Could one person serve on both the Central Midlands Transit Authority board and the Richland-Lexington Airport Commission?

Plain-English summary

A lawyer asked whether a member of the Central Midlands Regional Transit Authority board could also serve on the Richland-Lexington Airport Commission. The appointee had tendered a resignation from the transit board, and the authority wanted to know whether to accept it. The AG concluded that both positions were public offices because the boards exercised governmental power: the transit authority governed regional transport, and the airport commission governed and oversaw airport facilities.

The AG said holding both positions at once would violate South Carolina's constitutional bar on dual office holding and advised accepting the transit-board resignation. His analysis concerned a seat on the transit authority's board of directors; he separately noted an earlier opinion's exception for an elected official serving on a transportation board ex officio and said that was apparently not the situation here.

Currency note

This opinion was issued in 2005. 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

Was a transit authority board seat treated as a public office?
Yes. The AG relied on the board's sovereign powers and an earlier opinion on regional transportation authority governing bodies.

Was the airport commission seat also an office?
Yes. The opinion identified the commission's authority to govern and oversee district airport facilities.

What did the AG say about the offered resignation?
He said the transit authority should accept it because the individual could not hold both board positions without violating the constitution.

Background and statutory framework

The letter applied the dual-office test to the particular boards and distinguished board governance from mere employment. Its ex officio qualification was confined to a different situation mentioned in an earlier opinion.

Citations and references

The original opinion discussed Article XVII, Section IA of the South Carolina Constitution, § 58-25-50, and § 55-11-340.

Official title

Inquired as to whether it would be a violation of the dual office holding prohibition to serve simultaneously on the Central Midlands Regional Transit Authority and the Richland-Lexington Airport Commission.

Requester

Francenia B. Heizer, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-11-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05july-11-Heizer.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
IIENRv McMAsTER

July 11, 2005

ATrORNEY GENERAL

Francenia B. Heizer, Esquire
McNair Law Firm, P.A.
1301 Gervais Street
Columbia, South Carolina 29201
Dear Ms. Heizer:
By letter, you have requested an opinion on behalf of the Honorable Pat G. Smith, Mayor of the Town of Springdale, and Chair of the Central Midlands Regional Transit Authority regarding dual office holding. Specifically, you inquire as to whether an individual currently serving on the Central Midlands Regional Transit Authority (the "Transit Authority") can simultaneously serve on the Richland-Lexington Airport Commission (the "Airport Commission") without violating the dual office holding prohibition. As explained more fully below, it is our opinion that such concurrent service would constitute dual office holding. In your letter, you explain that the Transit Authority is a regional authority established pursuant to S.C. Code Ann. Section 58-25-40. You note that the Transit Authority consists of 15 members. Transit Authority members appoint th.e Board ofDirectors who function as the governing body of the Authority.

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With respect to the Richland-Lexington Airpo1t District, you indicate that it is a body politic and corporate and a political subdivision of the State which operates the Columbia Metropolitan Airport (the "Airport"). The District is governed by the Richland-Lexington Airport Commission (the "Airport Commission"), which is appointed by Governor upon the following recommendations: five members are recommended by the Legislative Delegation representing Richland County; five members are recommended by the Legislative Delegation representing Lexington County; and two members are recommended by the Columbia City Council. You also explain that a member of the Transit Authority Board has recently been appointed to the Airport Commission. However, you note that the individual has tendered ms resignation on the Transit Authority Board in order that he may accept his position on the Airport Commission and not violate the dual office holding prohibition. You thus seek guidance to detennine whether the Transit Authority should accept this individual ' s letter of resignation.

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Ms. Heizer
Page 2
July 11, 2005

LawI Analysis

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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, 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 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). Furthermore, "one who merely performs the duties required of him under an express contract or otherwise, though such persons themselves be public officers, and though the employment be in or about a public work or business, is a mere employee." Sanders, supra, 78 S.C. at 174. In a December 14, 1987 opinion, we advised that an individual serving on the governing body of a regional transportation authority created pursuant to § 58-25-10 et seq. holds an office for purposes of dual office holding. Op. SC Atty. Gen., Op. No. 87-101 (December 14, 1987). Our review of the Authority's powers and duties of such a Board member convinced us that the Authority exercises sovereign powers pursuant to § 58-25-50. While we also noted therein that if an elected official served as a member of the Board ex officio, such additional service would not constitute a separate office, such is apparently not the case here. Accordingly, we advise that a member serving on the Board of Directors for the Central Midlands Regional Transit Authority holds an office for purposes of dual office holding. Likewise, we have counselled on numerous occasions that an individual serving on a county airport commission would hold an office for purposes of dual office holding. See, Ops. SC Atty. Gen., April 29, 1985; January 19, 1983; November 9, 1982; August 22, 1975. See also, Op. SC Atty. Gen., January 17, 2001 (Pickens County Aeronautics Commission office for purposes of dual office holding). While we apparently have not addressed the specific position of members of the Richland-Lexington Airport Commission, such members clearly exercise sovereign powers similarly to those of other airport commissions. See, § 55-11-340. Like other such commissions, the Richland-Lexington Airport Commission possesses the general power pursuant to§ 55-11-340 to govern and oversee "such airports and air navigation facilities" of the Richland-Lexington Airport District. Thus, we advise that an individual serving on the Richland-Lexington Airport Commission would hold an office for dual office holding purposes.

Conclusion
It is our opinion that an individual simultaneously serving on a regional transportation authority and a county airport commission would contravene the dual office holding provision of the South Carolina Constitution. Specifically one serving as a board member of the Central Midlands Regional Transportation Authority and as a member of the Richland-Lexington Airport Commission

Ms. Heizer
Page 3
July 11, 2005

would be dual office holding. However, as noted, the individual has tendered his letter ofresignation and therefore has taken the necessary steps to terminate his position on the Transit Authority. Accordingly, as to your question regarding accepting such letter of resignation, it should be accepted it because he cannot hold both positions without violating the South Carolina Constitution.

Assistant Deputy Attorney General

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