Could a private college trustee also serve on a South Carolina public university board in 2005?

Plain-English summary

The Attorney General addressed two proposed combinations of college board service in 2005. A trustee of private Limestone College or Sherman College could also serve on the South Carolina State University Board of Trustees: the private college posts were generally not public offices. By contrast, a Lancaster County Commission on Higher Education member could not also serve on the Winthrop University Board of Trustees. The opinion classified both of those posts as public offices.

For the Lancaster commission, the AG pointed to statutory powers to make contracts and binding agreements and to negotiate for educational facilities. Those powers supported its earlier conclusion that the commission exercised part of the state’s sovereign authority. The opinion treated the public university trusteeships as offices under earlier AG opinions.

Currency note

This opinion was issued in 2005. 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

Did private college trusteeship prevent service on the South Carolina State board?
No. The AG understood Limestone and Sherman to be private institutions and concluded that the proposed overlap did not constitute dual office holding.

Could one person serve on the Lancaster commission and Winthrop board?
No. The opinion treated each position as a public office and found that simultaneous service would violate the constitutional restriction.

Why did the two combinations get different answers?
The AG said the private boards generally did not exercise state sovereign power, while the Lancaster commission had statutory public powers.

Background and statutory framework

The opinion applied South Carolina’s constitutional restriction on holding two offices of honor or profit at once. Its analysis focused on whether the positions involved an exercise of sovereign power, and it cited earlier AG opinions on university trustees and county higher education commissions.

Citations and references

• Article XVII, Section I A of the South Carolina Constitution: dual office holding provision as printed in the source.
• Sanders v. Belue and State v. Crenshaw: criteria for identifying a public office.

Official title

Concerning possible dual office holding, specifically whether an individual serves on the Limestone College Board of Trustees and the Sherman College Board of Trustees, and is elected by the General Assemble to the South Carolina State University Board of Trustees. Also, if an individual serves on the Lancaster County Commission for Higher Education and is elected by the General Assembly to the Winthrop University Board of Trustees.

Requester

The Honorable Olin R. Phillips, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-24-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05march-24Phillips.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn:R
ATTORNEY GENERAL

March 24, 2005

The Honorable Olin R. Phillips
Member, House of Representatives
Post Office Box 11 867
Columbia, South Carolina 29211
Dear Representative Phillips:
You note that the Joint Committee for Boards ofTrustees of State Colleges and Universities is seeking an opinion concerning possible dual office holding in two situations. Your letter states the following:
[i]f an individual serves on the Limestone College Board of Trustees and the Sherman College Board of Trustees, and is elected by the General Assembly to the South Carolina State University Board of Trustees, would that be a violation of the dual office holding clause of the constitution? Also, if an individual serves on the Lancaster County Commission for Higher Education and is elected by the General Assembly to the Winthrop University Board of Trustees, would that be a violation of the dual office holding clause of the constitution? Law I Analysis Article XVII, Section I A 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 of the militia, a member of a lawfully and regularly organized fire department, a constable and a 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, 178 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) .

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~ERT c. DENNIS BUD.DING • POST OFFICE Box 11549 •
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COWMBIA,

s.c. 29211-1549 • Ta.EPHONE: 803-734-3970 • fACSIMJl..E: 803 -253-6283

The Honorable Olin R. Phillips
Page2
March 24, 2005

We have consistently concluded that a member of the Board of Trustees of South Carolina State University is an office holder for dual office holding purposes. See, Op. S.C. Atty. Gen., November 21, 1996; Op. S.C. Atty. Gen., Op. No. 86-43 (March 25, 1986).

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On the other hand, we have also opined on a number of occasions that a member of a board of a nonprofit corporation is, generally speaking, not an office for dual office holding purposes. Our rationale is that these private entities do not, except in special circumstances, invoke the sovereign power of the State or any portion thereof. See, Op. S.C. Atty. Gen., June 21, 2000 (County First Steps Board member does not hold an office); Op. S.C. Atty. Gen., March 17, 1995; Op. S.C. Atty. Gen., October 18, 1988; Op. S. C. Atty. Gen., Op. No. 83-87 (November 10, 1983) [board members of South Carolina Protection and Advocacy System For the Handicapped, Inc. do not hold an office]. Both Limestone College and Sherman College, as we understand, are private entities, not public institutions. Thus, in our opinion, concurrent service either as a member of the Board of Trustees of Sherman or Limestone College, together with service on the Board of Trustees of South Carolina State University, would not constitute dual office holding. The second situation is different, however. In an opinion dated June 28, 1976, former Attorney General McLeod advised that membership on the Winthrop Board of Trustees constitutes on office for dual office holding purposes. With respect to the Lancaster County Commission on Higher Education, we have also concluded that membership thereupon is -an office because "the duties imposed upon the Commission ... [by statute] seem to clearly indicate that a portion of sovereign authority is imposed in the Commission." See, Op. S.C. Atty. Gen., Op. No. 1662 (April 7, 1964). The Commission was created by Act No. 126of1959. Members serve designated terms and are empowered to enter into contracts, make binding agreements, negotiate with educators and educational institutions and "generally, to take such actions in its name as are necessary to secure for Lancaster County and adjacent areas ... educational facilities .... " Thus, the earlier opinion, concluding that the members of this Commission hold an office, is correct. Consistent therewith, we have concluded that members of other County Commissions of Higher Education, performing similar duties to that of Lancaster, hold offices for dual office holding purposes. See e.g. Op. S.C. Atty Gen., September 8, 2003 (Aiken County Commission of Higher Education); Op. S.C. Atty. Gen., February 27, 2001 (Spartanburg County Commission on Higher Education); Op. S. C. Atty. Gen., March 16, 1999 (Horry County Commission on Higher Education); Op. S.C. Atty. Gen. June 19, 1997 (Mid-Carolina Commission on Higher Education). Thus, it is clear that if an individual were to serve simultaneously as a member of the Lancaster County Higher Education Commission and the Winthrop Board of Trustees, such would constitute dual office holding under the South Carolina Constitution.

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The Honorable Olin R. Phillips
Page 3
March 24, 2005

In summary, we therefore conclude that your first factual scenario would not constitute dual office holding under the South Carolina Constitution. However, the second factual scenario would constitute dual office holding. yours,

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Assistant Deputy Attorney General
RDC/an