Could one person serve on North Myrtle Beach’s zoning appeals board and the Horry County Higher Education Commission?

Plain-English summary

The South Carolina Attorney General's office concluded in 1999 that a person could not simultaneously serve on the City of North Myrtle Beach Board of Zoning Appeals and the Horry County Higher Education Commission. It treated both posts as public offices for the state constitution's dual-office prohibition.

The education commission had statutory powers to contract, adopt rules, acquire property, and operate higher-education programs. Earlier AG opinions had already treated its members as public officers. The office also considered the zoning board's power to hear and decide citizens' appeals and special-exception requests an exercise of state sovereign power. Because both positions met the public-office test, concurrent membership would violate the constitutional restriction. The letter addressed the offices' status, not an identified person's conduct or the legal effect of any past board decision.

Currency note

This opinion was issued in 1999. 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 seat on the Horry County Higher Education Commission a public office under the opinion? A: Yes. The office cited its earlier conclusion and the commission's statutory powers involving an exercise of sovereign authority.

Q: Why did zoning appeals board service count as an office? A: The letter pointed to the board's power to hear and decide appeals and special-exception requests under zoning rules, paralleling earlier opinions about other zoning boards.

Q: Did the opinion allow one person to hold both positions? A: No. It concluded that concurrent service would violate the state constitution's dual-office holding provision.

Background and statutory framework

The requester asked about combining two specified local appointments. The office applied Article XVII, Section IA of the South Carolina Constitution and the public-office test in Sanders v. Belue: continuing duties involving an exercise of sovereign power. It also considered statutory creation and assigned powers for each position. This was an informal opinion by the signing deputy attorney general, not one personally reviewed or officially published by the Attorney General.

Citations and references

• Constitution: Article XVII, Section IA, quoted as prohibiting two offices of honor or profit at once, subject to stated exceptions.
• Public-office test: Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907), quoted in the letter.
• Education commission: Act No. 114, 1959 Acts and Joint Resolutions, as amended, and Section 3 of Act 131 of 1963, discussed for its creation and powers.

Official title

Asking whether a dual office holding situation exists if a member of the City of North Myrtle Beach Board of Zoning Appeals simultaneously serves on the Horry County Higher Education Commission.

Requester

The Honorable Liston D. Barfield, Chairman, Horry County Legislative Delegation

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-16-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99march16barfield.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M . CONDON
ATTORNEY GENERAL

March 16, 1999

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The Honorable Liston D. Barfield
Chairman, Horry County Legislative Delegation
Post Office Box 1236
Conway, South Carolina 29528
RE: Informal Opnion
Dear Representative Barfield:
By your letter of March 1, 1999, you have asked whether a dual office holding situation would exist if a member of the City of North Myrtle Beach Board of Zoning Appeals were to simultaneously serve on the Horry County Higher Education Commission. As you know, 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 contravened, a person concurrently must 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 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."

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Representative Barfield
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March 16, 1999
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).

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The Horry County Higher Education Commission (the "Commission") was created by Act No. 114, 1959 Acts and Joint Resolutions, as amended. The Commission was empowered to enter into contracts with institutions of higher learning to operate a school or schools of higher learning in Horry County. Powers and duties are specified in Section 3 of Act 131 of 1963 and include the powers to sue and be sued, to adopt and use a corporate seal, to adopt rules and regulations, to enter into contracts and leases, to acquire real and personal property, and so forth. Prior opinions of this Office have consistently held that powers such as these clearly involve an exercise of some portion of the State's sovereignty. See, e.g., Ops. Afty. Gen., January 27, 1976; January 9, 1992; and December 14, 1995. Moreover, by an opinion of this Office dated May 28, 1959, "[m]embers ... of the Horry County Higher Education Commission are officers and are, therefore, subject to the dual office holding provision of our State Constitution." (Emphasis added.) Thus, having concluded that the Horry County Higher Education Commission is an office within the meaning of Art. XVII, Sec. IA, it is necessary, then, to address whether service on the North Myrtle Beach Zoning Appeals Board would likewise constitute an office. Apparently, this Office has not previously considered whether membership on the North Myrtle Beach Zoning Appeals Board would constitute an office for dual office holding purposes. We have determined, however, that members of other Zoning Appeals Boards are officers. See, e.g., Ops. Any. Gen., January 27, 1976 (Georgetown County Zoning Appeals Board); and May 2, 1977 (City of Greenville Zoning Appeals Board). In these earlier opinions, we held that the power to hear and decide appeals made by citizens asking for special exceptions to certain zoning requirements involved an exercise of some part of the State's sovereign power. Therefore, in accord with our previous rulings, a member of the City of North Myrtle Beach Board of Zoning Appeals would hold an office for dual office holding purposes. Morever, concurrent membership on the Horry County Higher Education Commission and the City of North Myrtle Beach Board of Zoning Appeals would violate the South Carolina Constitution's dual office holding provisions. This letter is an informal opinion. It has been written by the designated Deputy Attorney General and represents the opinion of the undersigned attorney as to the specific question asked. It has not, however, been personally reviewed by the Attorney General nor officially published in the manner of a formal opinion.

Representative Barfield
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March 16, 1999
With kind regards, I am
Sincerely yours,

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Zeb C. Williams, III
Deputy Attorney General

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