Could a Richland County council member also serve on the South Carolina First Steps board?

Plain-English summary

In 2020, the South Carolina Attorney General concluded that simultaneous service on Richland County Council and the South Carolina First Steps to School Readiness Board of Trustees did not violate the constitutional ban on holding two public offices. It treated county council membership as an office but described First Steps as a nonprofit corporation whose trustees did not hold an office for dual-office purposes.

The office distinguished the statewide trustees from county First Steps partnership boards, although earlier opinions had reached a similar result for those county nonprofit boards. It did not resolve any conflict-of-interest issue and suggested contacting the State Ethics Commission about that separate question.

Currency note

This opinion was issued in 2020. 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 county council service count as public office?
A: Yes. The AG cited its earlier opinions treating a county council seat as an office under the state constitution.

Q: Why did First Steps trusteeship not count as a second office?
A: The opinion classified the trustees as directors of a nonprofit corporation and relied on prior opinions that such board service did not constitute public office.

Q: Did the opinion decide whether there was an ethics conflict?
A: No. It suggested checking that separate issue with the State Ethics Commission.

Background and statutory framework

The opinion compared the constitutional public-office test with the statutory creation and nonprofit status of the First Steps board. It also noted a separate statutory restriction on county council members holding another office of honor or profit during their elected terms.

Citations and references

The legal authorities and conclusion summarized above appear in the linked official opinion, issued in 2020.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-21-2020/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/12/02455580.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

December 21, 2020

Jesica Johnson Mackey

10120 Two Notch Road, Unit 184
Columbia, SC 29223
Dear Ms. Mackey:

You have requested an opinion from this Office regarding whether it would constitute dual office holding for you to serve as both a Richland County Councilmember and as a board member for South Carolina First Steps (First Steps to School Readiness Board of Trustees). LAW/ANALYSIS

Dual office holding is prohibited by the South Carolina Constitution, which states:
[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.... The limitation above set forth does not prohibit any officeholder from being a delegate to a constitutional convention. S.C. Const, art. XVII § 1 A.

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is: "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." Sanders v. Belue. 78 S.C. 171, 174, 58 S.E. 762, 763 (1907), "In considering whether a particular position is an office in

the constitutional sense, it must be demonstrated that "[t]he power of appointment comes from the state, the authority is derived from the law, and the duties are exercised for the benefit of the public." Willis v. Aiken County, 203 S.C. 96, 103 26 S.E. 2d 313, 316 (1943). "The powers conferred and the duties to be discharged Rembert C. Dennis Building

»

Post Office Box 1 1 549

« Columbia, SC 2921 1-1549

. Telephone 803-734-3970

» Facsimile S03-253-62S3

Jesica Johnson Mackey
Page 2

December 21, 2020

with regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority ..."63C Am Jur.2d Public Officers and Employees § 5 (2009). Segars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E.2d 453 (2010). Other relevant considerations for an office are:

whether the position was created by the legislature; 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. Op. S.C. Attv. Gen.. 2013 WL 3243063 (June 17, 2013) (quoting State v. Crenshaw. 274 S.C. 475, 478,266 S.E.2d 61, 62 (1980)).

Our Office has previously advised that a county council member holds an office for dual office

holding purposes. See Op. S.C. Attv. Gen.. 2017 WL 1180535 (Mar. 20, 2017) ("This Office has issued several opinions stating that the position of county council member is an office within

the meaning of Article XVII, § 1 A of the South Carolina Constitution.")1 We also determined in a June 21, 2000 opinion that a person serving on a County First Steps Partnership Board did not hold an office:

[C]ounty First Steps Partnership Boards are established under S.C. Code Ann. § 59-152-10 et seq. Pursuant to Section 59-152-70(E), these boards must be private nonprofit corporations organized under Section 501(c)(3) of the Internal Revenue Code. This Office has previously concluded that while a close question, members of a board of directors of a private nonprofit corporation do not hold an

office for dual office holding purposes. Ops. Attv. Gen, dated March 17, 1995, October 18, 1988, and November 10, 1983 . . . Op. S.C. Attv. Gen.. 2000 WL 1205945 (June 21, 2000).

However, you are asking about membership on the South Carolina First Steps to School Readiness Board of Trustees, which is provided for in S.C. Code Ann. § 63-11-1710 et seq. Section 63-1 1-1710 provides:

There is established the South Carolina First Steps to School Readiness Board of Trustees, an eleemosynary corporation, which shall oversee the South Carolina First Steps to School Readiness 1 The South Carolina Code also prohibits county council members from holding any other office of honor or profit during their elected terms. S.C. Code Ann. § 4-9-100 (1976 Code, as amended).

Jesica Johnson Mackey
Page 3

December 21, 2020

initiative, a broad range of innovative early childhood development and education, family support, health services, and prevention efforts to meet critical needs of South Carolina's children through the awarding of grants to partnerships at the county level as provided for in Section 59-152-90 . . . S.C. Code Ann. § 63-1 1-1710 (1976 Code, as amended) (emphasis added). According to the South Carolina Secretary of State's website, it is registered as a nonprofit corporation. See

https://businessfilings.sc.gov/BusinessFiling/Entity/Profile/d9e2f9cb-4ffd-4acd-81f6-

c477e5daa489.

We therefore believe, similarly to our June 21, 2000 opinion, that because the

South Carolina First Steps to School Readiness Board of Trustees is a nonprofit corporation, a member of its board of directors does not hold an office for dual office holding purposes. CONCLUSION

Based on our prior opinions, we believe that serving as both a member of the Richland County Council and on the South Carolina First Steps to School Readiness Board of Trustees would not

violate the constitutional prohibition against dual office holding. Ilowever, you may wish to contact the State Ethics Commission to confirm that there are not any conflicts of interest. Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General