Did service on a South Carolina regional education center advisory board count as a public office in 2006?

Plain-English summary

In 2006, the South Carolina Attorney General concluded that membership on a regional education center advisory board under the Education and Economic Development Act did not count as a public office for the state's dual office holding rule. A member could therefore also serve as an officer in another capacity without violating that rule on account of the advisory seat.

The statute provided for appointments by local legislative delegations and described the kinds of people who should serve. It did not give the board sovereign powers or specify member duties, terms, pay, or an oath. The office also relied on earlier opinions treating advisory positions as distinct from public offices.

Currency note

This opinion was issued in 2006. 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: Did legislative appointment alone make the advisory seat an office?
A: No. The opinion considered the seat's powers and other features and found it was not an office.

Q: Did the board exercise state sovereign power?
A: The office found no such power in the provision it reviewed and described the body as advisory.

Q: Could a member hold a separate public office?
A: The opinion said advisory board membership did not prohibit service as an officer elsewhere under the dual office rule.

Background and statutory framework

The opinion examined the 2005 act's regional education center structure and the constitutional dual office test. It compared the board's limited statutory description to positions carrying governmental authority.

Citations and references

The linked opinion quotes the regional board provision and South Carolina's constitutional dual office rule.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-1-2006-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06jun1ken.pdf

Original opinion text

HENRY MCMASTER
ATfORNEY GENERAL

June 1, 2006

The Honorable Ken Clark
Member, House of Representatives
314-D Blatt Building
Columbia, South Carolina 29211
Dear Representative Clark:
We understand from your letter you desire an opinion as to the impact of the dual office holding prohibition on the an advisory board created by the South Carolina Education and Economic Development Act ("EEDA"). Specifically, you ask: "Are the EEDA Regional Education Center (REC) Advisory Board legislative appointments impacted by the Duel Office Holding mandates?"

Law/Analysis

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In 2005, the Legislature passed the EEDA, which for the most part charges the South Carolina Department of Education with developing a curriculum "organized around a career cluster system that must provide students with both strong academics and real-world problem solving skills''
?fld lays responsibility with local school districts for the implementation of the curriculum. S.C. Code Ann. § 59-59-20 (Supp. 2005). As part of this legislation, the Education and Economic Development Council, also created by the EEDA, shall designate regional education centers to coordinate and facilitate career development activities provided under the EEDA. Section 59-59lSO(D) ofthe South Carolina Code (Supp. 2005) states: "The Education and Economic Development Coordinating Council, in consultation with the Department of Education, shall provide oversight to the regional centers, and the centers shall provide data and reports that the council may request." Additionally, section 59-59-1 SO(E)( l) of the South Carolina Code (Supp. 2005) states: Each regional center shall have an advisory board comprised of a school district superintendent, high school principal, local workforce investment board chairperson, technical college president, four-year college or university representative, career center director or school district career and technology education coordinator, parent-teacher organization representative, and business and civic leaders. Appointees must reside or do business in the geographic area of the center. Appropriate local legislative delegations shall make the appointments to the regional center boards.

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The Honorable Ken Clark
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June 1, 2006

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We gather from your letter, you wish to know whether members of the advisory board described in section 59-59-180(E)( 1) are office holders for dual office holding purposes. Article XVII, section IA of the South Carolina Constitution (Supp. 2005) prohibits a person from holding "two offices of honor or profit at the same time." Over the years, our Supreme Court has provided some guidance as to what constitutes a public office for dual office holding purposes. In Sanders v. Belue, 78 S.C. 171, 174, 58 S.E. 762, 763 (1907), the Court determined one who exercises the sovereign power of the State holds a public office. The Court provided further guidance in State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61, 62-63 (1980), finding whether statutes, or other such authority, established the position, prescribe its tenure, duties or salary, or required qualifications or an oath for the position to be other relevant considerations for determining whether a person holds a public office. In our review of the EEDA, we only found reference to the REC advisory boards in section 59-59-180(E)(l). This provision establishes the board and instructs board members are to be appointed by local legislative delegations. S.C. Code Ann. § 59-59-180(E)(l ). In addition, it states who shall comprise the board and mandates appointees reside or do business in the geographic area of the center. Id. However, this provision does not establish a term of service or compensation for service on the board. Moreover, the statute does not provide for the powers or responsibilities to be carried out by the board and makes no mention of an oath requirement. These factors indicate under the Supreme Court's opinions in Sanders and Crenshaw, the board members are not officers for dual office holding purposes.

Furthermore, prior opinions of this Office determined members of advisory bodies are not officers for dual office holding purposes because they are not deemed to exercise a portion of the sovereign power of the State. See Op. S.C. Atty. Gen., February 24, 2004 (Beaufort County Solid Waste and Recycling Board); January 15, 2003 (Town of Hilton Head Accommodations Tax Advisory Committee); February 27, 2001 (legal advisory board for the Department of Natural Resources);December 1,2000(droughtresponsecommittee); December 14, 1987 (Children's Foster Care Review Board). In addition to the statute failing to indicate any sovereign power afforded to the advisory board, the statute indicates the board is advisory in nature. Thus, in keeping with our prior opinions, we find members of the advisory board created by section 59-59-l 80(E)(l) are not officers for dual office holding purposes. Therefore, we do not believe their membership the REC advisory board would prohibit their service as an officer in another capacity. Very truly yours,

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Cydn~ M.r Jming

Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
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Assistant Deputy Attorney General

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