereign power needed to make it a second office for this rule.

The opinion revisited earlier advice that had called PEBA directors public officers. It said that advice had overlooked an enabling provision requiring approval of significant policy determinations by the State Budget and Control Board or its successor. Other investment activity also called for the State Treasurer's advice and approval. The office expressly overruled inconsistent earlier opinions to that extent.

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: Was the recreation board position considered a public office?
A: Yes. The opinion reaffirmed prior advice treating members of that commission as officers for dual office holding purposes.

Q: Why did the office reach a different answer for PEBA directors?
A: It read the governing provisions as leaving key policy decisions subject to other agencies' approval, making PEBA's role largely recommendatory rather than an independent exercise of sovereign power.

Q: Did the opinion leave older advice about PEBA intact?
A: No. It said earlier opinions that contradicted this conclusion or omitted those approval limits were overruled.

Background and legal framework

The state constitutional restriction required two offices exercising some state sovereign power. The office compared the boards' duties with that test. It gave particular weight to approval requirements for PEBA policy determinations and investments, which its earlier PEBA opinion had not fully considered.

Citations and references

The opinion discussed §9-4-45 of PEBA's enabling legislation and Section 8-23-30 concerning investment authority.

Official title

Regarding whether the simultaneous service as a member of the Irmo-Chapin Recreation Board and as a Director of the Public Employee Benefit Authority constitutes dual office holding in violation of the South Carolina Constitution.

Requester

Stephen R. Van Camp, General Counsel, Public Employee Benefit Authority.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-1-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/12/Van-Camp-S.-OS-9860-12-1-2014-Cook-00501544xD2C78.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

December 1, 2014

Stephen R. Van Camp

General Counsel

Public Employee Benefit Authority
Post Office Box 11960

Columbia, South Carolina 29211-1960

Dear Mr. Van Camp:

You seek our opinion as to whether the simultaneous service as a member of the Irmo-Chapin Recreation Board and as a Director of the Public Employee Benefit Authority (“PEBA”) constitutes dual office holding in violation of Art. XVII, §1A of the South Carolina Constitution. We conclude that such service does not constitute dual office holding.

Law/Analysis

Article XVII, Section 1A of the South Carolina Constitution provides that “[n]o person may hold 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.” For a violation of this provision to occur, an individual must hold two public offices which have duties “involving an exercise of some part of the sovereign power” of the State. Sanders v. Belue. 78 S.C. 171, 174, 58 S.E. 762, 763 (1907). A public officer is “[o]ne 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.” Id. at 58 S.E. at 762-763. Other relevant considerations include: “whether the position was created by the legislative; 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.” State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980).

There is little doubt that members of the Irmo-Chapin Recreation Commission are officers for dual office holding purposes. Indeed, Opinion No. 2715, 1969 WL 10714 (August 13, 1969) so concluded with respect to that particular body’s membership. [members of Irmo-Chapin Recreation Commission are officers for dual office holding purposes]. Such opinion is consistent with subsequent opinions which have found that members of local recreation commissions are public officers. See, Op. S.C. Atty. Gen., July 17, 1984, 1984 WL 249932 [“This office has concluded on numerous occasions that members of county recreation commissions hold an office for dual office holding purposes. . . .”]; Op. S.C. Atty. Gen., January 29, 1987, 1997 WL 87948 [*. . . members of [Charleston County Park and recreation Commission appear to be officers for dual office holding purposes. . . .”].

Remsert C. DENNIS BUILDING * Post OFFICE Box 11549 « Cocumaia, SC 29211-1549 « TELEPHONE 803-734-3970 + FACSIMILE 803-253-6723

Stephen R. Van Camp, General Counsel
Page 2
December 1, 2014

The real question here is whether Directors of the PEBA Board are also public officers for purposes of Article XVII, §1A. In an opinion dated September 13, 2013, 2012 WL 4459271, we concluded that Directors of PEBA are public officers for dual office holding purposes. We stated that “{iJn our opinion, a court would likely find that the statutory creation of the Board, its qualifications for appointment and salary, coupled with the explicit duties and power of the Board, which appear to include the exercise of a portion of the State’s sovereign power, meet the definition of an office for dual office holding purposes based upon the foregoing criterial enunciated by the Court in Sanders and Crenshaw.”

Notably, however, the 2013 opinion failed to consider §9-4-45 of PEBA’s enabling legislation. See §9-4-10 et. seq (Act No. 278 at 2012). Section 9-4-45 provides as follows:

(A) Policy determinations made by the South Carolina Public Benefit Authority are subject to approval by the State Budget and Control Board or its successor, by a majority vote of the board.

(B) For purposes of this section, policy determination means a determination by law required to be made by the South Carolina Public Benefit Authority in its administration of the Employee Insurance Program relating to coverage charges and premium increases, and in its administration of the Retirement Division, actuarial assumptions governing the retirement system and adjustments in employer and employee contributions.

Section 8-23-30 also authorizes the PEPA Board to “contract for purchases of otherwise procure fixed or variable, annuities, savings, mutual funds, insurance, or such other investments as the Board may approve for carrying out the objectives of the (“Deferred Compensation] Program

with the advice and approval of the State Treasurer.” (emphasis added). Again, the PEBA Board

serves in a recommendatory capacity with regard to such duties.

As we stated in an Opinion, dated February 26, 2003 “[cJonsistently, this Office has opined that where the duties of a particular position are advisory only, no office has been created for dual office holding purposes.” There, we referenced Op. No. 83-79 (October 4, 1983), which had concluded that:

... it is clear that the Committee is capable of no binding exercise of sovereign power. To the contrary, it functions are advisory only. This Office has consistently expressed the view that committees which function in a purely advisory capacity are not offices within the dual office holding provisions of the South Carolina Constitution. E.g. 1976 Op. Att. Gen. 200; 1975 Op. Atty. Gen, 195; unpublished Opinions dated: June 22, 1982; July 12, 1980; September 7, 1978.

See also, Op. S.C. Atty. Gen., February 23, 2012, 2012 WL 682076 [South Carolina Medical Disciplinary Commission Members, although they possess some characteristics of an office, do not hold an office because “. . . the Commission’s authority is limited to hearing formal complaints and making recommendations.”}.

As former Attorney General McLeod once stated, “[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula.” Op. S.C. Atty.

Stephen R. Van Camp, General Counsel
Page 3
December 1, 2014

Gen., April 26, 1979, 1977 WL 37320. There is no question that the PEBA Board possesses important administrative responsibilities in managing the Employee Insurance Program (“EIP”) and the Retirement Division [formerly of the Budget and Control Board]. However, as we have emphasized, administrative duties do not necessarily mean an exercise of sovereign power, particularly where the administrative duties are largely recommendatory. Op. S.C. Atty. Gen., May 6, 2008, 2008 WL 2324810. While PEBA’s duties regarding administration are indeed important, we believe that, because it must generally obtain approval from other agencies, such as the Budget and Control Board, its duties are largely recommendatory.

Conclusion

Based upon the foregoing analysis, it is our opinion that simultaneous service upon the Irmo- Chapin Recreation Board and as a Director on the PEBA Board does not constitute dual office holding. PEBA Board members primarily perform recommendatory duties, rather than any exercise of the State’s sovereign powers. To the extent prior opinions may contradict this conclusion or did not consider these factors, such opinions are overruled.

Sinégtely,
Robert D. Cook

Solicitor General