Could a Pickens County airport commissioner also hold an elected city council seat?

Plain-English summary

Pickens County's attorney asked whether a county aeronautics commissioner could also be an elected city council member. The 2001 opinion said the two seats could not be held together under South Carolina's constitutional dual-office prohibition. The AG treated a city council seat as a public office based on earlier opinions and found the aeronautics commissioner's authority involved a portion of state sovereign power.

The letter relied on the commission's 1967 enabling act and earlier AG opinions about county airport commissions. It did not separately analyze the consequences of a particular person's election or appointment, though it noted that enclosed opinions discussed how the law cured dual office holding.

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.

Common questions

Q: Was an elected city council seat a public office?
A: The AG said yes, citing its prior opinions on municipal council service.

Q: Why was the aeronautics commission also an office?
A: The AG found its members had authority sufficient to exercise a portion of state sovereign power under the commission's enabling act.

Q: Did the AG allow one person to hold both positions?
A: No. It concluded that concurrent service would violate the state constitutional rule.

Background and statutory framework

The opinion applied the constitutional test requiring two public offices with continuing sovereign-power duties. It classified each of the two roles using prior AG opinions and the commission's enabling legislation.

Citations and references

• Sanders v. Belue
• State v. Crenshaw

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-17-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01jan-17-welmaker.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLIE CO N D O N
ATIO RN E Y GENERAL

January 17, 2001
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G. Edward Welmaker, Esquire
Pickens County Attorney
Post Office Box 899
Pickens, South Carolina 29671
Dear Mr. W elmaker:
By your letter of January 5, 2001, you have asked whether a dual office holding situation would exist if an individual were to serve simultaneously as a member of the Pickens County Aeronautics Commission and as an elected city council member. For the reasons set forth below, it is my opinion that concurrent service in these positions would violate the South Carolina Constitution ' s prohibition against dual office holding.

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Article XVII, Section IA of the South Carolina 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, a member of a lawfully and regularly organized fire department, constable, or a notary public. As concluded by Attorney General Daniel McLeod in an opinion dated April 26, 1977, "[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula." The South Carolina Supreme Court, though, has held that for this provision to be contravened, a person concurrently must hold two 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). "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." Id., 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes, or other authority, establish the position, prescribe its tenure, 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) .

REMHERT c. ~l':'l L''.,~Fl l.DIN<;

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POST OFHCE Box 11 549

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Cou; MBIA. S.C. 29211-1549

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T ELEPHONE: 803-734-3970

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F\CSl.\llLE: 803 -253-628.1

Mr. Welmaker
January 17, 200 I
Page 2
This Office has advised on numerous occasions that a member of a city council would be considered an officer for dual office holding purposes. See, Ops. Atty. Gen. dated April 2, 1998; May 8, 1997; March 20, 1995; and many others. Accordingly, having determined that city council members are office holders within the meaning of Art. XVII. Sec. IA, it is necessary, then, to address whether membership on the Pickens County Aeronautics Commission would likewise constitute an office. Once again, reference to this Office's earlier opinions are instructive. This Office has determined on at least four occasions that one who serves on a county airport commission would hold an office for dual office holding purposes. See, Ops. Atty. Gen. dated April 29, 1985; January 19, 1983; November 9, 1982; and August 22, 1975 (enclosed). Moreover, upon review of the legislation that created the Pickens County Aeronautics Commission, Act No. 184of1967, it appears that its members are vested with sufficient authority to exercise at least a portion of the State's sovereign power. Therefore, consistent with the reasoning and conclusions of these earlier rulings, it is my opinion that a member of the Pickens County Aeronautics Commission is an officer and could not simultaneously serve as a city council member without violating the dual office holding prohibitions of the State Constitution. Additionally, please note that the enclosed opinions also discuss how the law operates to cure a dual office holding situation. Thank you for contacting Attorney General Condon' s Office. I trust this information is responsive to your inquiry and that you will not hesitate to contact me ifl can be of further assistance. Sincerely yours,

Zeb C. Williams. III
Deputy Attorney General
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Enclosures