Could a South Carolina legislator take the newly created lottery executive-director job in 2001?

Plain-English summary

A senator asked whether someone who served in South Carolina’s legislature in 2001 could become executive director of the newly created state lottery. The July 2001 AG letter said yes under the cited civil-office restriction. The restriction barred a legislator, during the elected term, from appointment or legislative election to a civil office created during that term. The AG concluded the lottery director’s position was an employee role, not a civil office, so that particular bar did not apply.

The letter relied on the director’s place under the lottery board. The board appointed the director, set compensation and could end the service at pleasure. Although the director managed operations and had specified powers, the AG viewed those duties as carrying out board policy, not independently exercising sovereign power. The lottery law itself called the director an employee. The conclusion addressed the cited office-holding restriction, rather than every possible qualification for public employment.

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

Legislators

The letter held that the new lottery directorship did not trigger the civil-office restriction because the position was an employee role subordinate to the board.

Lottery board members

The AG emphasized the board’s control over appointment, pay, tenure and policy as the reasons for treating the director as an employee.

Common questions

Did the statute prohibit a legislator from taking any new state job? A: The opinion read the cited restriction as applying to newly created civil offices, and classified this job as employment instead.

Did the director’s management powers make the position a civil office? A: The AG said no. The director performed those duties under the board’s supervision and served at its pleasure.

Did the AG address every hiring rule for the lottery job? A: No. The letter answered whether this specific civil-office disqualification applied.

Background and statutory framework

The opinion quoted §2-1-100 and examined the executive-director role under § 59-150-80 and related lottery provisions. It used Sanders v. Belue on the distinction between public office and employment.

Citations and references

• §2-1-100: restriction on legislators taking certain newly created civil offices.
• § 59-150-80: board appointment and employee status of the director.
• Sanders v. Belue: office-versus-employee distinction cited by the AG.

Official title

Asking “whether a legislator who has served in the South Carolina General Assembly in 2001 may be employed as Executive Director of the South Carolina Lottery, an employment position created by the legislation that enacted the South Carolina Lottery in 2001.”

Requester

The Honorable Glenn F. McConnell, President Pro Tempore, The Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-24-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01july24mcconnell.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

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July 24, 2001

The Honorable Glenn F. McConnell
President Pro Tempore
The Senate
P. 0. Box 142
Columbia, South Carolina 29202
Dear Senator McConnell:
You have asked for an opinion as to "whether a legislator who has served in the South Carolina General Assembly in 2001 may be employed as Executive Director of the South Carolina Lottery, an employment position created by the legislation that enacted the South Carolina Lottery in 2001." LAW I ANALYSIS

South Carolina Code Ann. Section 2-1-100 provides as follows: No Senator or Representative shall, during the time for which he was elected, be elected by the Ge:ieral Assembly or Rppointed by any executive authority to any civil office under the domimun of the State which shall have been created during the time for which such Senator or Representative was elected to serve in the General Assembly. (Emphasis added). As you note in your letter, the seminal question is whether the position of Executive Director of the Lottery constitutes a "civil office" within the meaning of §2-1-100. If the position of Executive Director is not a "civil office," then the prohibition of the statute, designed to prohibit so-called "feather bedding," or the creation by the Legislature of a position for one of their own members, is inapplicable. In other words, if § 2-1-100 does not apply, the individual may thus serve in the position of Executive Director. The terms "civil office" and "public office" are typically used interchangeably with one another. However, it has been held that the former refers to all offices except military offices while the phrase "public office" encompasses both civil and military offices. Lanza v. DeMarina, 160

REMBERT

c. DENNIS BUILDING

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~_aH~- 0LH7J )

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

The Honorable Glenn F. McConnell
Page2
July 24, 2001

N.J.Super. 71, 388 A.2d 1294 (1970). Accordingly, we must examine the question of whether the position of Executive Director constitutes an "office" within the meaning of§ 2-1-100.

