Could one person serve on both Beaufort County’s transportation committee and South Carolina’s technical education board?

Plain-English summary

A lawyer serving on Beaufort County's transportation committee asked whether he could also join the State Board for Technical and Comprehensive Education. In a July 2002 informal opinion, the AG said both memberships were public offices for South Carolina's dual office holding rule. Their simultaneous occupancy would violate the state constitution.

The letter described the technical education board's authority over state-supported technical institutions, contracts, regulations, degree criteria, and funds. It also described the county transportation committee's control over transportation plans and road funds. The AG treated those powers as exercises of state authority, rather than merely advisory roles.

Currency note

This opinion was issued in 2002. 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: Was a seat on the state technical education board considered a public office? A: Yes. The AG relied on the board's statutory powers, including its control over technical institutions and programs.

Q: Was the county transportation committee seat also an office? A: Yes. The opinion said its plan and funding responsibilities exercised a portion of state sovereign power.

Q: Could the requester hold both seats at once under the AG's analysis? A: No. The letter concluded that simultaneous service would be dual office holding.

Background and statutory framework

The opinion applied the constitutional test described in Sanders v. Belue. It cited § 59-53-10 and § 59-53-20 for the technical education board's appointment and institutional powers, and discussed § 12-28-2740 for county transportation committees.

Citations and references

• § 59-53-10: technical education board appointments and powers.
• § 59-53-20: board jurisdiction over technical institutions.
• § 12-28-2740: county transportation committee framework.
• Sanders v. Belue: sovereign-power criterion for dual office holding.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-26-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02july-26-harvey.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

July 26, 2002

W. Brantley Harvey, Jr., Esquire
Harvey & Battey, PA
P. 0. Box 1107
Beaufort, South Carolina 29902
Dear Mr. Harvey:
You note that you are presently serving on the Beaufort County Transportation Committee by appointment of the legislative delegation pursuant to S.C. Code Ann. Sec. 12-28-2740 (B). Additionally, you state that you have agreed to serve on the State Board for Technical and Comprehensive Education from the Second Congressional District. Your question is whether the simultaneous holding of both positions would constitute dual office holding in contravention of the South Carolina Constitution. Law I Analysis

I

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 certain exceptions. 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 for an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). This Office has previously concluded that the position of member of the State Board for Technical and Comprehensive Education constitutes an office for dual office holding purposes. See, Op. Atty. Gen., May 8, 2001 and March 22, 1995. In those opinions, we noted that the State Board for Technical and Comprehensive Education was created by S.C. Code Sec. 59-53-10 et seq. Pursuant to § 59-53-10, board members are appointed by the Governor for terms of six years and until their successors are appointed and qualify. Section 59-53-10 also authorizes the Board to enter into contracts and promulgate regulations. Pursuant to § 59-53-20, the Board is given jurisdiction over "all state-supported technical institutions and their programs that are presently operating and created in the future." Section 59-53-50 specifies additional powers of the Board, including: the development, implementation, coordination and operation of adequate post-high school vocational, technical and occupational diploma and associate degree courses; the establishment of criteria for approval and awarding of diplomas and degrees; the acceptance and administration of the donation of funds, grants and real property from individuals, corporations, foundations and governmental

REMBERT

c. DENNIS BUILDING

~.11.u,,.,Y &~ .

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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. Harvey
Page 2
July 26, 2002

bodies; the employment of an executive director and such other personnel necessary to fulfill its duties and responsibilities. Based upon the foregoing powers and duties, there can be little doubt that membership on the Board for Technical and Comprehensive Education constitutes an office for dual office holding purposes.

L

Likewise, it is our opinion that membership on a county transportation committee is an office of honor or profit. We have consistently so concluded. See, Op. Atty. Gen., April 2, 1998; June 19, 1997; July 23, 1996; May 16, 1995; December 7, 1994; December 20, 1993; May 15, 1989. By way of background, the South Carolina Supreme Court's decision in Tucker v. S.C. Dept. of Highways and Public Transportation, 309 S.C. 395, 424 S.E.2d 468 (1998) (Tucker I) declared that the provisions of S.C. Code Ann. Sec. 12-27-400 are unconstitutional in that such provisions require the county legislative delegation to approve the expenditure of"C" funds. Tucker concluded that it was constitutionally inappropriate under the doctrine of separation of powers to permit members of the Legislature to perform executive functions. In response to Tucker I, the Legislature placed the responsibility for "C" fund approval upon a county transportation committee. Section 1227-400 was amended to require the county legislative delegation to appoint the county transportation committee to perform this function. The constitutionality of§ 12-27-400, as modified, was upheld by the Supreme Court in Tucker v. S.C. Dept. of Highways and Transportation, 314 S.C. 131, 442 S.E.2d 171 (1994) (Tucker II). Thereafter, § 12-27-400 was recodified as § 12-28-2740.

I

Among the duties of the county transportation committee are adoption of a county-wide transportation plan; the approval and use of funds in furtherance of such plan; the adoption of specifications for local road projects, and so forth. Thus, we reiterate our earlier conclusion that these powers and duties "are indicative of an exercise of a portion of the sovereign power of the State." Op. Atty. Gen., July 28, 1993. Accordingly, it is our opinion that the simultaneous occupation of the positions of member of the Beaufort County Transportation Committee and member of the State Board for Technical and Comprehensive Education would constitute dual office holding under the South Carolina Constitution. This letter is an informal opinion only. It has been written by a designated Assistant Deputy 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 and not officially published in the manner of a formal opinion.

1~'

~bert

D. Cook
Assistant Deputy Attorney General