Could a South Carolina town council member also serve on the town planning commission?

Plain-English summary

In 2021, the South Carolina Attorney General concluded that the same person could not serve simultaneously as a town council member and a member of that town's planning commission. The opinion said each role counted as a public office for the state constitution's ban on holding two offices of honor or profit.

The opinion gave a separate statutory reason: the planning-commission provision prohibited a member from holding elected office in the municipality or county that appointed the commission member. It applied that rule to the town council and planning commission positions described in the request.

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: Did the opinion consider town council service a public office?
A: Yes. It relied on earlier AG opinions treating town or city council membership as an office for the constitutional dual-office rule.

Q: Was planning commission membership also an office?
A: Yes. The office said planning commissioners exercised part of the state's sovereign power and had repeatedly been treated as officeholders.

Q: Did a separate statute address the combination?
A: Yes. The opinion quoted a statute barring planning commission members from holding an elected public office in the appointing municipality or county.

Background and statutory framework

The opinion applied the South Carolina Constitution's dual-office clause and the statutory rules governing local planning commissions. It described the public-office test and cited prior opinions concerning council and planning-commission posts. The statutory bar on commission members holding elected local office independently supported its conclusion.

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-22-2021-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2021/02/02500211.pdf

Original opinion text

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Alan Wilson
Attorney General

February 22, 2021

Henry M. Laye, III

Board of Voter Registration and Elections of Spartanburg County PO Box 1287

Spartanburg, SC 29304-1287
Dear Mr. Laye:

You are requesting an opinion from this Office regarding whether it would constitute dual office holding for an individual to serve as both a town council member and on the town's 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, Rembert C. Dennis Building

.

Post Office 3ox 11549

• Columbia, SC 2921 1-1549

• Telephone 803-734-3970

• Facsimile 803-253-6283

Henry M. Laye, III
Page 2

February 22, 2021

316 (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). 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 determined that a town council member holds an office for dual office holding

purposes. See Op. S.C. Attv. Gen.. 2013 WL 5291571 (Sept. 9, 2013) ("[t]his Office has advised on numerous occasions that a member of a town or city council holds an office for purposes of the constitutional prohibition against dual office holding.") 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."1
qualifications

and

duties

of

a

The powers,
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 - 6-29380. 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
1 S.C. Code § 6-29-320 also states that the "city council of each municipality may create a municipal planning commission."

Henry M. Laye, III
Page 3
February 22, 2021

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. Attv. Gen.. 2013 WL 6831 1 1 1 (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. § 6-29-3 50(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 a town council member and on the town's

planning commission.

Sincerely,

Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General