Could one person serve on both Dorchester County Water Authority and South Carolina’s transportation commission?

Plain-English summary

A senator asked whether one person could sit on both the Dorchester County Water Authority and South Carolina Department of Transportation Commission. The 2016 AG predicted that a court would treat both seats as public offices and therefore find simultaneous service to be prohibited dual office holding.

The office had already treated a transportation commissioner as an office holder. For the water authority, it pointed to the legislature's creation of the body, fixed appointments and terms, and powers such as setting water rates, contracting, borrowing, and exercising eminent domain. Those features showed continuing public duties and sovereign power despite members receiving no salary.

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: Did the lack of salary keep the water authority seat from being a public office?
A: No. The AG focused on the authority's legally assigned public powers and the board's continuing duties.

Q: Was the transportation commissioner seat also an office?
A: The opinion relied on an earlier AG conclusion that a transportation commissioner was an office holder.

Q: What was the answer for holding both seats at once?
A: The AG predicted a court would find prohibited dual office holding.

Background and statutory framework

South Carolina's constitutional rule barred one person from holding two offices of honor or profit at the same time, subject to its stated exceptions. The opinion applied the public office criteria to the authority's statutory creation and powers, then paired that conclusion with the earlier classification of DOT commission service.

Citations and references

• The opinion stated: “Our opinion is that members of the Authority are public officers.”
• Its conclusion predicted that service on both bodies “would constitute dual office holding.”
• Source: South Carolina Attorney General, June 21, 2016.

Official title

Regarding whether serving on both the Dorchester County Water Authority and the Department of Transportation Commission would constitute dual office holding.

Requester

The Honorable Sean M. Bennett, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-21-2016-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/06/Bennett-S.-OS-10018-FINAL-Opinion-6-21-2016-01037730xD2C78.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

June 21, 2016

The Honorable Sean M. Bennett, Member
South Carolina Senate
121 S. Cedar Street

Summerville, SC 29483
Dear Senator Bennett:

We have received your opinion request regarding dual office holding.

Specifically, you ask whether

serving on

Department

both

the

Dorchester County

Water

Authority and

the

of Transportation

Commission would constitute dual office holding.

LAW/ANALYSIS:

Dual office holding is defined by the South Carolina Constitution, which 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. . .

The limitation above set forth does not prohibit any officeholder from

being a delegate to a constitutional convention." S.C. Const, art. XVII § 1 A.

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is: "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." Sanders v. Belue. 78 S.C. 171, 174, 58 S.E. 762, 763 (1907). "In considering whether a particular position is an office in the constitutional sense, it must be demonstrated that "[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).

"The powers conferred and the duties to be discharged with

regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority..." 63C Am Jur.2d Public Officers and Employees § 5 (2009). Segars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E. 2d 453 (2010). "Other

relevant considerations [as to whether a position is a public office] 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

Rembert c. Dennis Building

.

Post Office Box 1 1 549

. Columbia, SC 2921 1-1549

. Telephone 803-734-3970

.

Facsimile 803-253-6283

The Honorable Sean M. Bennett
Page 2

June 21, 2016

representative of the sovereign; among others.'"

See Op. S.C. Attv. Gen.. June 17, 2013 (2013 WL

3243063) (quoting State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61,62 (1980)). A member of the Department of Transportation Commission is a public officer.

In a prior opinion, we

determined:
[o]ne who would serve as a Commissioner of the

Department of

Transportation would be considered an office holder for dual office

holding puiposes. See Ops. Attv. Gen, dated May 4, 1993, February 21, 1990 and March 27, 1984.

Op. S.C. Attv. Gen.. December 5, 1997 (1997 WL 81 1910).

The issue is whether a member of the Dorchester County Water Authority is an officer. The Dorchester County Water Authority ("Authority") was created by 1965 S.C. Acts 588.

The Act provides for the

Authority having five members. The members must be resident electors of Dorchester County and are appointed by the Governor, upon the recommendation of a majority of the members of the Dorchester County Legislative Delegation, for terms of six years.

The members do not receive compensation, but

they can be reimbursed for expenses incurred in connection with the business of the Authority. In order to acquire, construct, operate, maintain, improve and extend facilities which would enable it to

obtain fresh water in large volume and to distribute it, the Authority is granted certain powers, such as:

to sue and be sued; to build, construct, maintain, and operate canals, aqueducts, ditches, tunnels, culverts,

flumes, conduits, mains, pipes, dikes, dams, and water reservoirs; to build, construct, maintain, and operate water distribution systems and to enlarge and extend such systems; to sell water for industrial or

domestic use; to prescribe rates and regulations under which water will be sold; to enter into contracts; to acquire by purchase, gift or through the exercise of eminent domain, all land, easements, and rights of

way necessary to discharge all functions committed to it; to exercise the power of eminent domain for any corporate function; to borrow money and to make and issue negotiable bonds and notes payable from all or any part of the revenues derived from the operation of its facilities; and to do all other acts and things necessary or convenient to carry out any function or power granted to the Authority.

Furthermore, the rates charged by the Authority are not subject to supervision or regulation by the State or its agencies.

Our opinion is that members of the Authority are public officers. The Legislature created the Authority and its members and provided for the appointment of the members, their qualifications, their terms of office; their payment of expenses, and their duties. With the duties granted, the members appear to be exercising the sovereign power of the State. This supplements our June 26, 1980 opinion, in which we determined that:

[i]n response to your request for an opinion from this Office as to whether or not an individual who is the chairman of the Dorchester County Water Authority and also a director of the Old Fort Fire District is in violation of the constitutional prohibition against dual officeholding,

The Honorable Sean M. Bennett
Page 3
June 21, 2016

my opinion is that he is. 1 am enclosing a copy of an earlier opinion

concluding that membership on the governing body of a statutorily-

created special purpose district constitutes office-holding.
Op. S.C. Attv. Gen.. June 26. 1980 (1980 WL 120752).

CONCLUSION:

In conclusion, this Office believes that a Court would determine that service on both the Dorchester County Water Authority and the Department of Transportation Commission would constitute dual office holding.

Sincerely,
Y '

o
Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
Solicitor General