Could a Beaufort County recycling board member also become a Lady’s Island-St. Helena fire commissioner?

Plain-English summary

A Beaufort County Solid Waste and Recycling Board member asked whether accepting appointment to the Lady's Island-St. Helena Fire District Commission would violate the state constitution's dual office holding rule. The AG treated the fire commission as a public office. It concluded that the recycling board's advisory role did not exercise enough sovereign power to make that membership a second covered office. On that constitutional question, concurrent service was permitted.

The opinion raised a separate Beaufort County ordinance barring council appointments to more than one county board, agency, or commission at a time. The AG expressly declined to decide how that ordinance applied to the proposed appointments and suggested consultation with county officials.

Currency note

This opinion was issued in 2004. 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 service on the recycling board count as a public office for the dual-office rule?
A: The AG said no for the board described. It found the board primarily advised county council rather than exercising sovereign power.

Q: Did the fire district commission count as a public office?
A: Yes. The AG treated that commission like other fire district boards previously classified as offices.

Q: Was the proposed dual service free of every local restriction?
A: The opinion did not decide that. It identified a Beaufort County dual-membership ordinance but declined to interpret its effect on the requested arrangement.

Background and statutory framework

The opinion applied the constitutional two-office test using Sanders v. Belue and State v. Crenshaw. It examined Section 62-66 and Section 62-68 of the county code, describing the recycling board's advisory duties, and separately noted Section 2-193(c)'s county board-membership limit. Its affirmative answer concerned the constitutional prohibition only.

Citations

• Section 62-66
• Section 62-68
• Section 2-193(c)
• Sanders v. Belue
• State v. Crenshaw

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-24-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04feb24bowers.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HmRv Mc:MAsTER
ATfORNEY GEN£R.AL

February 24, 2004

Mr" Gordon R. Bowers
Beaufort County Solid Waste and Recycling Board
46' Brickyard Point Road North
Beaufort, South Carolina 29907
Dear Mr. Bowers:
You have requested an advisory opinion from this Office concerning dual office holding. You have indicated that you serve as on the Beaufort County Solid Waste and Recycling Board, as a member appointed py the Beaufort County Council. You have provided a copy of the county ordinance that creates and governs the Board, Beaufort County Code Section 62-66, ~- You have inquired whether you may be appointed by the Governor as a commissioner for the Lady's Island-St. Helena Fire District without violating the dual office holding provisions of the State Constitution. Law/Analy~is Article XVII, Section 1A of the State Constitution provides that "no person may hold two offices of honor Or profit at the Same time ••• II With exceptions Specified for an Officer in the militia, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion ofthe sovereign power ofthe State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its duties or salary, or require qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).

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This Office has consistently advised that a position on one of the various district boards of fire control across the state would be considered an office for purposes of the dual office holding prohibition. See as representative ofthose numerous opinions: Ops. S.C. Attn. Gen., dated December 19, 2003 (commissioner for the Holly Springs Volunteer Fire District); January 19, 1994 (member ofCherokee Springs Board ofFire Control); September 18, 1986 (member of Chester County Board of.Fire Control); November 18, 1983 (member ofMonarch Fire Department Board ofTrustees); and November 30, I 963 (commissioner of the Converse Area Fire District). There appears to be no reason to treat any differently a commissioner of the Lady's Island-St. Helena Fire District. The exception for a "member of a lawfully and regularly organized fire department11 would not apply to a member of a fire district board. Therefore, I am of the opinion that a Lady's Island-St. Helena Fire District commissioner would also be considered an officer for dual office holding purposes.
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Mr. Gordon R. Bowers
Page2
February 24, 2004

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The question of whether a member of a Beaufort County Solid Waste and Recycling Board would be considered an office holder for dual office holding purposes is far less certain. We were unable to locate any prior opinion of this Office that addresses members of county waste and recycling boards in the context of dual office holding. This Office has held that a related position, a member of the South Carolina Recycling Market Development Council, is not an office holder. Op. S.C. Atty. Gen., dated June 16, 1992. There, we opined that although the question was a clo,se one, considering that the position was created and governed by statute and appointed by the Governor, the functions which the Council could perform were advisory only and likely did not entail sufficient exercise of the State's sovereign power to constitute an office. After reviewing the relevant Beaufort County ordinances which you have provided, it appears that the function of the Solid Waste and Recycling Board is similarly advisory only in nature. Neither the purpose statement of the Board, Section 62-66 of the Beaufort County Code, nor the powers and duties of the Board, enumerated in Section 62-68, indicate that the Board exercises any real sovereign power ofthe State. Sanders v. Belue, supra. The role of the Board is primarily to act as an advisor and consultant to the Beaufort County Council on matters of solid waste and recycling, so that Council may make decisions on those issues. Furthermore, the Board is created not by state statute, but by county ordinance to assist County Council in carrying out its statutorily-authorized management role over solid waste disposal and recycling efforts within Beaufort County. See S.C. Code Ann. Sections 4455-1010, -1210, for county authority over waste collection and disposal. Based upon a thorough review of these facts in light of the relevant case law, it is the opinion of this office that as a member of the Beaufort County Solid Waste and Recycling Board, you do not currently hold an office for purposes of dual office holding. Accordingly, we advise that you may serve concurrently as a commissioner for the Lady's Island-St. Helena Fire District without violating the dual office holding provisions of the State Constitution. While there does not appear to be any constitutional prohibition on the dual service that you seek, we would note that the Beaufort County Code, in Section 2-193(c), prohibits dual membership on county boards, agencies, and commissions. It stipulates that, "The council shall not appoint an individual to serve on more than one board, agency, or commission at the same time." We decline to speculate on whether this ordinance simply codifies the state dual office holding provisions, or provides a more restrictive rule on dual membership for Beaufort County than which is provided for by the state constitution. We would advise that you consult with County Council, or the County Attorney, to determine whether this ordinance would have any effect on your situation.

Robert D. Cook
Assistant Deputy Attorney General
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