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Guidance as to this question may be found in the closely analogous area of whether an individual holds more than one "office" in violation of the dual office holding prohibition contained in Article XVII, Section lA of the South Carolina Constitution. For this provision to be contravened, a person 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 similar 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). See also, State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997). The position of Executive Director of the Lottery is referenced in §§ 59-150-80 and 59-150910 of S-496of2001. Section 59-150-80(A) states that the Lottery Board "shall appoint and provide for the compensation of an executive director." That same Section provides that "the executive director must be an employee of the Commission who directs the day-to-day operations and management of the commission and is vested with powers and duties specified by the board and by law." The executive director "serves at the pleasure of the board." Section 59-150-90 specifies certain duties of the Executive Director: to direct and supervise all administrative and technical activities of the Lottery; to oversee the initiation of and supervise the games; employ and direct personnel; employ by contract and compensate persons and firms; promote the lottery; prepare a budget for the approval of the Board; require bonds in amounts approved by the Board; report monthly to the State Auditor and Board all lottery revenues and expenses for the preceding 13 months; and perform "other duties generally associated with an executive director of a conumssion of an entrepreneurial nature.,,, Subsection (B) of § 59-150-90 authorizes the Executive Director to "suspend, revoke or refuse to renew" contracts in accordance with regulations, policies and procedures of the Board. Subsection (C) empowers the Executive Director or his designee to "conduct hearings and administer oaths to persons for the purpose of assuring the security or integrity of lottery operations or to determine the qualifications of or compliance by a lottery vendor and or a lottery retailer." Nothing in the statute provides for a specific salary of the Executive Director. Neither does the new statute specify a term of office or tenure or provide for a bond or oath of office. Indeed, the statute makes it clear that the Board sets the Executive Director's compensation and the Executive Director serves at the Board's pleasure. No qualifications are established for the Executive Director in the statute. With respect to the question of whether or not the Executive Director exercises some portion of the sovereign power of the State, it is our opinion that he or she would not. The General

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The Honorable Glenn F. McConnell
Page 3
July 24, 2001

Assembly clearly intended that the Executive Director serves under the authority and supervision of and subject to the direction of the Lottery Board. Virtually every duty referred to in the statute so states. See, ~ § 59-150-50 (executive director "recommends" to the Board the budget and the terms of procurements).

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This Office has repeatedly concluded over the years that the position of executive director of a board or commission or president of a college or university does not constitute an "office." See, Op. Atty. Gen., November 24, 1997 (President and Chief Executive Officer of Santee Cooper not an office); Op. Atty. Gen., July 19, 1995 (Executive Director of the Donaldson Development Commission is not an office); Op. Atty. Gen., May 15, 1989 (executive director of the Calhoun County Development Board is not an office); Op. Atty. Gen., March 10, 1988 (executive director of the Children's Foster Care Review Board is not an office); Op. Atty. Gen., June 11, 1985 (executive director of the Abbeville County Research, Planning and Development Board is not an office); Op. Atty. Gen., April 29, 1983 (executive director of Richland Medical Center is not an office.) In each of these opinions, we particularly stressed the fact that the executive director served at the pleasure of the governing board or authority. Generally speaking, no qualifications were set forth in law in those executive director positions. And, most importantly, we referenced the general rule set forth in Sanders v. Belue, supra which is stated as follows:
[O]ne 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. 78 S.C. at 174. In short, in virtually every previous instance where the question has arisen, we have concludell that an executive director of a governing board or commission is an "employee," rather than an "officer." In a slightly different, but closely analogous context, we concluded in Op. No. 4203 (November 26, 197 5) that the President of South Carolina State is not an officer. There, we quoted from the case of Martin v. Smith, 239 Wis. 314, 1N.W.2d163. That case held that the position of college president is not an office, and the decision used language which is also pertinent to our analysis here. There, the Court stated:

The President ... being subject in all things to the action of the Board of Regents, it is the Board ... and not the President that exercises some part of the sovereign authority of the State. The President ... is a subordinate of the Board ... in executing and carrying out the policies and laws laid down by it ... He is an employee, not a public officer.

The Honorable Glenn F. McConnell
Page4
July 24, 2001

CONCLUSION

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Similarly, the Executive Director of the Lottery is not an officer, civil or otherwise, but is instead an employee of the Lottery Board or Commission. The Executive Director merely carries out and executes the policies laid down by the Board. Most importantly, the General Assembly itself recognized this fact, referring to the Executive Director in § 59-150-80 as an "employee" of the Board. Statutes must be read together and harmonized with each other. It must be presumed that the Legislature was cognizant of§ 2-1-1 OO's prohibition upon "officers." Yet, the Legislature, in enacting the Lottery law, clearly thought of the Executive Director to the Lottery Board not as an officer, but as the Board's employee. Clearly, the General Assembly recognized the distinction between "officers" and "employees," using each term separately in § 59-150-40(E). The characterization of the Legislature must be given considerable weight in determining whether§ 2-1100 is applicable. Accordingly, in our opinion, § 2-1-lOO's prohibition does not cover the creation of the position of Executive Director of the Lottery. Therefore, the disqualification to hold a civil office placed upon legislators by this statute is simply inapplicable to the position of Executive Director of the Lottery. In sum, the position of Executive Director of the Lottery Board or Commission is that of an "employee" rather than an "officer."

Robert D. Cook
Assistant Denuty Attorney General

RDC/a'.n