Could a Pee Dee Mental Health Center board member also serve on Marion City Council?

Plain-English summary

In 2015, the South Carolina Attorney General concluded that serving on the Pee Dee Mental Health Center board and Marion City Council at the same time would constitute prohibited dual office holding. The council seat was already treated as a public office in an earlier opinion. The mental health board seat also met several factors used to identify a public office: statute created it, the Governor appointed members, the law prescribed qualifications and duties, and the board could allocate public funds.

The requester said board members volunteered and received only travel and per diem. The office explained that the lack of salary did not settle whether the role was an office of honor or profit. It described its conclusion as an advisory prediction and said a court could give a binding answer through a declaratory judgment.

Currency note

This opinion was issued in 2015. 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 volunteering on the mental health board avoid the dual office holding rule?
A: The Attorney General said no. It focused on the legal powers and structure of the board seat, including its role in allocating public funds, despite the requester's statement that members received only expenses.

Q: Was a Marion City Council seat considered a public office?
A: Yes. The opinion relied on an earlier office opinion that treated a city council member as holding an office of honor or profit.

Q: Did the opinion itself disqualify the requester from either seat?
A: It gave the office's view of how a court would apply the constitutional prohibition. It recommended a declaratory judgment for a binding determination.

Background and legal framework

The request came from a Governor-appointed board member considering a run for Marion City Council. The opinion applied the constitutional prohibition on holding two offices of honor or profit and the public-office test from Sanders v. Belue. In examining the board, it identified statutory creation, appointment by the Governor, prescribed qualifications and duties, and authority over taxpayer funds. These features outweighed the absence of a salary in the office's analysis.

Citations and references

The opinion discussed Article VI, Section 3 and Article XVII, Section 1A of the South Carolina Constitution, S.C. Code § 44-15-60 and S.C. Code § 44-15-70, and Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907).

Official title

Regarding whether serving on the board of directors of the Pee Dee Mental Health Center and on the Marion City Council would constitute dual office holding.

Requester

Ms. Doris J. Gerrald.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-26-2015-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/03/Gerrald-D.-OS-9903-FINAL-Opinion-3-26-2015-00599030xD2C78.pdf

Original opinion text

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Alan Wilson
Attorney General

March 26. 2015

Ms. Doris J. Gerrald
5 1 1 McEachem Hts.

Marion. SC 29571
Dear Ms. Gerrald:

Attorney General Alan Wilson has referred your letter dated March 12, 2015 to the Opinions section for a response.

The following is this Office's understanding of your question and our opinion based on that

understanding.
Issue (as quoted from your letter):
/ am presently representing Marion County on the Pee Dee Mental Health Center

Board of Directors, appointed by the Governor.

Pee Dee Mental Health Center

(PDMHC) is a division of the S.C. Department of Mental Health.

Board Member.
volunteers.

I receive travel and per diem only.

Some of our duties include governing, focus on the Center 's mission,

establishing policies,
programs,

As a PDMHC

Board members are

assisting in

hiring the Executive

Director,

evaluating

reviewing and evaluating the community mental health services

program, and advising the Executive Director on policies to stimulate effective

community relations.
.

The PDMHC Board functions primarily in an advisory

capacity.

Recently, I decided to run for the Marion City Council to give hack to the City that

I live in. As I am retired. I would have the time to do this, if elected.

The election

will be held in April of this year. I have been made aware that if I am elected and accept a position on the Marion City Council, it may be considered dual office holding and I would have to choose the one I want to serve on. ...

Based on the information you have provided, we will address whether serving on the board of directors of the Pee Dee Mental Health Center and on the Marion City Council would constitute dual office holding, as prohibited by our State's constitution. Law/Analysis:

By way of background,

Article VI. Section 3 and Article XVII, Section I A of the South Carolina

Constitution provide 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, a constable, or a notary public. Article III, Section 24 of the South Carolina Constitution specifically prohibits members of the General Assembly from holding any other office or position of trust or profit. For these provisions to be contravened, a person concurrently must hold two public offices

Rembert C. Dennis Building

•

Post Office Box 1 1 549

•

Columbia, SC 2921 1-1549

•

Telephone 803-734-3970

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Facsimile 803-253-6283

Ms. Doris J. Gerrald
Page 2
March 26, 2015

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). The Sanders case states:

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. Conversely, one who merely performs the duties required of him by persons employing him under an express contract or otherwise, though such persons be themselves public officers, and though the employment be in or about a public work or business, is a mere employee.

