Could a Bamberg County coroner also sit on the county planning commission?

Plain-English summary

In 2021, the South Carolina Attorney General concluded that one person could not serve at the same time as Bamberg County coroner and a member of its planning commission. The office considered both positions public offices under the state constitution's dual-office prohibition.

The opinion also quoted a planning statute barring commission members from holding elected public office in the county or municipality from which they were appointed. The elected coroner position fit that prohibition in the factual situation presented.

Currency note

This opinion was issued in 2021. 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 a county coroner a public office for this analysis?
A: Yes. The office cited its earlier conclusion that coroners and deputy coroners held offices for dual-office purposes.

Q: Did planning commissioners also hold public office?
A: Yes. The office relied on planning commissioners' exercise of some sovereign power and on its prior planning-commission opinions.

Q: Did a statute independently bar this pairing?
A: Yes. The opinion quoted the statutory prohibition on a planning commissioner holding elected office in the appointing county.

Background and statutory framework

The opinion applied the state constitutional ban on simultaneously holding two offices of honor or profit and the planning-commission statute's separate bar on elected local office. It described the public-office test as involving continuing duties that exercise some of the state's sovereign power.

Citations and references

The cited legal authorities and the office's conclusions appear in the linked official opinion. Its analysis addressed the question presented in 2021.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-22-2021/
• Original PDF: https://www.scag.gov/wp-content/uploads/2021/02/02500208.pdf

Original opinion text

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Alan Wilson
Attorney General

February 22, 2021

Richard B. Ness, Esq.
Ness & Jett, LLC
PO Box 909
Bamberg, SC 29003

Dear Mr. Ness:

You are requesting an opinion from this Office regarding whether it would constitute dual office holding for an individual to serve as both Bamberg County Coroner and on the Bamberg County

Planning 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 Rembert C. Dennis Building

. Post Office 3ox 11549

• Columbia, SC 2921 1-1549

• Telephone 803-734-3970

• Facsimile 803-253-6283

Richard B. Ness, Esq.
Page 2

February 22, 2021

(1943). "The powers conferred and the duties to be discharged 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). Seears-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)). In a 2012 opinion, our Office noted that "[w]e have concluded on numerous occasions that

a coroner or deputy coroner holds an office for purposes of dual office holding." Op. S.C. Attv. Gen..

2012 WL 4836949 (October 2, 2012) (internal citations omitted). We have also consistently opined that a position on a planning commission is an "office of honor or profit."

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,

member

of a

this

county

or

Office

opined

municipal

that

a

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

Richard B. Ness, Esq.
Page 3

February 22, 2021

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. Attv. Gen,. 2013 WL 683 1111 (December 12, 2013) (quoting Op. S.C. Attv. Gen.. 201 1

WL 3346433 (July 19, 2011). Additionally, the South Carolina Code provides that "[n]o member of a planning commission may hold an elected public office in the municipality or

county from which appointed." S.C. Code Ann. § 6-29-350(B) (1976 Code, as amended). CONCLUSION

It is our opinion that it would be a violation of constitutional and statutory provisions prohibiting

dual office holding for an individual to serve as both Bamberg County Coroner and on the Bamberg County Planning Commission.

Sincerely,

?

Elinor V. Lister

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook

Solicitor General