Can one person serve on Union County's alcohol-and-drug commission and the City of Union election commission?

Plain-English summary

In 2013, South Carolina's Attorney General said one person could not simultaneously serve on the Union County Commission on Alcohol and Drug Abuse and the City of Union Municipal Election Commission. Earlier AG opinions had classified county alcohol-and-drug commission members and municipal election commissioners as public officers. Holding both seats therefore violated the state constitution's dual-office provision.

The requester also raised an ethics concern. The AG said questions about violations of the State Ethics Act belonged with the State Ethics Commission and did not decide that separate issue.

What this means for you

Members of the two named commissions

The opinion treats both positions as public offices for dual-office purposes. It says one person cannot hold the Union County alcohol-and-drug seat and City of Union election seat at the same time.

Appointing officials

The AG's conclusion rests on the public powers of the two positions as classified in earlier opinions. The opinion does not decide the status of every county health or municipal advisory board.

People raising ethics complaints

The AG expressly sent questions under the State Ethics Act to the State Ethics Commission. The constitutional dual-office answer does not resolve an ethics-law violation.

Currency note

This opinion was issued in 2013. Later statutes, decisions, or opinions may have changed the analysis. Verify current law before relying on this historical interpretation.

Common questions

Q: Could one person hold both named commission seats?
A: The AG said no. Both counted as public offices, triggering the constitutional dual-office ban.

Q: Is an unpaid board seat automatically outside the ban?
A: The opinion applies a public-office test based on legally conferred public powers and relied on earlier opinions classifying the two seats. It did not make pay the deciding factor.

Q: Did the AG find an ethics violation?
A: No. It said State Ethics Act questions should go to the State Ethics Commission.

Background and statutory framework

A state senator asked about a constituent serving on the county substance-abuse commission and the city's election commission. The AG quoted South Carolina's constitutional prohibition and the public-office test, then applied its prior classifications of each commission seat.

Citations and references

• The South Carolina Constitution's dual-office provision: prohibition on simultaneous public offices quoted in the opinion.
• State Ethics Act: the AG referred ethics-law questions to the State Ethics Commission.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-17-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/06/martin-s-os-9611-6-17-13-dual-office-holding.pdf

Original opinion text

ALAN WILSON

A TIORNEY GENERAL

June 17, 2013

The Honorable Shane Ma1tin
Senator, District No. 13
Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Martin,
You seek an opinion as to whether State law prohibits an individual from simultaneously serving as a member of the Union County Commission on Alcohol and Drug Abuse and as a member of the City of Union Municipal Election Commission. By way of background, you inform us that a constituent has contacted you and expressed concern that this individual's dual service violations an ethics rule.

Law/Analysis
As a threshold matter, we note that any questions as to violations of the State Eth ics Act, S.C. Code §§ 8-13-100 et seq., should be referred to the State Ethics Commission. With that being said, Article XVII,§ I A of the South Carolina Constitution provides that " [n]o person may hold two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public." For a violation of this provision to occur, an individual must concurTently hold two public offices which have duties "involving an exercise of some pa1t of the sovereign power'· of the State. Sanders v. Belue, 78 S.C. 171 , 174, 58 S.E.2d 762, 763 (1907). A public officer is " [o]ne who is charged by law with duties involving an exercise of some part of the sovereign power, either great or small, in the performance of which the public is concerned, and which are continuing, and not occasional intermittent, is a public officer." Id., 58 S.E.2d at 762-63. Other relevant considerations include: "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). As we stated in a previous opinion, "[t]his office has consistently opined that board members of county commissions on alcohol and drug abuse, including that of Union County, are public officers for purposes of dual office holding." Op. S.C. Att'y Gen., 2011 WL 612035 (Nov. 15, 2011) (citations omitted). In addition, we have advised on numerous occasions that members of county or municipal election commissions also hold such an office. See Ops. S.C. Att'y Gen., 2006 WL 1207267 (April I 0, 2006); 2004 WL 3058235 (Dec. 15, 2004). Consistent with these prior opinions, we believe Article

REMBERT C. DENNIS B UILDING

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POST 0FACE Box 11549

• COLUMBIA SC 29211 -1549 • TELEPHONE 803 734 3970
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ACSIMILE 803-253-6283

The Honorable Shane Martin
Page 2
June17, 2013
XVII, § IA prohibits an individual from simultaneously serving on the Union County Commission on Alcohol and Drug Abuse and the City of Union Municipal Election Commission.

Assistant Attorney General
REVIEWED AND APPROVED BY:

~aG:,)-z:c

Robert D. Cook
Deputy Attorney General

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