Can a South Carolina mayor also serve on a county planning commission?

Plain-English summary

The South Carolina Attorney General concluded that a mayor could not be appointed to a county planning commission while remaining mayor. The opinion viewed both roles as offices of “honor or profit” under the state constitution. It described this as the likely result a court would reach, rather than a binding court ruling.

The opinion explained that a public office entails continuing duties involving some exercise of the state's sovereign power. It relied on earlier AG opinions treating the mayor's office and planning commission membership as public offices. It also stated the general exception for a second office held ex officio, by virtue of holding the first office.

Currency note

This opinion was issued in 2013. 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: Could a mayor accept a separate county planning commission appointment? A: The AG's 2013 answer was no. It reasoned that both positions likely qualified as public offices for the constitutional dual-office prohibition.

Q: Does planning commission membership count as a public office? A: The opinion said yes for this analysis. It pointed to the commission's statutory powers, qualifications, and duties, and to earlier AG opinions reaching the same result.

Q: What did the opinion say would happen if someone took the second office? A: Citing an earlier AG opinion, it said the officeholder would forfeit the first office upon taking the second. The opinion also stated a general exception for an office held ex officio.

Background and statutory framework

Lancaster County's administrator asked whether a mayor could be appointed to a county planning commission. The opinion quoted the South Carolina Constitution's prohibition on simultaneously holding two offices of honor or profit, with stated exceptions. It applied the continuing-sovereign-power test for public office and noted that S.C. Code § 6-29-320 authorizes a county council to create a county planning commission. The opinion expressly left any definitive resolution to a court or the legislature.

Citations and references

The opinion cites S.C. Code § 6-29-320 and State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980), in explaining the planning commission's status and the public-office test.

Official title

Asking, may a mayor be appointed to a county planning commission without violating the dual office holding prohibition of the South Carolina Constitution?

Requester

Mr. Steve Willis, Lancaster County Administrator

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-12-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/willis-s-os-9647-12-12-13-dual-office-holding.pdf

Original opinion text

ALAN WILSON
A'ITORNEY GENERAL

December 12, 2013

Mr. Steve Willis
Lancaster County Administrator
P. 0. Box 1809
Lancaster, South Carolina 29721
Dear Mr. Willis:
Attorney General Alan Wilson has referred your letter of July 31, 2013 to the Opinions section for a response. The following is our understanding of your question and the opinion of this Office concerning the issue based on that understanding. Issue: May a mayor be appointed to a county planning commission without violating the dual office holding prohibition of the South Carolina Constitution? Short Answer: No, a mayor may not be appointed to a county planning commission because a member of a planning commission and a mayor would likely be found by a court to both be offices of "honor or profit." Law/Analysis: By way of background, Article VI, Section 3 and Article XVII, Section lA of the South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time ... ," with exceptfons specified for an officer in the militia, a member of a lawfully and regularly organized fire department, a constable, or a notary public. Article ill, Section 24 of the South Carolina Constitution specifically prohibits members of the General Assembly from holding any other office or position of trust or profit. For these provisions 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). The Sanders case states:

One 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. Conversely, one who merely performs the duties required of him by persons employing him under an express contract or othe1wise, though such persons be themselves public officers, and though the employment be in or about a public work or business, is a mere employee.

REMBERT

c. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 292ll-l549

• TELEPHONE 803-734-3970 • FACSIMILE 803-251-67R1

Mr. Willis
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December 12, 2013

Id. at 174, 763. Other relevant considerations include "whether the position was created by the legislature; whether qualifications for appointment are established; whether duties, tenure, salary, bond and oath are prescribed or required; [and] whether one occupying [the] position is representative of sovereign [power or duties]." State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) (citing State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970)). The only exception to dual office holding prohibition would be ifthe person holds the second office "ex officio." Op. S.C. Attv. Gen., 2012 WL 4459270 (September 19, 2012) (citing Ashmore v. Greater Greenville Sewer District, 211 S.C. 77, 92, 44 S.E.2d 88, 95 (1947)). In other words, if the person holds the second office by virtue of holding the first office. This Office has consistently opined the position of mayor is an "office of honor or profit" for dual office holding purposes. See, e.g., Op. S.C. Attv. Gen., 2012 WL 1154553 (March 27, 2012); 2005 WL 1383351 (May 6, 2005); 2002 WL 399636 (January 23, 2002); 1989 WL 406185 (September 21, 1989); 1983 WL 18200 (September 15, 1983); 1981 WL 158097 (September 29, 1981); 1980 WL 120787 (July 24, 1980); 1977 WL 36997 (December 16, 1977). This Office has also consistently opined a position on a planning commission is an "office of honor or profit" for dual office holding purposes. As this Office stated in a previous opinion: Title 6, Chapter 29, Article 1 of the South Carolina Code of Laws of 1976 governs the creation of local planning commissions. S.C. Code § 6-29-320 states that the "county council of each county may create a county planning commission." The powers, qualifications and duties of a local planning commission, as described in Article 1 makes it clear that members exercise some degree of sovereign power of the state, meaning that membership on the Planning Commission constitutes an office within the definition of the Sanders and Crenshaw cases, supra. See, S.C. Code §§ 6-29-340 6-29-380. On numerous occasions, this Office opined that a member of a county or municipal planning commission holds an office for purposes of dual office holding. See. Ops. S.C. Attv. Gen., November 27, 2007 (City of Mauldin Planning Commission); May 9, 2007 (Spartanburg Planning Commission); December 1, 2006 (Myrtle Beach Planning Commission); April 10, 2006 (Town of Bluffton Planning Commission); May 8, 2001 (Horry County Planning Commission); August 3, 2000 (Charleston County Planning Commission) (emphasis added). Op. S.C. Atty. Gen., 2011WL3346433 (July 19, 2011). Please note an officeholder may give up the first office to hold the second office, but if he takes the second office while in office, he forfeits the first office. His service in the first office while in dual offices would be de facto until that position is replaced. Op. S.C. Atty. Gen., 2012 WL 4459271 (September13, 2012) (citing Ops. S.C. Atty. Gen., July 28. 2003; July 13, 1995).

Conclusion: A mayor may not be appointed to a county planning commission because a member of a planning commission and a mayor would both likely be found by a court to be offices of "honor or profit" for dual office holding purposes. However, this Office is only issuing a legal opinion. Until a court or the legislature specifically addresses the issues presented in your letter, this is only an opinion on how this

Mr. Willis
Page 3
December 12, 2013

Office believes a court would interpret the law in the matter. If it is later determined otherwise or if you have any additional questions or issues, please let us know. Sincerely,

o~~, ·Jct~~
Anita Smith Fair
Assistant Attorney General
REVIEWED AND APPROVED BY:

~~

Robert D. Cook
Solicitor General