Could Beaufort County’s clerk of court also serve on the Technical College of the Lowcountry commission?

Plain-English summary

In 2020, the South Carolina Attorney General concluded that Beaufort County's clerk of court could not simultaneously serve on the Technical College of the Lowcountry Area Commission. The state constitution barred one person from holding two offices of honor or profit at the same time, and the office relied on earlier opinions classifying each position as a public office.

The opinion applied the public-office test involving continuing duties and the exercise of sovereign power. It did not undertake a fresh detailed review of the college commission's duties; its conclusion rested on the cited earlier AG opinions about those specific positions.

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 the opinion count a county clerk of court as a public officer?
A: Yes. It cited earlier AG opinions classifying the clerk position as an office for dual-office purposes.

Q: How did it classify the technical-college area commission seat?
A: The office cited a prior opinion holding that service on the Technical College of the Lowcountry Area Commission was a public office.

Q: Could the same person hold both posts under the opinion?
A: No. Because it treated both positions as offices, the AG said simultaneous service violated the constitutional prohibition.

Background and statutory framework

The opinion applied South Carolina's constitutional ban on dual office holding to a county clerk and a technical-college area commissioner. It relied on the office's earlier position-specific opinions and the judicial test for what constitutes a public office.

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-3-2020/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/12/02443268.pdf

Original opinion text

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Alan Wilson
Attorney General

December 3, 2020

The Honorable Jerri Ann Roseneau

Beaufort County Clerk of Court
PO Drawer 1 128
Beaufort, SC 29901-1128
Dear Ms. Roseneau:

You have requested an opinion of this Office regarding whether it would constitute dual office holding for you to serve as both Beaufort County Clerk of Court and as a board member for the Technical College of the Lowcountry Area Commission. 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

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post Office Box 11549

. Columbia, SC 2921 1-1549

. Telephone 803-734-3970

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Facsimile 803-253-62S3

The Honorable Jerri Ann Roseneau
Page 2
December 3, 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)).

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Our Office has previously advised that a county clerk of court holds an office for dual office holding purposes. See Ops. S.C. Attv. Gen., 2008 WL 903966 (Mar. 6, 2008); 1993 WL 738588 (Mar. 3, 1993). We have also concluded that service on the Area Commission of the Technical

College of the Lowcountry would constitute a public office. 599272 (August 6, 1990).

See Op. S.C. Attv. Gen,. 1990 WL

Therefore, it is our opinion that serving in both positions would

violate the constitutional prohibition against dual office holding. CONCLUSION

Based on our prior opinions, we believe that serving as both Beaufort County Clerk of Court and as a member of the Technical College of the Lowcountry Area Commission would violate the

constitutional prohibition against dual office holding.
Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

(

Robert D. Cook
Solicitor General