Could one person serve on Spartanburg County's library board and planning commission?

Plain-English summary

A person serving as treasurer of the Spartanburg County Library Board and as a member of the Spartanburg Planning Commission asked whether the combination violated South Carolina's dual-office rule. The Attorney General said in December 2002 that it most likely did. Earlier AG opinions had treated most county library boards and municipal planning commissions as public offices. The office lacked the specific law creating the Spartanburg library board, however, and said the answer could differ if that board had recommendatory duties only.

The opinion said the positions' lack of compensation did not control whether they were public offices. It also explained that when a person accepted a second covered office, the first became vacant by operation of law, although the person might serve as a de facto officer until a successor was selected. The AG applied that consequence conditionally to the described board seats and offered to review the library board's governing law if supplied.

Currency note

This opinion was issued in 2002. 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 AG give an unconditional answer about these two board seats? A: No. It said dual office holding was most likely, but a recommendatory-only library board could change the analysis.

Q: Did unpaid service avoid the dual-office rule?
A: No. The opinion said compensation was not the factor determining public-office status.

Q: What did the AG say would happen if both seats were offices? A: Accepting the planning commission seat would automatically vacate the earlier library seat, subject to the de facto officer rule described in the opinion.

Background and legal framework

The opinion used Sanders v. Belue and State v. Crenshaw for the public-office inquiry. It compared earlier AG views of county library boards and planning commissions, then reserved judgment if Spartanburg's library board had only advisory powers.

Citations and references

• Sanders v. Belue and State v. Crenshaw: tests for whether a board seat is a public office.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-10-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02dec-10-richardson.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATIORNEY GENERAL

December 10, 2002

Mr. Robert P. Richardson
643 Crystal Drive
Spartanburg, South Carolina 29302
Dear Mr. Richardson:
You advise that you currently sit on the Spartanburg County Library Board of Trustees as Treasurer. You also indicate that in 1998 you were appointed to the Spartanburg· Planning Commission. You wish to know ifthe simultaneous occupation of the two positions constitutes dual office holding for purposes of the South Carolina Constitution. It is our opinion that serving concurrently in the two positions would constitute dual office holding. Article XVII, Section 1A of the South Carolina 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, member of a lawfully and regularly organized fire department, constable, or 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). This Office has concluded on numerous occasions that a member of a county library board holds an office for dual office holding purposes. See, Op. Atty. Gen., November 1, 1995 (Charleston County Library Board); Op. Atty. Gen., October 23 , 1995 (Charleston County Library Board); Op. Atty. Gen., September 25 , 1989 (Barnwell County Library Board); Op. Atty. Gen., February 11, 1981 (Allendale County Library Board); Op. Atty. Gen., July 24, 1980 (Greenville County Library Board); Op. Atty. Gen., March 11, 1976 (Florence County Library Board). But see, Op. Atty. Gen., February 3, 1995 (since Beaufort County Library Board has only recommendatory duties, membership thereupon does not constitute an office). Thus, if the Spartanburg County Library Board is similar to most other library boards previously exan1ined by this Office, I would conclude that membership thereon would constitute an office for dual office holding purposes.

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Likewise, this Office has repeatedly found that membership on a municipal planning commission constitutes an office. Op. Atty. Gen., October 17, 2000; Op. Atty. Gen., February 8, 1983 (City of Conway Planning Commission); Op. Atty. Gen., April 5, 1990 (City of Florence REMBE~5· 1?J'NNIS BUILDING • POST 0FACE Box 11549 • COLUMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

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Mr. Richardson
Page 2
December 10, 2002

Planning Commission); Op. Atty. Gen., August 24, 1992 (City of Florence Planning Commission); Op. Atty. Gen., June 26, 1978 (City of Rock Hill Planning Commission); Op. Atty. Gen., March 29, 1982 (Town of Lexington Planning Commission). Based upon the information you have provided, it would appear that the two positions you have identified each constitute an office for dual office holding purposes. Thus, I am of the opinion that the situation you have described most likely would constitute dual office holding. The fact that neither position receives compensation is not a factor in whether the position constitutes an office. The only caveat to this conclusion is that if the duties of the Spartanburg County Library Board are recommendatory only (as with the Beaufort Library Board), a different conclusion may be found. If you wish to submit the governing law or ordinance creating the Library Board in Spartanburg County, I will be more than happy to consider it.

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When a dual officeholding situation occurs, the law operates automatically to "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section 1A of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties ifthe term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dove v. Kirkland, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S. C. 156 ( 1877). Furthermore, actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848). Thus, in a dual office holding situation - which this most probably is - upon assumption of the Planning Commission position, the law would automatically create a vacancy with respect to the Library Board position. Such would render the holder of the Library Board position a "de facto" rather than a "de jure" member. However, all actions taken by you as a member of the Library Board would be valid. If I can be of further assistance, please let me know.

Assistant Deputy Attorney General
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