Could a Kershaw County transportation committee member also serve on its water and sewer authority?

Plain-English summary

A Kershaw County Transportation Committee member asked whether he could also serve on the county Water and Sewer Authority. The 1996 opinion said the transportation committee role counted as a public office, although an earlier opinion had acknowledged some doubt. The question was whether the water authority role was a second office under the state constitutional rule.

The AG reviewed the ordinance creating the authority. Its members had defined terms and management duties, but County Council retained ultimate approval over budgets, rates, contracts and other significant acts. Because that ultimate sovereign power rested with the Council, the AG concluded, while calling it a close question, that authority members probably were not public officers. He therefore said the two roles could most probably be held together.

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 1996 opinion permit someone to serve on both Kershaw boards? A: The AG said concurrent service was most probably permissible under the dual-office rule, given the particular ordinance and Council’s retained powers.

Q: Why was the water and sewer authority role different? A: Despite features commonly associated with public office, its members did not appear to exercise ultimate sovereign power; County Council reserved the key decisions.

Q: Was the conclusion definite for every water authority? A: No. The AG described this ordinance’s allocation of powers and called the office question close. The opinion did not assess other authorities.

Background and statutory framework

The opinion applied the state dual-office test to two county roles. It considered how the authority was created, its members’ terms and duties, and where the ordinance placed final decision-making power.

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-23-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96july23artlip.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

July 23, 1996

Mr. Bob Artlip
246 Smithfield Circle
Elgin, South Carolina 29045
RE: Informal Opinion
Dear Mr. Artlip:
You had faxed to the Office of Attorney General Condon a copy of Kershaw County Council's ordinance creating the Kershaw County Water and Sewer Authority. Referencing the fact that you are on the Kershaw County Transportation Committee, you have asked whether you might also be able to serve on the Kershaw County Water and Sewer Authority without running afoul of the dual office holding prohibition 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 opined previously that one who would serve on a county transportation committee would hold an office for purposes of dual office holding, though the conclusion was not entirely free from doubt. Enclosed is a copy of that opinion, dated July 28, 1993, for your review. RI \llllRI

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PosrOFF!CE 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. Bob Artlip
Page 2
July 23, 1996
The Kershaw County Water and Sewer Authority was created by an ordinance of Kershaw County Council; the document which I reviewed was dated April 15, 1992. Section 2 of that ordinance provides for the appointment of a commission for management and control of the Authority; section 2(a) provides in relevant part:

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The management and control of the Authority shall be vested in a commission consisting of seven (7) members. The initial Authority members shall be recommended by the Organizational Group and appointed by County Council. Future replacements shall be recommended by the Authority and appointed by County Council. The selection process should give primary emphasis to qualified candidates with broad problem-solving skills including managerial, financial and technical areas. Consideration should also be given to appointing representatives from various geographical areas of the County. The initial Authority shall consist of seven (7) members, three (3) of whom shall be elected for three (3) years and two (2) of whom shall be elected for two (2) years and two (2) of whom shall be elected for one ( 1) year. All new or renewal appointments after the expiration of the initial terms of the initial Authority shall be for three (3) year terms .... As to compensation, section 2(d) of the ordinance provides: No Authority member shall receive any compensation solely for the performance of duties as a member, but each Authority member may be paid per diem, mileage and subsistence expenses, as provided by law for Kershaw County boards, committees and commissions, incurred while engaged in the performance of such duties. The duties of the Authority, as exercised by the Authority members, are specified in section 7 of the ordinance and include such activities as studying, developing, and recommending to County Council projects and other arrangements to establish, maintain, or improve water, wastewater, or solid waste services. The Authority may implement projects approved by County Council. An extensive list of powers relative to recommendations and approvals is reserved by Kershaw County Council. It appears that, due to the ultimate authority in County Council to approve such items as the Authority's budget, fees, rates, and regulations; to make contracts; to alienate property; to borrow money; to acquire and operate any water or wastewater treatment commission or any water distribution system, as stated in the ordinance; and the like that the actual, ultimate exercise of sovereign power in this instance is reposed in County Council rather than in the Authority.

Mr. Bob Artlip
Page 3
July 23, 1996

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While a number of factors usually found in an office are present in this instance, the Authority members do not appear to actually exercise a portion of the sovereign power of the state. While the question is a close one, I would resolve doubt in favor of concluding that one who would serve as a member of the Kershaw County Water and Sewer Authority would probably not be considered an office holder for dual office holding purposes. Thus, a member of the County Transportation Committee of Kershaw County could most probably serve concurrently on the Kershaw County Water and Sewer Authority without running afoul of the dual office holding prohibitions of the South Carolina Constitution. 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 reviewed in the manner of a formal opinion. With kindest regards, I am Sincerely,

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Patricia D. Petway
Senior Assistant Attorney General
Enclosure