Could a Barnwell city council member also serve on the Barnwell County Hospital Board of Trustees?

Plain-English summary

In 2007, the South Carolina Attorney General concluded that a Barnwell city council member could not simultaneously serve on the Barnwell County Hospital Board of Trustees. Earlier AG opinions had treated city council service as public office. The AG found the hospital board also exercised governmental authority under its creating ordinance, including operating the hospital, setting rates, spending revenue, hiring staff, and adopting a budget.

Currency note

This opinion was issued in 2007. 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: Could the same person hold both positions?
A: The AG concluded that doing so violated the state constitution's dual-office prohibition because both positions counted as public offices.

Q: Why did the hospital board seat count as an office?
A: The opinion pointed to the board's formal creation, fixed terms, qualifications, compensation, and power to operate the county hospital and make public decisions.

Background and statutory framework

Article XVII, section 1A of the South Carolina Constitution barred holding two offices of honor or profit at once, subject to specified exceptions. The AG applied that rule to the city council seat and the hospital board as structured by the county ordinance. He relied on the board's governmental powers as well as its prescribed membership and terms.

Citations and references

Constitution: South Carolina Constitution, Article XVII, section 1A.

Local authority: Barnwell County ordinance dated September 26, 1988, as described in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-26-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/boulware-t-m-2-26-07-os-8332-dual-office-holding.pdf

Original opinion text

February 26, 2007

Thomas M. Boulware, Esquire
Brown, Jefferies & Boulware
Post Office Box 248
Barnwell, South Carolina 29812
Dear Mr. Boulware:
From your letter, we understand you represent the City of Barnwell. You informed us that a member of the Barnwell City Council “has been asked to consider an appointment to the Barnwell County Hospital Board of Trustees.” Thus, on behalf of the City of Barnwell, you ask “whether or not service and acceptance of an appointment to the Barnwell County Hospital Board of Trustees will create a dual office”? Law/Analysis Article XVII, section 1A of the South Carolina Constitution (Supp. 2005) prohibits a person from holding “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.” In order to contravene this provision, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position’s duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980). In numerous opinions, this Office opined that a position on a city or town council is an office for purposes of dual office holding. See, e.g., Ops. S.C. Atty. Gen., December 28, 2006; November 5, 2003; April 2, 1998. In fact, in an opinion issued on October 25, 1984, we opined that a position on the Barnwell City Council is an office. Op. S.C. Atty. Gen., October 25, 1984. Thus, we must

Mr. Boulware
Page 2
February 26, 2007
determine whether a position on the Barnwell County Hospital Board of Trustees is also an office. In 1984, we issued an opinion finding members of the Barnwell County Hospital and Nursing Home Board are officers for purposes of dual office holding. Op. S.C. Atty. Gen., September 6, 1984. We based our opinion on our examination of the enabling legislation passed by the Legislature establishing the Barnwell County Hospital and Nursing Home Board. Id. Since the issuance of that opinion, we understand the Barnwell County Council reestablished the body governing the operations of the hospital via an ordinance dated September 26, 1988. Attached to your request, you included a copy of that ordinance, which establishes the seven-member board now know as the Barnwell County Hospital Board of Trustees (the “Board”). According to the ordinance, members of the Board serve four-year terms and must be residents of Barnwell County. The ordinance specifies the Board shall include the hospital administrator, two members of the hospital’s medical staff, and four residents of Barnwell County appointed at large by the Barnwell County Council. The ordinance sets for the compensation of the Board’s members at $600.00 per year and allows reimbursement for reasonable expenses incurred in connection with the members’ service on the Board. Thus, the Board was established by statute, which sets forth the members’ terms of office, compensation, and qualifications. Accordingly, the ordinance indicates membership on the Board is likely an office. In addition, the ordinance contains an extensive list of powers and duties afforded to the members of the Board. These powers and duties include, but are not limited to, the authority to adopt bylaws; operate the hospital and its facilities; accept gifts, donations and devises; improve and maintain the hospital facilities; establish rates charged by the hospital; contract for equipment, supplies, and personal property used in the operation of the hospital; expend the proceeds derived from revenue generated by the hospital; sue and be sued; employ various personnel needed to operate the hospital; establish personnel policies; and adopt a budget to be approved by the Barnwell County Council. We believe these powers evidence the Board’s ability to exercise some sovereign power of the State. Based on our review of the ordinance establishing the Board, we believe membership on the Board constitutes and office for purposes of dual office holding. This conclusion is consistent with several other opinions of this Office finding membership on a county hospital board is an office for purposes of article XVII, section 1A of the South Carolina Constitution. See, e.g., Ops. S.C. Atty. Gen., June 1, 2005 (Bamberg County Hospital Board); April 20, 2004 (Abbeville County Memorial Hospital Board of Trustees); January 11, 1999 (Regional Medical Center of Orangeburg Board of Trustees);January 9, 1992 (Edgefield County Hospital Board); August 6, 1991 (Live Oaks Hospital Board of Commissioners).

Mr. Boulware
Page 3
February 26, 2007
Finding both membership on the Barnwell City Council and the Board to be offices for purposes of dual office holding, we conclude simultaneous service in both positions constitutes dual office holding in violation of article XVII, section 1A of the South Carolina Constitution. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General