Could a McBee town council member also serve on the Chesterfield County Economic Development Board?

Plain-English summary

Chesterfield County asked in 2009 whether one person could serve on the McBee Town Council and the county Economic Development Board. The South Carolina Attorney General concluded that the two roles did not violate the constitutional dual-office prohibition. Town council service counted as an office, but membership on this development board did not.

The board had been created by county ordinance, its members served fixed terms and received a per diem, and it could promote local economic development. The Attorney General nonetheless found its principal function promotional rather than an exercise of state sovereign power, which was central to the office test. The opinion therefore treated board membership differently from a second public office.

Currency note

This opinion was issued in 2009. 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 a McBee Town Council seat a public office?
A: The Attorney General said yes for the state constitutional dual-office analysis.

Q: Did the county development board seat count as a second office? A: No. The opinion said the board did not exercise the state’s sovereign power, despite its ordinance, terms, and per diem.

Q: Could a person serve in both positions under this opinion? A: Yes. Because the board seat was not an office under the test applied, simultaneous service did not violate the dual-office prohibition.

Background and statutory framework

The Attorney General reviewed the county ordinances creating and amending the development board. They described its membership, term, payment, funding, and mission to encourage economic development. The office compared earlier opinions about similar local development boards and applied the constitutional distinction between an office and another public role.

Citations and references

Authorities discussed: South Carolina’s constitutional dual-office provisions and earlier Attorney General opinions on council members and economic development boards.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-5-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Ruffner-H.-6-5-2009-01212382xD2C78.pdf

Original opinion text

June 5,2009

C. Heath Ruffiier, Esquire
Chesterfield County Attorney
Harris, McLeod & Ruffiier
Post Office Drawer 1449

Cheraw, South Carolina 29520
Dear Mr. Ruffiier:

We understand you are the Chesterfield County Attorney and would like to request an opinion on behalfofChesterfield County(the"County")concerning"the issue ofdual office holding by a member ofMcBee Town Council and the Chesterfield County Economic Development Board." Law/Analysis

Article VI, section 3 of the South Carolina Constitution(2009) provides:"No person may hold two offices ofhonor or profit at the same time. This limitation does not apply to officers in the militia, notaries public, members oflawfully and regularly organized fire departments, constables, or delegates to a constitutional convention." In addition, article XVII, section lA of the South

Carolina Constitution(2009) prohibits a person from holding"two offices ofhonor 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." To contravene these provisions,a person concurrently must hold two offices having duties that involve the exercise ofsome portion ofthe sovereign power ofthe State. Sanders v. Belue.78 S.C. 171,174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office,such as,whether a statute,or other such authority,

establishes the position, proscribes the position's duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw. 274 S.C. 475, 477, 266 S.E.2d 61,62(1980).

As for the position on the McBee Town Council("Town Council"), numerous opinions of this Office conclude that a member of a city or town council is considered an office holder for

Rembert C.Dennis Building • Post Ofhce Box 11549 • Columbia,SC 29211-1549 • Telephone 803-734-3970 • Facsimile 803-253-6283

Mr. Ruffner
Page 2

June 5, 2009

purposes of dual office holding. Ops. S.C. Atty. Gen., March 4, 2009; February 26, 2007; May 9, 2006; April 29, 2004. Accordingly, we must determine whether a position on the Chesterfield County Economic Development Board (the "Board") also constitutes an office. Along with your letter, you included a copy ofthe 1 987 ordinance creating the Board and an

ordinance amending the 1 987 ordinance with regard to the composition ofthe Board. As amended, the Board consists of thirteen members, nine of which are appointed by the Chesterfield County Council, one member of each Chamber of Commerce, and the President ofNortheastern Technical College. Chesterfield County, S .C., Ordinance No. 07-08- 1 7. Each member ofthe Board shall serve a two-year term of office and shall receive a per diem for each monthly meeting attended.

Chesterfield County, S.C., Ordinance No. 86-87-06. The ordinance states the purpose of the Board "is to foster and promote the economic development of Chesterfield County" and allows the Board to receive funds from the Chesterfield County Council "and other sources "Id. The ordinance states that the Board "is authorized to adopt policies, procedures, goals, and objectives to carry out the purposes of this Ordinance." Id

As explained above, an ordinance establishes the Board and sets forth qualifications for its members. The Board's members serve a term ofoffice and receive a per diem. However, we do not

believe membership on the Board constitutes an office as we do not believe the Board exercises a portion of the sovereign power of the State. Like we determined in prior opinions issued by this Office considering other local economic development boards, the Board's principal function is promote and encourage economic development. Ops. S.C. Atty. Gen., June 1, 2005; November 7,

2003; March 19, 2003. In those opinions, as well a several others, we concluded that membership other economic development boards with similar composition and authority did not amount to an

office for purposes of dual office holding. Ops. S.C. Atty. Gen., June 1, 2005 (Bamberg City Economic Development Board); May 21, 2004 (Barnwell County Economic Development Board); November 7, 2003 (Allendale County Development Board); March 19, 2003 (Hampton County Economic Development Board); February 24, 2000 (Bamberg County Development Board); May 6, 1992 (Dorchester County Economic Development Board); January 31, 1985 (Marlboro County Development Board). Accordingly, we do not believe a position on the Board constitutes an office. Conclusion

Although we believe serving on Town Council constitutes an office for purposes of dual office holding, we do not believe a position on the Board is an office. As such, we opine that

Mr. Ruffher

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June 5, 2009

simultaneous service in both of these positions does not violate the constitutional prohibitions on dual office holding. Very truly yours, Henry McMaster

Attorney General

By:

Cydney M. Milling

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook

Deputy Attorney General