Could a Lee County auditor also serve as a nonvoting adviser to the county archives commission?

Plain-English summary

Lee County's auditor asked whether joining the county Archives Commission as a nonvoting advisory member would violate South Carolina's constitutional ban on holding two offices at once. The 2016 AG concluded that it would not. The opinion regarded the county auditor as an office, but found that the described advisory position was not one.

The AG distinguished the appointed commission board members from its extra nonvoting advisers. It found no specified term, assigned service, compensation, or oath for the adviser, and said advisory members did not exercise a portion of the state's sovereign power. Its answer depended on the role described to the office.

Currency note

This opinion was issued in 2016. 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 the county auditor already a public officer?
A: Yes. The AG reaffirmed its earlier view that a county auditor exercised sovereign power and held an office for the dual-office rule.

Q: Did appointment to the archives commission automatically create a second office?
A: No. The opinion examined the particular nonvoting advisory seat and found that it lacked the hallmarks of an office.

Q: Would the same answer apply to a voting commissioner?
A: The opinion did not decide that. It addressed the extra nonvoting advisory position described in the request.

Background and statutory framework

The opinion applied Article XVII, Section 1A of the state constitution and South Carolina cases' office-holding factors. Lee County's ordinance allowed a commission of five to seven members plus up to two nonvoting advisers. The AG viewed the advisory seat as analogous to advisory bodies it had previously found outside the dual-office prohibition.

Citations and references

• The AG said the advisory members did not appear to “serve for a specified term, conduct a specified service, are compensated for service, or are required to take an oath.”
• It concluded the advisory seat “would not prohibit simultaneous service as auditor for Lee County.”
• Source: South Carolina Attorney General, June 1, 2016.

Official title

Regarding whether simultaneous service as auditor for Lee County and as a non-voting advisory member of the Lee County Archives Commission would violate our State’s Constitutional prohibition against dual office holding.

Requester

The Honorable Cecil LaVear Stevens, Lee County Auditor, Senior Official, Lee County Court House.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-1-2016/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/06/Stevens-C.-OS-9959-FINAL-Opinion-6-1-2016-01022628xD2C78.pdf

Original opinion text

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Alan Wilson
attorney General

June 1, 2016

The Honorable Cecil LaVear Stevens
Lee County Auditor, Senior Official
Lee County Court House
Post Office Box 241
Bishopville, South Carolina 29010
Dear Auditor Stevens,
You have requested the opinion of this Office as to whether simultaneous service as auditor for Lee County and as a non-voting advisory member of the Lee County Archives

Commission would violate our State's Constitutional prohibition against dual office holding. Based on the analysis below, we do not believe that it would. Law / Analysis

Article XVII, Section 1 A of the South Carolina Constitution states that "[n]o person may hold two offices of honor or profit at the same time . . ." with the exception that individuals

serving as officers in the militia, a member of a lawfully and regulated organized fire department, constable, or notary public may hold an additional office. A person not falling into this exception would violate the dual office holding prohibition by concurrently serving in two

offices "involving an exercise of some part of the sovereign power [of the State], either small or great, in the performance of which the public is concerned. . . ." Sanders v. Belue. 78 S.C. 171,

174, 58 S.E. 762, 763 (1907).

It has been said that the public policy behind the dual office

holding prohibition is "to prevent public officials from acting in circumstances in which their personal interests conflicts with the public whose interest they have been elected to represent." 63C Am. Jur. 2d Public Officers and Employees § 63 (2014) (citing Dvkeman v. Svmond. 54 A.D.2d 159, 388 N.Y. S.2d 422 (NY 4th Dep't 1976)).

In considering whether a particular position is an office in the constitutional sense, South Carolina courts look to whether "[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). More specifically, our Supreme Court has clarified that the criteria to be considered includes "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." State v. Crenshaw. 274 S.C. 475, 478, 266
-S.E.2d 61, 62 (1980).

