Could Greenville County’s code enforcement administrator also sit on its redevelopment authority board?

Plain-English summary

A Greenville County code enforcement administrator asked whether he could also join the county redevelopment authority’s board. The Assistant AG concluded that the administrator’s power to administer ordinances, issue summonses, and represent the county in court made that position a public office. He said board members likely held a public office too because the authority could acquire property, contract, spend money, and sue or be sued. On that analysis, simultaneous service would violate Article XVII, Section IA’s dual-office restriction.

The requester also asked about a conflict of interest and the State Ethics Act. The author expressly declined to give an Ethics Act opinion because that subject fell within the State Ethics Commission’s jurisdiction, and recommended contacting it. His constitutional analysis was therefore not a ruling on the separate ethics question. The letter was informal.

Currency note

This opinion was issued in 1998. 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: How did the AG classify the code administrator role? A: He treated it as a public office because its described enforcement duties exercised governmental police power.

Q: How did he classify the redevelopment board seat? A: He said its members would likely be officeholders because the authority exercised governmental powers.

Q: Did the AG decide whether the arrangement violated the State Ethics Act? A: No. He said that issue belonged to the State Ethics Commission and recommended contacting it.

Background and statutory framework

The opinion applied Article XVII, Section IA’s two-office rule and the sovereign-power test. It cited Act No. 516of1969 for the redevelopment authority’s creation and powers. The distinct State Ethics Act question was expressly outside the office’s opinion authority.

Citations and references

Authority discussed: Act No. 516of1969; Article XVII, Section IA. Case cited: State v. Crenshaw.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-6-1998-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98jan6nomikos.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

January 6, 1998

Peter P. Nomikos, Code Enforcement Administrator
County of Greenville
County Square
301 University Ridge, Suite 4100
Greenville, South Carolina 29601-3665
Re:
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Informal Opinion

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Dear Mr. Nomikos:

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Attorney General Condon has forwarded your opinion request to me for reply. You have informed this Office that you are presently employed by the Greenville County Council as the Code Enforcement Administrator. You have filed an application with the Greenville County Council to be considered for membership on the Board of Directors of the Greenville County Redevelopment Authority (hereinafter the "Authority"). You have asked whether there would be a conflict of interest and/or violation of the State Ethics Act if you were to simultaneously serve in both positions. State law does not authorize this Office to issue an opinion upon any matter which is within the jurisdiction of the State Ethics Commission. Therefore, I would recommend contacting the Commission for an answer to your question. While this Office is not authorized to render an opinion on your State Ethics Act question, it appears the State Constitutional prohibitions against dual office holding may apply to the facts presented. Article XVII, Section IA 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. REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA. S.C. 29211-1549

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TELEPHONE:

803- 734-3970

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FACSIMILE: 803-253-6283

Mr. Nomikos
Page 2
January 6, 1998
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 previously concluded that a county code enforcement officer would be considered an office holder for dual office holding purposes. Op. Atty. Gen. dated April 9, 1997. While this opinion did not specifically address the position of Code Enforcement Administrator, your position appears to exercise many of the same powers as a code enforcement officer. Specifically, you state that your duties consists of interpreting, administering and enforcing the Greenville County Zoning Ordinance, Standard Housing Code, Environmental Ordinance, Sign Ordinance, Billboard Ordinance, Junkyard Ordinance, Bingo Ordinance, Fireworks Ordinance, and Adult Entertainment Ordinance. Further, you state that you have the authority to represent the county in court and issue a summons to cite a violation of a county ordinance. Based on the foregoing, it is apparent that in your position, you exercise one of the traditional sovereign powers of the State: police power. Accordingly, the position of Greenville County Code Enforcement Administrator would be considered an office for dual office holding purposes. In regards to a member of the Board of Directors of the Authority, this body was created by Act No. 516of1969. The Authority consists of five commissioners appointed by a majority of the county council. Among other things, the Authority has the power to purchase, obtain options upon, and acquire by gift, grant, bequest, devise or otherwise, any personal or real property. In addition, the Authority has the powers to contract, expend money and sue and be sued. As evidenced by the previously stated powers of the Authority, members of its Board of Directors appear to exercise some of the sovereign powers of the State. Therefore, a member of the Board of Directors of the Authority would likely be considered an office holder for dual office holding purposes. In conclusion, since the positions of Greenville County Code Enforcement Administrator and member of the Board of Directors of the Authority are both considered offices for dual office holding purposes, if an individual simultaneously serves as both, Article XVII, Section IA of the State Constitution would be violated. 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

Mr. Nomikos
Page 3
January 6, 1998
specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain

a_;;;Jurs,
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Paul M. Koch
Assistant Attorney General