Could a South Carolina Lottery Commission member also serve on Spartanburg’s hospitality-tax grant committee?

Plain-English summary

In 2020, the South Carolina Attorney General concluded that a Lottery Commission member could also serve on Spartanburg's Hospitality Tax Grants Committee without violating the state constitution's dual-office rule. Lottery commissioners were public officers, but the city committee's task was to review grant applications and recommend allocations to City Council. The office said that advisory work did not exercise sovereign power and therefore was not a second public office.

The opinion separated that constitutional conclusion from ethics questions. It suggested contacting the State Ethics Commission about possible conflicts of interest and deferred to that commission's authority to interpret the Ethics Act.

Currency note

This opinion was issued in 2020. 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: Why did the grant committee not count as a public office?
A: The AG said it only reviewed applications and recommended grants; City Council retained allocation authority.

Q: Did statutory or city creation alone make committee service an office?
A: No. The office considered the committee's creation and term but focused on its purely advisory role and lack of sovereign power.

Q: Did the opinion clear all ethics concerns?
A: No. It suggested consulting the State Ethics Commission for any separate conflict-of-interest question.

Background and statutory framework

The opinion applied the constitutional rule against simultaneously holding two public offices. It treated Lottery Commission service as an office and assessed the city committee's actual authority under its creating resolution, distinguishing recommendations from final governmental action.

Citations and references

The opinion applied the state constitution's dual-office provision and cited the State Ethics Commission's separate authority over ethics questions.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-30-2020-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/08/02340914.pdf

Original opinion text

Alan Wilson
ATTORNEY GENERAL

July 30, 2020

Dolly Garfield, Esq.
General Counsel

South Carolina Education Lottery
PO Box 11949

Columbia, SC 29211-1949
Dear Ms. Garfield:

You have requested a formal opinion of this Office regarding dual office holding. Specifically, you are asking if service on both the South Carolina Lottery Commission and the City of Spartanburg Hospitality Tax Grants Committee would violate the constitutional prohibition against dual office holding. LAW/ANALYSIS

Dual office holding is provided for in the South Carolina Constitution, which states:

[n]o person may hold two offices of honor or profit at the same
.time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public.... The limitation above set forth does not prohibit any officeholder from being a delegate to a constitutional convention. S.C. Const, art. XVII § 1 A.

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is:

r^MBERTC.Dennis Building « Post Office Box 11549 . Columbia,SC 29211-1549 . Telephone 803-734-3970 . Facsb/Hle 803-253-6283

Dolly Garfield, Esq.
Page 2

July 30, 2020

"One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer." Sanders v. Belue. 78 S.C. 171, 174, 58 S.E. 762, 763 (1907), "In considering whether a particular position is an office in

the constitutional sense, it must be demonstrated that "[t]he power of appointment comes from the state, the authority is derived from the law, and the duties are exercised for the benefit of the public." Willis v. Aiken County. 203 S.C. 96, 103 26 S.E.2d 313,

316 (1943). "The powers conferred and the duties to be discharged with regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority ..."63C Am Jur.2d

Public Officers and Employees § 5 (2009).
Segars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E.2d 453 (2010). Other relevant considerations for an office are: whether the position was created by the legislature; whether the qualifications for appointment are established; whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others.

Op. S.C. Attv. Gen.. 2013 WL 3243063 (June 17, 2013) (quoting State v. Crenshaw. 274 S.C.

475, 478, 266 S.E.2d 61, 62 (1980)).
The General Assembly has declared that members of the South Carolina Lottery Commission are public officers. See S.C. Code Ann. § l-3-240(C)(l) (1976 Code, as amended) (emphasis added) ("Persons appointed to the following offices of the State may be removed by the Governor for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity: South Carolina Lottery Commission . . ."). The issue is whether members of the City of Spartanburg Hospitality Tax Grants Committee

("Committee") are also officers.
The City of Spartanburg established the Committee by
The Committee is composed of seven members. The Mayor appoints two rotating members of City Council to one year terms on the Committee and the City Council approves the resolution.

appointment of five City of Spartanburg residents to serve three year terms. The Committee is "charged with reviewing grant applications and annually presenting a recommended slate of grant allocations to the City Council, if any such allocations are

Dolly Garfield, Esq.
Page 3

July 30, 2020

considered/'

The Committee can "adopt additional rules, policies and procedures to assist the

body in its function, provided such additional rules do not conflict with this Resolution, state law, federal law or any Ordinance of the City." The resolution does not provide for the qualifications of the position or a salary. It also does not require a bond or oath. Although the position, its duties, and its term are created by a legislative resolution, we do not

believe that a member of the Committee would be a public officer. This Office has consistently opined that "members of advisory bodies do not hold an office for dual office holding purposes." OP. S.C. Atty. Gen., 2002 WL 399636 (Jan. 23, 2002). The Committee reviews grant applications and recommends a slate of grant allocations to the Spartanburg City Council. It acts in a purely advisory capacity and does not exercise a portion of the sovereign power of the State. Therefore, we believe that it would not be a violation of the constitutional prohibition against dual office holding for an individual to serve on both the South Carolina Lottery Commission and on the City of Spartanburg Hospitality Tax Grants Committee. Our conclusion is supported by other opinions of this Office, in which we determined that members of accommodations tax

committees are not public officers. See Ops. S.C. Atty. Gen., 1984 WL 249932 (July 17, 1984); 2001 WL 1215465 (Sept. 14, 2001). You may wish, however, to contact the State Ethics Commission to confirm that there are not any conflicts of interest. Our Office defers to the Ethics Commission on ethical issues since it was given authority by the Legislature to interpret and issue opinions pertaining to the Ethics

Act. See S.C. Code Ann. § 8-13-320(1 1) (1976 Code, as amended). CONCLUSION In our opinion, it would not be a violation of the constitutional prohibition against dual office holding for an individual to serve on both the South Carolina Lottery Commission and on the

City of Spartanburg Hospitality Tax Grants Committee. You may wish, however, to contact the State Ethics Commission to confirm that there are not any conflicts of interest. Sincerely,

Elinor V. Lister

Assistant Attorney General

\

Dolly Garfield, Esq.
Page 4
July 30, 2020

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General