Id. at 174, 58 S.E. at 763. Other relevant considerations include "whether the position was created by the legislature; whether qualifications for appointment are established; whether duties, tenure, salary, bond

and oath are prescribed or required; [and] whether one occupying [the] position is representative of sovereign [power or duties]." State v. Crenshaw. 274 S.C. 475, 266 S.E.2d 61 (1980) (citing State ex rel. Carson v. Wood. 154 W.Va. 397, 175 S.R2d 482 (1970)). The only exception to dual office holding

prohibition would be if the person holds the second office "ex officio." Op. S.C. Attv. Gen.. 2012 WL 4459270 (September 19, 2012) (citing Ashmore v. Greater Greenville Sewer District 21 1 S.C. 77, 92, 44

S.E.2d 88, 95(1947)).
As you reference in your letter and as this Office has opined before, this Office believes a court would determine a councilmember of the Marion City Council would hold an office for honor or profit. Op. S.C.

Att'v Gen.. 1989 WL 50861 (November 20, 1989).

Therefore, let us examine the position of board of

directors for the Pee Dee Mental Health Center to determine if it is also an office for honor or profit. South Carolina Code Section 44-15-10 grants the authority to establish mental health programs and

clinics. We will presume the Pee Dee Mental Health Center is established according to this statute. In examining our previous opinions, this Office has consistently opined that a member of a board of mental health would be an office for honor or profit. See, e.g.. Ops. S.C. Att'v Gen.. 1993 WL 494584 (October 13, 1993); 1986 WL 289862 (June 12, 1986). Moreover, this Office previously opined that such a mental

health center, appointed by the Governor is "basically, the administrative agency for community mental health service programs and is eligible to receive grants of public funds from the South Carolina Mental

Health Commission." On. S.C. Att'v Gen.. 1965 WL 8054 (August 31, 1965). That opinion went on to declare that the mental health center was a public agency and thus, immune from tort liability. ]d. Therefore, we must now look to what we know about the Pee Dee Mental Health Center, which is based on the information you provided in your letter and pursuant to the statutes governing mental health centers in South Carolina. Using the factors in Crenshaw, the position of mental health board member is created by legislature (S.C. Code § 44-15-70), the position is one appointed by the Governor (S.C. Code § 44-15-60), the qualifications for appointment are established (S.C. Code § 44-15-60), and duties and tenure are prescribed (S.C. Code § 44-15-60). While we recognize your assertion that the position is volunteer and only actual expenses are paid, it can still be an office for honor or profit because it meets many of the Crenshaw factors including the authority to allocate taxpayer funds. S.C. Code § 44-15-70. This Office has consistently opined that the expenditure of appropriated funds involves the sovereign power of the State. See, e^ Ops. S.C. Att'v Gen.. 2001 WL 957758 (July 18, 2001); 1985 WL 259236 (December 11, 1985); 1968 WL 8931 (November 1, 1968).

Ms. Doris J. Gerrald
Page 3

March 26, 2015

Conclusion.-

Therefore, it is for all of the above reasons that this Office believes a court will determine a board member of the Pee Dee Mental Health Center would be an office for honor or profit for dual office

holding purposes. Nevertheless, there are many other sources and authorities you may want to refer to for a further analysis.

For a binding determination, this Office would recommend seeking a declaratory

judgment from a court on these matters, as only a court of law can interpret the law. S.C. Code § 15-53

20. Until a court or the Legislature specifically addresses the issues presented in your letter, this is only a

legal opinion on how this Office believes a court would interpret the law in the matter. determined otherwise or if you have any additional questions or issues, please let us know.

Sincerely,

Anita S. Fair
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General

If it is later