Could an independent-college president sit on both South Carolina higher-education commissions without violating the dual-office rule?

Plain-English summary

A tuition-grants official asked whether an independent-college president could serve both on South Carolina’s Tuition Grant Commission and, ex officio, as the independent-college representative on the Commission on Higher Education. The July 2001 informal opinion said the tuition-grant seat was an office because the commission regulated the grant program and controlled appropriated funds. The second seat did not create dual office holding, however, because the college representative served in an ex officio capacity connected to the existing college role.

The opinion relied on the distinction between an independent public office and duties attached to another role by law. It noted that a non-ex-officio seat on the higher-education commission might otherwise be an office, given that body’s powers. Its answer was confined to the described nonvoting, ex officio representation of independent colleges.

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.

Historical summary

College presidents

The letter allowed simultaneous service in the two specified seats under the dual-office rule, based on the ex officio nature of the higher-education role.

Commission officials

The AG treated tuition-grant membership as an office because the commission exercised governmental authority, including control over grant spending. It did not apply that label as a second office to the described ex officio seat.

Common questions

Was the tuition-grant seat a public office?
A: Yes. The opinion tied that conclusion to the commission’s rulemaking and control over appropriated grant funds.

Did the higher-education seat count as a second office?
A: Not for the described ex officio, nonvoting college representative. The AG said the dual-office prohibition did not bar that combination.

Did the opinion clear every higher-education commission appointment? A: No. It distinguished this ex officio seat from other seats that might themselves count as offices.

Background and statutory framework

The letter cited Section 59-113-10 for the Tuition Grant Commission’s administration and a South Carolina Supreme Court decision on ex officio duties. It applied those authorities to the two specific seats described in the request.

Citations and references

• Section 59-113-10: tuition-grant commission authority.
• The cited South Carolina Supreme Court decision discussed ex officio office holding.

Official title

Concerning whether a dual office holding situation exists if a South Carolina independent college president serves simultaneously as the ex officio member representing the independent colleges on the S.C. Commission on Higher Education and as a member of the S.C. Tuition Grant Commission.

Requester

Edward M. Shannon, III, Executive Director, South Carolina Higher Education Tuition Grants Commission.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-18-2001-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01july18shannon.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

July 18, 2001
Edward M. Shannon, III, Executive Director
South Carolina Higher Education Tuition Grants Commission
101 Business Park Boulevard, Suite 2100
Columbia, South Carolina 29203-9498
RE: Informal Opinion
Dear Mr. Shannon,
By your letter of July 6, 2001, you have requested an opinion of this Office concerning our State's Constitutional provision prohibiting dual office holding. You ask if a South Carolina independent college president may serve simultaneously as the ex officio member representing the independent colleges on the S. C. Commission on Higher Education and as a member of the S.C. Tuition Grant Commission.

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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 a notary public. For this provision to be contravened, a person concurrently must hold two public offires 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). Section 59-113-10 of the South Carolina Code of Laws provides for the Higher Education Tuition Grant Commission and states in part that "[t]he Commission shall administer the provisions of this chapter and shall make those regulations as may be necessary in order to carry out the intent of this chapter." The Higher Education Tuition Grant Commission apparently stands on equal footing with other state agencies, commissions and boards in carrying out the legislative intent in creating such Commission. See OP. ATTY. GEN. Sept. 26, 1979. The Commission exerts some degree of control over the expenditure of appropriated funds, and thus the Commission exercises a sovereign power in its regulating and implementing the statutory tuition grant scheme. It is our

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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. Shannon
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July 18, 2001
opinion that membership on the Higher Education Tuition Grant Commission would constitute office holding for purposes of the dual office holding prohibition of the State Constitution. Because we have opined that one of the positions constitutes office holding, the question turns to whether the position of membership on the S. C. Commission on Higher Education would likewise be considered an office. Section 59-130-10 creates the Commission and designates its membership. The independent colleges and universities representative is described as follows:

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One ex officio member to represent the independent colleges and universities by the Governor upon the advice and consent of the Senate. The individual appointed must be serving as a member of the Advisory Council of Private College Presidents. This member must be appointed for a term of two years and shall serve as a nonvoting member. S.C. CODE ANN.§ 59-113-10 (3) (emphasis added). The phrase ex officio is defined as "[f]rom office; by virtue of the office" or "[f]rom office; by virtue of office; officially. A term applied to an authority derived from official character merely, not expressly conferred upon the individual, but rather annexed to the official position .... " Lobrano v. Police Jury of Parish of Plaquemines, 90 So. 423, 425 (1921). The South Carolina Supreme Court has commented extensively on ex officio memberships in Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88, 95 (1947), stating that the rule oflaw prohibiting dual office holding "is not applicable to those officers upon whom other duties relating to their respective offices are placed by law." In an opinion of this Office dated March 22, 1995, we examined the dual office holding ramifications of membership on the Commission on Higher Education. In that opinion it was stated:

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But for the ex officio status accorded these members of the Commission on Higher Education, it is my opinion that these members would most probably be considered office holders for dual office holding purposes. The positions are created by statute. Certain qualifications must be met by the appointees (for example, being a trustee of a public institution of higher education). A specific term of service is provided, four years in the House bill and two years in the Senate bill. No oath of office is specifically required by these statutes.... Section 59-103-80 authorizes the Commission members to be paid such per diem and mileage as is authorized by law for members of state boards, commissions, and committees. The powers and duties to be exercised by the Commission members are specified in the various statutes in Chapter 103 of Title 59 and include studying the short and long-range programs of the state's institutions of higher education; approving requests for supplemental appropriations from the institutions; approving degree programs to be undertaken by

Mr. Shannon
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July 18, 2001
the institutions; making recommendations to the Budget and Control Board as to policies, programs, curricula, facilities, and the like, of the institutions as the Commission may consider desirable; making various reports as may be required; approving new construction; entering into contracts for the provision of teacher training programs; and more. These powers and duties appear to exercise a portion of the sovereign power of the State. Thus, one who would serve on the Commission of Higher Education in a status other than ex officio would most probably be considered an office holder. (Emphasis added).

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Thus, the Supreme Court of South Carolina, as well as prior opinions of this Office, have concluded that membership on a public body in an ex officio capacity should not be considered office holding for purposes of the State Constitution's prohibition against dual office holding. It is our opinion, therefore, that a South Carolina independent college president may serve simultaneously as an ex officio member representing the independent colleges and universities on the S. C. Commission on Higher Education and as a member of the S.C. Tuition Grants Commission without violating the dual office holding prohibition. 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 specific question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I remain Very truly yours,

Susannah Cole
Assistant Attorney General