Could a South Carolina state trooper serve on the Waccamaw Economic Opportunity Council board?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that a state trooper could simultaneously serve on the Waccamaw Economic Opportunity Council (WEOC) board. A trooper's commission was likely a public office under the state constitution's dual office holding rule. The AG found that WEOC board membership did not constitute another public office because the board did not exercise South Carolina's sovereign power.

The opinion followed earlier AG guidance about a similar economic opportunity council described as a private nonprofit corporation. It applied the constitutional rule to the particular combination in the request. It did not say that every nonprofit board has the same legal character.

Currency note

This opinion was issued in 2011. 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 trooper sit on WEOC's board without violating the dual office rule? A: Yes. The AG concluded that the trooper role counted as a public office but the WEOC board seat did not, so the person would not hold two public offices.

Why did the trooper commission count as an office?
A: The opinion relied on prior AG opinions and a South Carolina Supreme Court case recognizing the trooper's law enforcement duties as an exercise of sovereign power.

Why was WEOC board service different?
A: The AG found no exercise of state sovereign power in serving on that board. It compared WEOC to another economic opportunity council previously treated as a private agency.

Background and statutory framework

The Department of Public Safety asked whether one person could hold a state trooper commission and a WEOC directorship. Article XVII, Section 1A of the state constitution prohibited simultaneous holding of two public offices of honor or profit, apart from specified exceptions. The AG applied the public-office test from Sanders v. Belue and State v. Crenshaw to each role.

Citations and references

The opinion quotes Article XVII, Section 1A and discusses State v. Bridges on highway patrol officers. Its conclusion depends on WEOC board service not constituting a public office.

Official title

Asking whether one would be prohibited “from holding his commission as a State Trooper while simultaneously serving on the WEOC [Waccamaw Economic Opportunity Council] Board of Directors.”

Requester

F.K. Lancaster, Jr., Interim Director, S.C. Department of Public Safety

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-8-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/07/lancaster-f-k-jr-os-9282-7-8-11-dual-office-holding.pdf

Original opinion text

ALAN WILSON
ATIORNEY GENERAL

July 8, 2011

F.K. Lancaster, Jr., Interim Director
S.C. Department of Public Safety
PO Box 1993
Blythewood, SC 29016
Dear Mr. Lancaster:
We received Mr. Mark Keel's letter dated June 21, 2011 requesting an opinion of this Office concerning dual office holding. Your office asked whether one would be prohibited "from holding his commission as a State Trooper while simultaneously serving on the WEOC
[Waccamaw Economic Opportunity Council] Board of Directors." Law/Analysis Article XVII, Section 1A 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 a 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). "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." Id., 58 S.E. 762, 763. Other relevant considerations are whether statutes, or other such 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). This Office has previously concluded that "a highway patrolman holds an office for dual office holding purposes." Ops. Atty. Gen. June 21, 1999; November 9, 1982; October 14, 1982. Also, in State v. Bridges, the South Carolina Supreme Court held that "Highway Patrol officers and troopers are 'public officials' within the meaning of section 16-3-1040 of the South Carolina Code of Laws." Bridges, 329 S.C. 11, 15, 495 S.E.2d 196, 199 (1997) (emphasis added). The Court further explained that:

REMBERT

c. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Lancaster
Page 2
July 8, 2011

First, as law enforcement officers, they are charged with the discretionary exercise of the sovereign power. Specifically, the officers and troopers must enforce the "traffic and other related laws." S.C.Code Ann. § 23-6-lOO(A) (Supp. 1996). Second, their positions were created by the Legislature. See id, Third, their duties and powers are established by statute and include accepting money in the form of bail for traffic violations, serving criminal process, and making arrests. See, S.C.Code Ann. §§ 23-6-140 to -150 (Supp. 1996). Finally, each Highway Patrol officer and trooper must file a bond that is conditioned on the faithful performance of his duties. See, S.C.Code Ann. § 23-6-120; see also, S.C.Code Ann. § 8-3-30 (1986) (providing the form of the bond to be given by all public officers). Bridges, 329 S.C. 11, 14 (emphasis added). While this Office has written on the WEOC, 1 we have never addressed whether a position on the WEOC is an office. However, in an opinion of this Office dated April 16, 1968, we discussed a similar organization: The Chesterfield-Marlboro Economic Opportunity Council, Inc. is a non-profit, eleemosynary corporation chartered under the laws of this State. Its funds are primarily derived from the Federal government through the Office of Economic Opportunity with certain contributions coming from 'in kind' use of facilities and personnel furnished by the local government agencies. This agency appears to be a private agency, and membership on the governing body thereof is not, in the opinion of this office, an office within the meaning of the constitutional provision. The duties of the office are not prescribed by the laws of this State, nor do the holders of such offices exercise any portion of the sovereign function of this State. It appears clear that they occupy a position of private concern and are not officers of this State. There would, therefore, appear to be no reason why membership on the council may not be held by one who occupies another office under the laws of this State. Op. S.C. Atty. Gen., April 16, 1968 (emphasis added). Similar to service on the ChesterfieldMarlboro Economic Opportunity Council, it does not appear that service on the WEOC Board of Directors would constitute an office for dual office holding purposes as there is no exercise of sovereign power of the State.

1

Op. S.C. Atty. Gen., October 16, 2006.

Mr. Lancaster
Page 3
July 8, 2011
Conclusion

While serving as a State Trooper would likely be found to be an office for dual office holding purposes, serving on the WEOC Board of Directors would not be considered an office. Therefore, it is the opinion of this Office that there would be no dual office holding violation should one simultaneously serve as a State Trooper and on the WEOC Board of Directors. Sincerely,

ex~ !>la~ J1~
Leigha Blackwell Sink
Assistant Attorney General

REVIEWED AND APPROVED BY:

~'~
Robert D. Cook
Deputy Attorney General