Could someone serve on a South Carolina county council and the State Board of Nursing at the same time?

Plain-English summary

In 1999, an attorney asked whether one person could serve both on Greenwood County Council and on South Carolina's State Board of Nursing. The Attorney General's office said that would violate the state constitution's dual-office prohibition. Earlier AG opinions already treated county council membership as a public office. The question was whether the nursing board seat was also an office.

The office said it was. The board was created by statute, its members were appointed by the Governor for specified terms, and it exercised powers over nursing licenses, investigations, discipline, hearings, and education standards. Those features involved the state's sovereign authority. The letter was informal and addressed simultaneous service in these two positions.

Currency note

This opinion was issued in 1999. 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

Could a Greenwood County Council member also sit on the State Board of Nursing? A: The AG said no. Holding both at once would violate the constitutional dual-office rule.

Why did the nursing board seat count as an office?
A: The opinion identified statutory creation, appointment and term rules, and powers over licensing, investigation, discipline, and hearings as evidence of a public office.

Was county council membership also an office?
A: The letter said prior AG opinions had repeatedly reached that conclusion for county council members.

Did the opinion address all professional boards?
A: No. A footnote mentioned analogous earlier opinions involving two other professional boards, but this answer concerned the State Board of Nursing.

Background and statutory framework

The opinion applied Article XVII's prohibition on holding two offices of honor or profit at the same time. It cited Sanders v. Belue and State v. Crenshaw for the public-office inquiry, then reviewed the nursing board's statutory powers and appointment structure.

Citations and references

Statutes: §§ 40-33-220 and 40-33-230.

Cases: Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907); State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).

Official title

Asking whether the dual office holding prohibitions of the South Carolina Constitution would be violated if an individual were to simultaneously serve as a member of the Greenwood County Council and as a member of the State Board of Nursing.

Requester

W. Lee Roper, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-26-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99july26roper.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLES MOLON Y CONDON
ATTOR:--IEY GENERAL

July 26, 1999

W. Lee Roper, Esquire
Burns, McDonald, Bradford, Patrick & Tinsley, LLP
Attorneys and Counselors at Law
414 Main Street
Greenwood, South Carolina 29646
RE:

Informal Opinion

Dear Mr. Roper:
Your opinion request has been forwarded to me for reply. You have asked whether the dual office holding prohibitions of the South Carolina Constitution would be violated if an individual were to simultaneously serve as a member of the Greenwood County Council and as a member of the State Board of Nursing. Article XVII, Section IA of the State 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 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 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 advised on numerous occasions that a member of a county council would hold an office for dual office holding purposes. Ops. Allx· Gen. dated June 27, 1997, December 7, 1994, August 20, 1985 and June 26, 1984. Thus, it must be determined whether a member of the State Board of Nursing would also hold an office.

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W. Lee Roper, Esquire
July 26, 1999
Page 2

The State Board of Nursing is established pursuant to S.C. Code Ann. § 40-33-21 O et seq. The Board is to consist of nine members, appointed by the Governor. The terms of the members are four years and until successors are appointed and qualified. Board members may receive the usual per diem, mileage, and subsistence as provided by law for members of state boards. S.C. Code Ann. § 40-33-230. The powers of the Board are set forth in S.C. Code Ann. § 40-33-220. These powers include examining candidates for licensure, licensure generally, investigating and disciplining licensees (including subp.oena powers), holding hearings, developing minimum standards for nursing education programs, and more. Thus, considering all of these factors, a member of the State Board of Nursing would be an officer for dual office holding purposes. 1 Based on the foregoing, if an individual were to simultaneously serve as a member of the Greenwood County Council and as a member of the State Board of Nursing, the dual office holding prohibitions of the South Carolina Constitution would be violated. 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 questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With best personal regards, I am Sincerely yours,

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Paul M. Koch
Assistant Attorney General

1

This Office has reached a similar conclusion when evaluating other professional regulatory boards. See Ops. Attv. Gen. dated December 7, 1994 (South Carolina Real Estate Appraisers Board) and June 25, 1986 (State Board of Cosmetology).