Could a South Carolina county council chair also serve on a DNR legal advisory board?

Plain-English summary

A Hampton County council chair asked whether he could also sit on a legal advisory board for South Carolina's Department of Natural Resources. The February 2001 informal opinion said the dual office holding rule did not bar the combination. County council service was a public office, but membership on the described advisory board was not.

The boards created by Executive Order No. 89-09 served as liaisons and assisted the wildlife and marine resources commission when asked. The AG found no sovereign power in those duties. Members had four year terms and per diem expenses, but no oath, salary, or specified qualifications; those features supported the conclusion that they were advisers rather than officeholders.

Currency note

This opinion was issued in 2001. 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.

Historical summary

County council members

The opinion relied on earlier AG conclusions that county council members held public office. The outcome therefore turned on the character of the DNR board seat.

DNR advisory appointees

The letter treated the board's liaison and requested assistance functions as purely advisory, without independent sovereign authority.

Common questions

Was the DNR advisory seat another public office?
A: The AG said no. Its duties were advisory and did not exercise state sovereign power.

Did a four year appointment alone make it an office?
A: No. The opinion considered the term but emphasized the absence of sovereign power, an oath, salary, and qualifications.

Could the Hampton County chair hold both described roles?
A: The AG concluded that doing so did not contravene the constitutional dual office rule.

Background and statutory framework

Article XVII barred simultaneous holding of two public offices. The opinion applied the sovereign power test to the boards established by Executive Order No. 89-09 and found only advisory functions.

Citations and references

• The AG said the boards had duties and powers “purely advisory in nature.”

Official title

Concerning whether a dual office holding situation exists if a Hampton County Council Chairman simultaneously serves as a member of the Department of Natural Resources Advisory Board.

Requester

Lee S. Bowers, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-27-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01feb-27-bowers.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATIORNEY GENERAL

February 27, 2001
Lee S. Bowers, Esquire
Post Office Box 191
Bluffton, South Carolina 29910
RE: Informal Opinion
Dear Mr. Bowers:
By your letter of February 20, 2001, you have requested an opinion of this Office concerning dual office holding. Specifically you ask if you may serve simultaneously as the Chairman of the Hampton County Council and on a legal advisory board for the Department of Natural Resources. Article XVII, Section 1A of the State Constitution provides that "no person may hold two offices of honor or profit at the same time .. ., "' 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 public offices which have duties involving an exercise of some portion of the sovereign power of the 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). This Office has advised on numerous occasions that a member of a county council would hold an office for dual office holding purposes. See OPS. ATTY. GEN. July 26, 1999; June 27, 1997; December 7, 1994; August 20, 1985; June 26, 1984. Thus, it must be determined whether a member of a legal advisory board for the Department of Natural Resources would also hold an office. Three legal advisory boards were created by Executive Order of the Governor, No. 89-09. The boards consist of ten members, six appointed by the Governor and four appointed by the Wildlife and Marine Resources Commission. The terms of the members are for four years. The members take no oath of office, nor are paid, but are compensated for per diem expenses. Finally, the purpose of the boards is to "serve as liaison between the wildlife and marine resources commission and the representative of both the public at large and the business and industry interests involved." EXECUTIVE ORDER No. 89-09. The boards also "assist the Commission as requested in

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POST OFFICE Box 11549

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Cou:MBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 80.-25J-628J

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Mr. Bowers
February 27, 2001
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determining appropriate commission policies relating to their respective areas of concern and to the Commission overall." Id. The boards appear to have no other duties and powers than those purely advisory in nature. Many of the attributes usually found in an office, most notably the exercise of sovereign power, are absent as to members of the advisory boards. Although the members serve for a specified term, the order authorizes no salary, oath, or qualifications for service. This Office has concluded on numerous occasions that members of advisory commissions would not be considered office holders. See OPS. ATTY. GEN. December 3, 1991 (Recreation Committee); May 9, 1989 (Indigent Care Advisory Board); May 15, 1989 (Work Support Advisory Council); and others. Consistent with these prior opinions, we also conclude that a member of one of the legal advisory boards established by Executive Order No. 89-09 would not be an officer for dual office holding purposes. Thus, service on both a legal advisory board for the Department of Natural Resources and the Hampton County Council would not contravene the dual office holding prohibitions in the State Constitution. This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I remain

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Very truly yours,

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Susannah Cole
Assistant Attorney General