Could a Spartanburg technical-education commissioner also serve on the city construction appeals board?

Plain-English summary

A senator asked whether one person could serve on the Spartanburg County Commission for Technical Education and the City of Spartanburg Construction Appeals Board. The 1996 opinion said an earlier AG opinion had treated the education commission role as a public office. It then examined the city board’s powers under the local code.

The appeals board could hear appeals from building officials, consider variances and issue decisions described as final, subject to legal remedies. The AG said those duties exercised part of the State’s sovereign power and concluded that board members would most probably be public officeholders. On that view, serving in both roles at once would violate the state dual-office prohibition.

Currency note

This opinion was issued in 1996. 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: Did the AG approve holding both Spartanburg board seats in 1996? A: No. It concluded that the appeals board role most probably counted as a second public office and that simultaneous service would violate the dual-office rule.

Q: Why did the appeals board count as an office?
A: The opinion pointed to its authority to decide appeals and variances under the city code, especially its exercise of sovereign power.

Q: Did the absence of pay or an oath settle the question? A: No. The opinion noted those factors but still concluded that the board’s decision-making power made it probably an office.

Background and statutory framework

The opinion applied South Carolina’s constitutional dual-office test to the two identified positions. It described the city board’s creation, terms and powers and relied on an earlier opinion concerning the county education commission.

Citations and references

Constitutional provision discussed: Article XVII, Section 1A of the South Carolina Constitution.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-17-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96july17courtney.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CO'.'<DON
AlTORNEYGENERAL

July 17, 1996

The Honorable C. Tyrone Courtney
Senator, District No. 13
Post Office Box 2229
Spartanburg, South Carolina 29304
RE: Informal Opinion
Dear Senator Courtney:
Referencing a letter from the Office of the Governor to one of your constituents, you requested that this Office research the issue of whether an individual may serve simultaneously on the Spartanburg County Commission for Technical Education and on the City of Spartanburg Construction Appeals Board without running afoul of the dual office holding prohibitions of the South Carolina Constitution. Article XVII, Section 1A 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 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). 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 previously determined that one who would serve on the Spartanburg County Technical Education Commission would be considered an office holder for dual office holding purposes. Enclosed is a copy of an opinion dated April 5, 1994, so concluding. Thus, it must be determined whether membership on the

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The Honorable C. Tyrone Courtney
Page 2
July 17, 1996
Construction Appeals Board of the City of Spartanburg would also be considered an office.

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Chapter 5, Buildings and Building Regulations, of the Spartanburg City Code, provides in Article II for the Construction Board of Adjustment and Appeals. Section 522 provides for the establishment of the Board, which is to consist of seven members and two alternate members, who are to be appointed by Spartanburg City Council. Part 2.0 of Section 5-22 provides for membership and terms; it is suggested that appointees include "individuals with knowledge and experience in the technical codes, such as design professionals, contractors or building industry representatives." Two alternate members are suggested to be appointed, one to be from the building industry and one from the public at large. Part 2.2 provides for the "terms of office of the board members," (emphasis added) such terms to be for three-year periods. No provision is made for compensation (within these provisions of the City Code) or for an oath of office to be taken prior to assumption of duties. Part 3.0 provides as to powers to be exercised by the Board: "The construction board of adjustment and appeals shall have the power as further defined in 4.0 to hear appeals of decisions and interpretations of the building official and consider variances of the technical codes." The Board hears appeals from decisions of the building officials of the City of Spartanburg and may grant variances as provided in the City Code. Part 5.2 provides that "[e]very decision of the board shall be final, subject however to such remedy as any aggrieved party might have at law or in equity." The exercise of these duties involves an exercise of a portion of the sovereign power of the state, without question. Considering all of the foregoing in light of the factors specified in the judicial decisions discussed above, I am of the opinion that one who would serve on the City of Spartanburg Construction Appeals Board would most probably be considered an office holder for dual office holding purposes. That individual would thus contravene the dual office holding prohibitions of the South Carolina Constitution if he were to hold that office and serve at the same time on the Spartanburg County Technical Education Commission. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

The Honorable C. Tyrone Courtney
Page 3
July 17, 1996
With kindest regards, I am
Sincerely,

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Patricia D. Petway
Senior Assistant Attorney General
Enclosure

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