Could an Oconee County school board member also sit on the county parks, recreation, and tourism commission?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that a member of the Oconee County School Board could also serve on the county Parks, Recreation and Tourism Commission without violating the state constitution's dual office holding rule. School board membership was a public office. The parks commission created by Oconee County Ordinance No. 2011-12, however, was advisory and did not exercise state sovereign power, so its members did not hold a second public office for that rule.

The ordinance gave the parks commission set terms, compensation, and specified duties. The AG acknowledged those as possible signs of an office, but emphasized that the commission advised county council and that recommendations involving spending required council review and approval. The opinion distinguished an earlier Charleston County parks commission whose members held more direct operating and financing powers.

Currency note

This opinion was issued in 2011. 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

Could one person hold both Oconee County positions?
A: Yes. The AG said the advisory parks commission seat did not count as a second public office, so the two roles did not violate the dual office rule.

Was school board membership itself a public office?
A: Yes. The AG followed its earlier opinions treating county school board members as officers for this constitutional provision.

Why did the parks commission seat remain advisory despite set terms and pay? A: The AG said those features could indicate an office, but the commission's duties did not include an exercise of sovereign power. Its spending recommendations remained subject to county council approval.

Would the same answer necessarily apply to every county parks commission? A: The opinion distinguished a Charleston County commission with powers to acquire land, operate facilities, set charges, contract, and issue bonds. Its conclusion concerned Oconee's particular ordinance and duties.

Background and statutory framework

The county attorney asked about simultaneous membership on the school board and a commission established by Oconee County Ordinance No. 2011-12. The AG applied Article XVII, Section lA of the South Carolina Constitution and reviewed the ordinance's appointment, term, compensation, and advisory provisions. It compared those duties with the sovereign-power test and prior AG opinions about school boards and advisory bodies.

Citations and references

The opinion quotes Article XVII, Section lA and portions of Oconee County Ordinance No. 2011-12. Its conclusion turns on the commission's advisory duties under that ordinance.

Official title

Questioning whether “a member of the Oconee County School Board, as a holder of an office of honor and profit, [can] also serve as a member of the Oconee County Parks, Recreation and Tourism Commission, as established by Oconee County Ordinance 2011-12.”

Requester

Thomas Martin, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-1-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/07/martin-t-l-os-9277-7-1-11-dual-office-holding.pdf

Original opinion text

ALAN WILSON
AITORNEY GENERAL

July 1, 2011

Thomas Martin, Esquire
Oconee County Attorney
PO Box 11390
Columbia, SC 29211
Dear Mr. Martin:
We received your letter requesting an opinion of this Office concerning dual office holding. You asked whether "a member of the Oconee County School Board, as a holder of an office of honor and profit, [can] also serve as a member of the Oconee County Parks, Recreation and Tourism Commission, as established by Oconee County Ordinance 2011-12." Our Office has addressed the question of whether school board members are considered officers for purposes of dual office holding. We have also examined the position of those serving on county parks, recreation and tourism commissions. This opinion will address those prior opinions to determine if a dual office holding violation exists in this instance. LawI Analysis

Article XVII, Section lA 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 a 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). "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., 58 S.E. 762, 763. Other relevant considerations are whether statutes, or other such 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). This Office has advised on numerous occasions that one who serves on a county school board would be considered an officer for dual office holding purposes. Ops. S.C. Atty. Gen., September 3, 2010; December 12, 2007; June 16, 2006; January 29, 1997; July 31, 1992.

REMBEKI' c. DENNIS BUII..DING

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POST OFFICE Box 11549

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COLUMBIA, SC 29211 -1549

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TELEPHONE 803-734-3970

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FACSIMILE 803-253-6283

Mr. Martin

Page2
July 1, 2011
Therefore, it is our opinion that serving as a member of the Oconee County School Board would constitute an office within the meaning of Article XVII, Section IA of the South Carolina Constitution. Attached to your request letter, you provided us with a copy of the Oconee County Ordinance creating the Oconee County Parks, Recreation and Tourism Commission ("the Commission"). This ordinance provides that the Commission shall consist of seven members, "selected and appointed by a majority vote of county council. ... All members of the commission shall reside in the county . . . moving shall constitute a resignation by said member." Oconee County Ordinance No. 2011-12, Section 2-382. "No member may serve more than two full four-year terms consecutively." Oconee County Ordinance No. 2011-12, Section 2-383. The duties and responsibilities for the commission members are set forth as follows: (a) To advise county council on any matter affecting County Parks, Recreation and Tourism department ... (b) To have the responsibilities and duties for tax advisory commissions ... all acts of the commission recommending or involving the expenditure of funds and other matters shall be subject to review and approval by county council (c) To adopt guidelines for its duties and functions to fit the needs and time schedules of area . . . [including] requirements for application for funds generated by the accommodation tax (d) To participate in the recommendation for formulation of the budget and budgetary appropriations affecting the areas of concern for this commission (e) To prepare and present plans and recommendations to the Director of Oconee County Parks, Recreation and Tourism in the area of its activity, with recommendations for the implementation of such plans. Oconee County Ordinance No. 2011-12, Section 385 (emphasis added). Additionally, "[e]ach member of the commission shall be paid the sum of one hundred dollars per year, plus actual expenses for out of County travel, at the County's approved travel and per diem rates as sole compensation and only as funds allow. This Office acknowledges that some indicators of an office are present. For example, via an ordinance, the Oconee County Council proscribed a term and duties for the position as well as a method of compensation for members. However, we note there does not appear to be an oath requirement, nor do the duties proscribed indicate the Commission's ability to exercise sovereign power of the State. 1 Moreover, the provision explaining such duties indicates that the Commission is an advisory body. See, Oconee County Ordinance No. 2011-12, Section 385. 1

Unlike the responsibilities given to the Commission pursuant to the Oconee County Ordinance 2011-12, section 385, our Office concluded that duties given to members of the Charleston County Parks and Recreation Commission involved the "exercise of the sovereign power of the State" and therefore "constituted an office for dual office

Mr. Martin
Page 3
July 1, 2011

Prior opinions of this Office concluded members of advisory bodies are not officers for dual office holding purposes because they are not deemed to exercise a portion of the sovereign power of the State. Ops. S.C. Atty. Gen., October 16, 2006 (Georgetown County Parks and Recereation Commission); June 1, 2006 (Education and Economic Development Act Regional Education Center Advisory Board); February 24, 2004 (Beaufort County Solid Waste and Recycling Board); January 15, 2003 (Town of Hilton Head Accommodations Tax Advisory Committee); February 27, 2001 (legal advisory board for the Department of Natural Resources); December 1, 2000 (drought response committee); December 14, 1987 (Children's Foster Care Review Board). Accordingly, we do not find membership on the Commission constitutes an office for purposes of dual office holding. Conclusion

While one's service on the Oconee County School Board would be considered an office for dual office holding purposes, a position on the Oconee County Parks, Recreation and Tourism Commission would not be considered an office. Therefore, it is the opinion of this Office that an individual's simultaneous service in both positions would not violate the dual office prohibition contained in article XVII, section IA of the South Carolina Constitution. See, Op. S.C. Atty. Gen., March 2, 1999. Sincerely,

o'<'~ ~ckwill ~j~
Leigha Blackwell Sink
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

holding purposes." Members of the Charleston County Parks and Recreation Commission were empowered to "acquire land whereupon to establish county parks and operate such facilities; acquire and operate equipment; fix rates and charges for the use of its facilities; make contracts for construction and other services; issue revenue bonds and expend all funds received." Ops. S.C. Atty. Gen., January 27, 2004; January 29, 1997.