However, it has also been determined that "no single criteria is

conclusive" and it is not "necessary that all the characteristics of an officer or officers be present." Id. (citing 67 C.J.S. Officers § 8(a) (1978)).

Rembert C. Dennis Building

•

Post Office Box 1 1 549 . • Columbia, SC 292 11-1 549

• Telephone 803-734-3970

• Facsimile 803-253-6283

The Honorable Cecil LaVear Stevens
Page 2
June 1, 2016

On many occasions, this Office has advised that a county auditor holds an office for purposes of dual office holding.

See,

On. S.C. Att'v Gen.. 2005 WL 2652384 (Sept. 26,

2005); On, S.C. Att'v Gen.. 2002 WL 1340434 (May 28, 2002); On. S.C. Att'v Gen.. 1980 WL

121132 (March 31,1 980). As we explained in our September 26, 2005 opinion:

The powers and duties of a county auditor are set forth in part in S.C. Code Ann.
§§ 12-39-10 to 12-39-350 of the Code. These powers and duties clearly involve an exercise of a portion of the sovereign power of the State.

Therefore, the

position of county auditor is clearly an office for dual office holding purposes. Qp. S.C. Att'v Gen.. 2005 WL 2652384 (Sept. 26, 2005).

As this remains the opinion of this

Office, we turn to a question we have never addressed: whether serving as a non-voting advisory member for the Lee County Archives Commission would constitute an office for dual office holding purposes. Based upon the information you have provided to this Office, it is our understanding that the Lee County Archives Commission was established by Ordinance of the Lee County Council on January 26, 2016. See Lee County, S.C., Ordinance 10-15 (Jan. 26, 2016).

Pursuant to the

"By Laws" passed as a part of the Ordinance, the Commission consists of a Board of

Commissioners to be made of five to seven members, with as many as two additional non-voting advisory members. Id. at § II. Such members are appointed by the Lee County Council on an at large basis to serve for a term of four years. Id. However, two members of the initial board will serve a two year term. Id The members of the Commission elect officers from their membership

consisting of a chairman; vice chairman; and a secretary and treasurer, whose roles can be combined. Id at § III.

The general duties of each of these roles are prescribed within the

Ordinance. Id.

As mentioned above, it is our understanding that the role you have asked us to consider is a position on the Commission as a non-voting advisory member.

In our review, it does not

appear non-voting advisory members of the Commission serve for a specified term, conduct a specified service, are compensated for service, or are required to take an oath. Thus, due to the lack of factors set forth above indicating the existence of an office for dual office holding, we believe service as a non-voting advisory member for the Lee County Archives Commission would not be considered an office for dual office holding purposes.

.

Furthermore, prior opinions of this Office have determined that 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. Att'v Gen.. 2006 WL 1 877 113 (June 1 , 2006) (S.C. Education and Economic Development Advisory Board); Op. S.C. Att'v Gen.. 2004 WL 439320 (February 24, 2004) (Beaufort County Solid Waste and Recycling Board); Op. S.C. Att'v Gen.. 2003 WL 21040133 (January 15, 2003) (Town of Hilton Head Accommodations Tax Advisory Committee); Op. S.C. Att'v Gen.. 2001 WL 265251 (February 27, 2001) (legal advisory board for the Department of Natural Resources); Op. S.C. Att'v Gen.. 2000 WL

33120657 (December 1, 2000) (local drought response committee); On. S.C. Att'v Gen.. 1987 WL 245509 (December 14, 1987) (Children's Foster Care Review Board).

The Honorable Cecil LaVear Stevens
Page 3
June 1, 2016

While you are serving as an advisory member of the Commission rather than on an advisory board or committee like the above cited opinions, we believe the outcome, for purposes of dual office holding, is analogous. Accordingly, it is our opinion that service as a non-voting member of the Lee County Archive Commission would not constitute as an office for dual office holding purposes. It follows that service in such position would not prohibit simultaneous

service as auditor for Lee County.

Very truly yours,

Anne Marie Crosswell
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Solicitor General