Could a State Museum commissioner also serve on the museum’s fundraising foundation?

Plain-English summary

The chair of the South Carolina Museum Foundation asked whether someone appointed to the State Museum Commission could also be an officer or director of the museum's fundraising foundation. The AG treated the commission seat as a public office but concluded that service on this private nonprofit foundation board was not one. The foundation's bylaws described a supporting role for the museum, and the AG found no apparent exercise of state sovereignty by the foundation. Because the second role was not an office, simultaneous service did not violate the dual-office prohibition.

The AG separated that constitutional answer from a possible conflict-of-interest issue. He suggested that the individual contact the State Ethics Commission about the State Ethics Act. The letter did not decide whether the particular arrangement complied with ethics rules.

Currency note

This opinion was issued in 2005. 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

Was a State Museum Commission seat a public office?
Yes. The AG relied on an earlier opinion treating commission service as an office.

Why was the foundation board different?
It was a private nonprofit supporting the museum and did not appear to wield governmental power. The AG therefore did not count that board seat as a second public office.

Did the AG clear the arrangement under ethics law too?
No. He identified a possible conflict issue and suggested obtaining guidance from the State Ethics Commission.

Background and statutory framework

The opinion applied the constitutional dual-office test to the two positions. It acknowledged that rare nonprofits could exercise governmental power, but found no such authority in the foundation described by the request and its bylaws.

Citations and references

The letter discussed the South Carolina Constitution's dual-office provision and S.C. Code Ann.§ 60-13-10 in the original text below.

Official title

Inquired as to whether it would be a violation of the dual office holding prohibition to serve simultaneously as an officer or director of the South Carolina Museum Foundation and being appointed to the South Carolina museum Commission by the Governor.

Requester

Gray T. Culbreath, Chairman, South Carolina Museum Foundation

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-5-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05july-5-Culbreath.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McM.AsTER

JuJ y 5, 2005

ATfORNEY GEN.ERAL

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Mr. Gray T. Culbreath
Chainnan, South Carolina Museum Foundation
P.O. Box 100107
Columbia, South Carolina 29202
Dear Mr. Culbreath:
By letter, you requested an opinion of this office regarding duaJ office holding. In your letter you inquire as to the legality of the following scenario:
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May a member of the South Carolina Museum Commission duly appointed by the Governor pursuant to S.C. Code Ann.§ 60-13-10, also serve as an officer or director ofthe South Carobna Museum Foundation, a 501 (c)(3) nonprofit organization whose function is to provide fundraising support to the South Carolina State Museum. We advise that an individual serving simultaneously on the State Museum Commission and the State Museum Foundation does not violate the dual Office holding prohibition. However, we further advise that the individual contact the State Ethics Commission for guidance as to the applicability of the State Ethics Act with respect to such concurrent service.

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Law/ Analysis
Article XVIL 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 notary public. For this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders ' '· Belue, 78 S.C. 171 , 58 S.E. 762 (1907). Other relevant considerations are whether statutes, or other s uch authority, establish the position. prescribe its duties or salary, or require qualifications or an oath for the positi on. State"· Crenshaw. 274 S.C. 475, 266 S.E.2d 61 ( 1980). Furthennore, "[O]ne who merel y perfonns 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." See supra. 78 S.C. at 174.

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BullDING

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POST OmcE Box 11549

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COLllMBL~. s.c. 2921 1·1549 •

TELEPHONE: 803-734-3970

• FACSIMll.E: 803-25H>283

Mr. Gray T. Culbreath
Page 2
July 5, 2005

We have previously advised that an individual serving on the South Carolina Museum Commission holds an office for purposes of dual office holding. See, Op. S.C. Atty. Gen., March 28, 1983. Thus, the issue is whether an individual serving on the South Carolina Museum Foundation holds an office for purposes of dual office holding. As noted, the South Carolina Museum Foundation is a 501 (c)(3) nonprofit organization according to the United States Internal Revenue Code. In its bylaws, the Museum Foundation states its purposes as follows:

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[t]he Foundation is organized and at all times shall operate exclusively for the benefit of, to perform the functions of, or to carry out the purpose of the South Carolina State Museum (hereinafter referred to as the "supported organization") by (i) assisting in the creation and continued operation of a State Museum, (ii) promoting the program and welfare ofsuch State Museum, (iii) furthering education and research, mobilizing expert professional advice, and utilizing all available resources in order to accomplish the purpose for which the supported organization has been established, to with: "including but not restricted to the history, fine arts, and natural history and the scientific and industrial resources of the State ... " We have previously concluded that members of the board of directors of a private nonprofit corporation do not hold an office for dual office holding purposes. Ops. S.C. Atty. Gen., February 14, 2003; March 17, 1995; October 18, 1988; and November 10, 1983. Furthermore, the fact that a nonprofit organization receives public funds "does not make it a public body or state agency, or the officers of the body public officers .... " See, Op. S. C. Atty. Gen., November 10, 1983 (citing Ky. Region Eight v. Commonwealth, 507 S.W.2d 489 (Ky. Ct. App. 1974)). However, we have noted that in rare instances, a nonprofit organization may constitute a state, local or governmental agency when the organization possessed certain attributes of state sovereignty. See, Op. S. C. At~y. Gen., September 6, 1996 (citing Philadelphia Nat. Bank v. US. o.fAmerica, 666 F .2d 834 (3d Cir. 1981) (Temple University, a nonprofit organization, was not a political subdivision of the state because it did not possess the power to tax, the power of eminent domain or the police power)). In light of our previous opinions, we conclude that membership on the South Carolina Museum Foundation does not constitute an office for dual office holding purposes. The Foundation does not appear to exercise any portion of state sovereignty and thus likely would not be considered a governmental agency. In fact, its bylaws plainly state that the Foundation's sole purpose is to "operate exclusively for the benefit of. ... the South Carolina State Museum .... " Accordingly, we conclude that service as a board member on the South Carolina Museum Foundation does not constitute an office for dual office holding purposes. However, we note that the potential for conflict of interest may arise from ,simultaneous service on both the South Carolina State Museum Commission and the South Carolina Museum

Mr. Gray T. Culbreath
Page3
July 5, 2005

Foundation.
guidance.

Thus, we suggest that you may wish to contact the State Ethics Commission for

Conclusion

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It is our opinion that an individual serving on the State Museum Foundation does not hold an office for dual office holding purposes. Accordingly, an individual who serves simultaneously on the State Museum Commission and the State Museum Foundation does not violate the dual office holding prohibition. However, as we explain above, the individual in question may wish to contact the State Ethics Commission for guidance as to the applicability of the State Ethics Act with respect to such simultaneous service.

Very~.·~
lyyours,
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Robert D. Cook
Assistant Deputy Attorney General

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