Could one person sit on Hilton Head’s tax advisory committee, Beaufort’s aviation board, and the state tourism review committee?

Plain-English summary

Hilton Head Island asked whether one person could serve on its accommodations tax advisory committee, Beaufort County's aviation board and the state tourism expenditure review committee. The Attorney General said simultaneous service did not violate the constitutional dual-office rule. It treated the state tourism committee as a public office because it exercised state power, but the town tax committee and county aviation board as advisory roles that did not. The letter separately repeated a caution that potential conflicts under the Ethics Act belonged with the State Ethics Commission.

Currency note

This opinion was issued in 2004. 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: Which of the three seats counted as a public office?
A: The AG said the state tourism expenditure review committee did. It said the other two boards did not exercise the sovereign power needed for the dual-office test.

Q: Did taking an oath make the town tax committee seat a second office?
A: The requester said members took an oath, but the AG retained its earlier conclusion that the committee only recommended expenditures and was not a public office.

Q: Did the opinion resolve every ethics conflict from holding the roles together?
A: No. It pointed to the State Ethics Commission for possible Ethics Act issues, separate from the dual-office question.

Background and statutory framework

The office applied the state constitutional rule barring one person from holding two public offices of honor or profit at once. It relied on earlier opinions finding the county aviation board largely advisory and the town tax committee recommendatory, while finding sovereign power in the state tourism review committee. The conclusion assumed no intervening change in those duties or governing provisions.

Citations

• Section 6-4-25
• Section 6-4-35
• Sanders v. Belue
• State v. Crenshaw

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-16-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04june16deloach.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn:R
ATTORNEY G ENERAL

June 16, 2004

Gregory D. DeLoach, Esquire
Legal Department Director I Assistant Town Manager
Town of Hilton Head Island
One Town Center Court
Hilton Head Island, South Carolina 29928
Dear Mr. DeLoach:
The Town ofHilton Head has requested an opinion concerning dual office holding. By way of background, you have provided the following information:
[a] person is a member of the Town of Hilton Head Island's Accommodation Tax Advisory Committee. Membership on the Town Committee is determined by State Code Section 6-4-25. The person is not paid but took an oath as a condition of membership on the Town committee. In addition, the person is a member of the Beaufort County Aviation Board, and is not compensated. The person is also a member ofthe State Tourism Expenditure Review Committee and was appointed via · State Code Section 6-4-35, without compensation. The duties (applicable Town Code, County Code, and State Code sections) of the Town's Accommodations Tax Advisory Committee, the Beaufort County Aviation Board, and the State Tourism Expenditure Review Committee are attached.

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Does membership on the Municipal, County, and State Committee constitute dual office holding? ....

Law I Analysis
Article XVII, § I A of the South Carolina Constitution states that " no person may hold two offices ofhonor or profit at the same time ...," with exceptions specified for an officer in the militia, a member of a lawfully and regularly organized fire department, constable, or a notary public. The South Carolina Supreme Court has held that for this provision to be contravened, a person concurrently mut hold two 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 Jaw 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

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REMBERT C DENNIS BUUDING
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P OST Om cE Box 11549

• COLUMBIA, S.C. 292 1l - 1549 •

TEL.EPHONE: 803-734-3970

• FACSIMILE: 803-253-6283

Mr. DeLoach
Page2
June 16, 2004

occasional or intermittent, is a public officer." Id., 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes or other 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). We have addressed each ofthe positions referenced in your letter in previous opinions, which I enclose for your information. In an opinion of January 15, 2003, we concluded that while membership on the State Tourism Expenditure Review Committee constitutes an office for dual office holding, the position of member of the Town of Hilton Head's Accommodation Tax Advisory Committee does not. As we noted in that opinion, members of the Town of Hilton Head Accommodation Tax Advisory Committee are not charged with exercise of any portion of the sovereign power of the State, but only "make recommendations as to expenditures ofrevenue .... " By contrast, members of the State Tourism Expenditure Review Committee do exercise a portion of the State's sovereign power. Although the earlier opinion concluded that no dual office holding problem would arise by the simultaneous occupation of these two positions, we also cautioned therein with respect to a potential conflict ofinterest in holding the two positions. Accordingly, we recommended contacting the State Ethics Commission to insure that no problem existed under the Ethics Act.

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Regarding the Beaufort County Aviation Board, such position was addressed in an opinion dated October 12, 1990. Following our review of the duties of the Board, we concluded therein that " ... it appears that the Beaufort County Aviation Board is largely advisory in nature and that the actual exercise of sovereign power is carried out by the Beaufort County Council, based on the duties and responsibilities specified in the ordinance." Thus, in our view, "one who serves on the Beaufort County Aviation Board probably would not be considered an office holder for dual office holding purposes." These opinions remain the opinions of this Office. We are unaware of any changes either in State law or in the local ordinances which would alter the conclusions expressed previously therein. Accordingly, simultaneous occupancy of the positions referenced in your letter would not, in our opinion, constitute dual office holding. Very truly yours,

Assistant Deputy Attorney General
RDC/an
Enclosures