Could one person serve on Berkeley County's zoning appeals board and Hanahan's election commission in 2000?

Plain-English summary

Jack Stahl asked whether he could serve on the Berkeley County Zoning Appeals Board and the Hanahan Municipal Election Commission at the same time. The June 2000 AG opinion said both positions were public offices for South Carolina's dual-office prohibition, so simultaneous service would violate it. The letter relied on earlier AG opinions classifying zoning appeals members and election commissioners as officeholders.

The opinion said accepting a second covered office automatically vacated the first. A person could still perform duties of the earlier office as a de facto officer until a successor was selected. It described those acts as generally valid toward the public and third parties unless a court declared them void or removed the person.

Currency note

This opinion was issued in 2000. 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: Why did the AG classify both seats as offices?
A: The office applied the constitutional test for continuing governmental authority and cited earlier opinions treating zoning appeals members and municipal election commissioners as officeholders.

Q: Which office became vacant?
A: The one the person held first. The opinion said the vacancy arose automatically when the second covered office was assumed.

Q: Were all actions in the earlier office immediately invalid?
A: No. The AG said de facto acts generally remained valid toward the public and third parties unless a court ruled otherwise.

Background and statutory framework

The letter applied Article XVII, Section 1A of the South Carolina Constitution and cited Sanders v. Belue and State v. Crenshaw for the public-office inquiry. Its vacancy discussion distinguished full legal title to an office from temporary de facto performance of its duties.

Citations and references

• Article XVII, Section 1A, South Carolina's dual-office prohibition.
• Sanders v. Belue and State v. Crenshaw, cited on what constitutes a public office.

Official title

Asking whether a dual office holding situation exists if a member of the Berkeley County Zoning Appeals Board simultaneously serves as a member of the Hanahan Municipal Election Commission.

Requester

Jack E. Stahl

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-8-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00june8stahl.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE C O NDON
ATIORNEY GENERAL

June 8, 2000

Mr. Jack E. Stahl
Post Office Box 60815
North Charleston. SC 29419
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Dear Mr. Stahl:
By your letter of June 3. 2000 you have asked vvhether a dual office holding situation would exist if you were to serve simultaneously as a member of the Berkeley County Zoning Appeals Board and as a member of the Hanahan Municipal Election Commission . For the reasons set forth below. it is my opinion that concurrent service in these positions would violate the South Carolina Constitution· s prohibition against dual office holding. Article XVII. Section IA of the South Carolina Constitution. provides that ··no person may hold two offices of honor 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. As concluded by Attorney General Daniel McLeod in an opinion dated April 26, 1977. ··[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula .·· The South Carolina Supreme Court, though. has held that for this provision to be contra\ ened. a person concurrently must hold two offices \Vhich 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 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 o fficer." Id .. 78 S.C. at 174. Other relevant considerations. as identified by the Court. are \ hethcr statutes. or other authority. establish the position. prescribe its tenure. duties or sa lary. or re4uire qua Ii ficat ions or an oath for the position. State v. Crenshaw, 274 S.C. 475. 266 S. E. 2d 61 ( 1980). This Office has concluded on numerous occasions that members of zoning appeals boards are officers. See, e.g. , Ops. Atty. Gen. dated March 16. 1999 (City of North Myrtle

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Mr. Jack E. Stahl
Page 2
June 8. 2000

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Beach Zoning Appeals Board); January 27, 1976 (Georgetown County Zoning Appeals Board); and May 2, 1977 (City of Greenville Zoning Appeals Board). Therefore. having determined that service on a zoning appeals board is an office within the meaning of Art. XVII. Sec. lA. it is necessary. then. to address whether membership on a municipal election commission would like\vise constitute an office. Once again. reference to this Office· s earlier opinions are instructive. We have previously advised that members of county and municipal election commissions would be considered office holders for dual office holding purposes. See. e.g., Ops. Atty. Gen. dated February 23, 1995 (City of Bishopville Election Commission); September 12, 1990 (Florence County Election Commission); and July 24, 1980 (City of Greenville Election Commission). Therefore, it is my opinion that a member of the Berkeley County Zoning Appeals Board could not simultaneously serve on the Hanahan Municipal Election Commission without contravening the dual office holding prohibitions of the State Constitution.

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As I mentioned during our recent conversation. when a dual office holding situation occurs, the law operates automatically to "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall \vithin the purvie\v of Article XVII, Section 1A of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office held. Thus, the la\v operates automatically to create a vacancy in that first office. However. the individual may continue to perform the duties of the previously held office as a de facto officer, 1 rather than de jure. until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See Walker v. Harris, 170 S.C. 2.+2 ( 1933 ): Dove v. Kirkland. 92 S.C. 3 13 ( 1912): State v. Coleman. 5.+ S.C. 282 (1898 ): State v. Buttz, 9 S.C. 156 (I 877). Furthermore. actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State ex rel. Mcleod v. Court of Probate of Colleton Countv. 266 S.C. 279, 223

: A de jure officer is "one who is in all respects legally appointed and qualified to exercise the office." 63 .-\m.Jur.2d Public Officers and Emplovecs ~.+95. :.de facto officer is "one who is in possession of an office. in good faith. entered by right. claiming to be entitled thereto, and discharging its duties under color of authority." Hev\vard v. Long. 178 S.C. 35 L 183 S. E. I.+5. 151 ( 1936); see also Smith \'. Citv Council of Charleston, l 98 S.C. 313. 17 S.E.2d 860 (I 9.+2) and Bradford v. Bvmes. 22 l S.C. 255, 70 S.E.2d 228 ( 1952).

Mr. Jack E. Stahl
Page 3
June 8, 2000
S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Strob. 92 (S.C. 1848). I trust this information is responsive to your inquiry and that you will not hesitate to contact me if I can be of additional assistance. Sincerelv

• .vours.

Zeb C. Williams, III
Deputy Attorney General
ZCW/an
cc: D. Mark Stokes. Esq.
Berkeley County Attorney

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