Could one person serve on the Hampton County economic development and Lowcountry workforce boards?

Plain-English summary

Hampton County's attorney asked whether one person could sit on both the county economic development board and the Lowcountry Workforce Investment Board. The Attorney General concluded in 2003 that the combination did not violate South Carolina's constitutional prohibition on holding two offices at once.

The opinion used two lines of reasoning. Prior AG opinions had found that comparable economic development boards were not public offices, though this opinion had not examined Hampton County's specific enabling authority. Even assuming the county seat was an office, the AG said the workforce board arose from a federal program, with no identified South Carolina statute or county ordinance adding state-law powers. The office had consistently treated federally established positions as outside the state constitutional ban.

Currency note

This opinion was issued in 2003. 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 AG find simultaneous service on these two boards unconstitutional? A: No. Based on the facts supplied, it concluded the appointments would not constitute dual office holding.

Q: Did the AG decide definitively that the Hampton County board seat was not an office? A: No. It cited decisions about similar economic development entities but said it had not examined this board's particular authority and duties.

Q: Why did the workforce board matter to the analysis?
A: The AG described it as created under the federal Workforce Investment Act, with no identified state statute or county ordinance conferring additional powers. Its earlier opinions treated federal-law positions as outside the state dual-office rule.

Background and legal framework

Article XVII, § 1A prohibited simultaneous holding of two offices of honor or profit. The opinion used Sanders v. Belue and State v. Crenshaw to describe the inquiry into sovereign power, legal creation, duties, qualifications, pay, and oaths. It cited the federal Workforce Investment Act, PL 105-220, for the local workforce board's origin and responsibilities.

Citations and references

• Article XVII, § 1A: South Carolina constitutional dual-office provision discussed by the AG.
• PL 105-220: federal law under which the opinion said the workforce board arose.
• Sanders v. Belue and State v. Crenshaw: cases used to identify characteristics of a public office.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-19-2003-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03march19solomons.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
ATIDRNEY GENERAL

March 19, 2003

A. G. Solomons, Jr., Esquire
Hampton County Attorney
P. 0. Box 969
Estill, South Carolina 29918
Dear Mr. Solomons:
As Hampton County Attorney, you have asked for an opinion regarding dual office holding. By way of background, you provide the following information:
[w]e have an individual who has been appointed by Hampton County Council to the Hampton County Economic Development Board. This Board meets regularly to discuss industrial prospects for the County and for other economic development reasons. The individual is also seeking appointment by Hampton County Council to the Lawcountry Work Force Investment Board. It is my understanding that this board administers employment training programs and funds associated therewith. Would contemporaneous appointments to these two Boards violate the prohibition against dual office holding as proscribed by Article XVII, Section IA of the South Carolina Constitution.

Law I Analysis
Article XVII, Section lA of the State 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, member of a lawfully and regularly organized fire department, constable, or notary public. 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). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its 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). With respect to the Hampton County Economic Development Board, we are aware of no opinion of this Office in which this entity has been addressed in terms of whether membership thereupon constitutes an office for dual office holding purposes. However, in an opinion dated July 27, 1989, we concluded that the Hampton County Industrial Commission was not an office for

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POST OFFICE Box 11549

• COLUMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 •

FACSIMILE: 803-253-6283

Mr. Solomons
Page2
March 19, 2003

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dual office holding purposes. It is not clear from your letter whether this is the same entity or a predecessor to the Hampton County Economic Development Board. However, in that same opinion, we noted that we had reached a similar conclusion with respect to the Kershaw County Industrial Development Board. Moreover, we have similarly opined as to the Bamberg County Development Board, the Bamberg County Economic Development Commission, the Marlboro County Development Board, the Dillon County Development Board and the Florence County Development Board. See, Op. S.C. Atty. Gen., February 24, 2000; January 31, 1994 (Bamberg); June 12, 10997 (Marlboro); August 9, 1991 (Dillon); April 5, 1990 (Florence); October 18, 1988 (Kershaw). In each of these opinions, we found membership on these entities did not constitute holding an office. While these entities possessed slightly varying names, the principal function of each was the same - to promote and encourage economic development. Thus, while we have not examined the specific enabling authority or the powers and duties of the Hampton County Development Board, it is probable that the authority of this board is basically the same as other similar entities, referenced above. As indicated, our conclusion has been consistent that membership on these boards and commissions does not constitute an office for dual office holding.

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However, even if we assume for the sake of argument that membership on the Hampton County Economic Development Board constitutes an office, the situation you reference would not, in our opinion, constitute dual office holding. The Lowcountry Workforce Investment Board is created pursuant to federal law, the Workforce Investment Act, PL 105-220, 112 Stat. 936. The Attorney General of Delaware has described the federal legislation's purpose and implementation as follows:
[t]he Workforce Investment Act ... is a federal appropriations bill that envisions a relationship between the U.S. Department of Labor and the Governors of participating states. The Act sets the criteria for qualifying grants to the states, establishes oversight through the U.S. Department of Labor and requires the establishment oflocal boards through the Governors of the participating states. The Board's powers and responsibilities arise from the federal statutes and the delegation of authority by the Governor. Del. Op. Atty. Gen. 01-1307 (April 26, 2001). We have located no statute enacted by the General Assembly which deals with this federal program or sets forth additional powers under state law with respect to local boards such as the Lowcountry Workforce Investment Board. You have likewise indicated that no ordinance exists regarding additional powers of the Lowcountry Workforce Investment Board. Thus, it is evident that the Workforce Investment program in South Carolina is established through the Office of Governor, presumably by executive order. PL 105-220 bestows broad authority upon local boards, including submitting a local plan to the Governor, selection and certification of certain personnel, identification of eligible providers of intensive services, budgetary responsibilities, etc.

Mr. Solomons
Page3
March 19, 2003

Numerous opinions which have been issued by this Office in past years have considered whether positions required by or established under federal law would be considered offices for purposes of dual office holding. We have consistently concluded that a position established pursuant to federal law would not be an office for purposes of Article XVII, § lA. See, Ops. S.C. Atty. Gen., May 31, and opinions cited therein. Moreover, in an Opinion dated April 5, 1994, we concluded that service on the Governor's Workforce Initiative did not constitute an office for dual office holding purposes because such position was created pursuant to executive order of the Governor rather than statute, regulation or ordinance. There, we commented as follows:

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The Governor's Work Force Initiative was created by the Governor by Executive Order # 90-31. We can locate no statutory or constitutional authority which specifically mandated that the entity be created. In the absence of such authority, this Office has consistently concluded that membership of an entity created pursuant to executive order by a governor most probably would not constitute an office. As examples, see Ops. Atty. Gen. dated May 6, 1992 (as to the Council on Vocational and Technical Education); August 1, 1985 (as to the Youth Employment Coordinating Council (as to the Youth Employment Coordinating Council); March 27, 1985 (as to the Governor's School for the Arts board); and July 9, 1982 (as to the Governor's Resource Panel for the Elderly), among others. Accordingly, based upon the information which you have provided, as well as the foregoing authorities, it is our opinion that concurrent service on the Hampton County Economic Development Board and the Lowcountry Workforce Investment Board would not constitute dual office holding under Article XVII, § 1A of the South Carolina Constitution.

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Assistant Deputy Attorney General
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