Could a county elections director also serve on the Greenville-Spartanburg airport commission?

Plain-English summary

In 2011, the South Carolina Attorney General saw no conflict of interest apparent from the positions themselves if Spartanburg County's voter-registration and elections director also served on the Greenville-Spartanburg airport commission. The AG reasoned that the elections role did not appear to allow the director to influence a government decision in which he or an associated business had an economic interest. It also saw no likely master-and-servant conflict between the positions.

The opinion separately addressed the constitutional ban on holding two public offices. An airport commissioner held an office for that purpose, but the elections director was ordinarily an employee, so the combination did not create dual office holding on the stated facts. The opinion noted a prior qualification involving a director deputized to perform board-member functions. The AG did not find facts about any actual economic interest; it identified the South Carolina Ethics Commission as the primary authority for further ethics guidance.

Currency note

This opinion was issued in 2011. 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

Was simultaneous service automatically a conflict of interest? A: The AG found no conflict apparent on the face of the two positions. It did not investigate whether a particular decision would affect an economic interest.

Did the state constitution's two-office rule bar this combination? A: The opinion treated airport commissioner as an office but the elections director as ordinarily an administrative employee, so it found no two-office violation on that basis.

Where did the AG point for further ethics guidance?
A: It said the South Carolina Ethics Commission had primary jurisdiction over state ethics laws and should be consulted for further advice or information.

Background and statutory framework

The county elections director asked about a possible appointment to the GSP Commission. The AG quoted § 8-13-700's restrictions on using public duties to obtain or influence an economic interest, then considered the constitutional dual-office test and earlier AG opinions on airport commissioners and administrative directors.

Citations and references

The opinion quotes S.C. Code § 8-13-700 and discusses McMahan v. Jones, Sanders v. Belue, and article XVII, section 1A of the state constitution.

Official title

Asking whether it would “be a conflict of interest for [you] to continue as the County Registration/Elections Director and a member of the [Greenville-Spartanburg] GSP Commission,” should you be nominated by the County’s Legislative Delegation and appointed by the Governor.

Requester

Henry M. Laye, III, Director, Spartanburg County Voter Registration & Elections

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-31-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/laye-h-m-iii-os-9188-3-31-11-conflict-of-interest.pdf

Original opinion text

ALAN W ILSON
ATTORNEY GENERAL

March 31, 2011

Henry M. Laye, ill, Director
Spartanburg County Voter Registration & Elections
366 North Church Street, Room 1630
Spartanburg, SC 29303
Dear Mr. Laye:
We received your letter requesting an opinion of this Office regarding a conflict of interest. You asked whether it would "be a conflict of interest for [you] to continue as the County Voter Registration/Elections Director and be a member of the [Greenville-Spartanburg] GSP Commission," should you be nominated by the County's Legislative Delegation and appointed by the Governor. As background, you provided that you previously spent two years at the GSP airport working with the Commission and staff. Because of your experience and knowledge of how the airport works as a result of your work on the 1988-89 expansion project for the Greenville Spartanburg Airport, I am certain that your assistance would be of tremendous help as the airport plans another expansion. This Office will address whether a conflict of interest would exist should you serve in both positions. Law/Analysis

S.C. Code§ 8-13-700 states as follows:
(A)

No public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated. This prohibition does not extend to the incidental use of public materials, personnel, or equipment, subject to or available for a public official's, public member's, or public employee's use which does not result in additional public expense.

REMBERT c. DENNIS BUilDING • POST OPF!CE Box 11549 •

COLUMBIA, SC 29211-1549

•

Tul..BPHONB 803-734-3970

• FACSIMJLE 803-253-6283

Mr. Laye
Page2
March 31 , 2011
(B)

No public official, public member, or public employee may make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated has an economic interest. A public official, public member, or public employee who, in the discharge of his official responsibilities, is required to take an action or make a decision which affects an economic interest of himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated shall: (1)

prepare a written statement describing the matter requiring action or decisions and the nature of his potential conflict of interest with respect to the action or decision . ..

(4)

if he is a public official, other than a member of the General Assembly, he shall furnish a copy of the statement to the presiding officer of the governing body of any agency, commission, board, or of any county, municipality, or a political subdivision thereof, on which he serves, who shall cause the statement to be printed in the minutes and require that the member be excused from any votes, deliberations, and other actions on the matter on which the potential conflict of interest exists and shall cause the disqualification and the reasons for it to be noted in the minutes. . ..

S.C. Code§ 8-13-700(A) & (B) (emphasis added).
1bis Office is not a fact-finding entity; investigations and determinations of facts are beyond the scope of an opinion of this Office and are better resolved by a court. Ops. S.C. Attv. Gen., September 29, 2010; September 14, 2006; April 6, 2006. However, it does not appear in this instance that one serving as County Voter Registration/Elections Director is in a position to use his office to influence a governmental decision in which he or a business with which he is associated, such as the GSP Airport, has an economic interest. Therefore, no conflict of interest would exist. The request letter provides that neither the Voter Registration Chair nor the County Administrator is concerned about one serving as both County Voter Registration/Elections Director and member of GSP Commission. Also, this Office is unaware of any written statement prepared by the County Voter Registration/Elections Director describing the nature of any potential conflict of interest with the GSP Airport or Commission.

Mr. Laye
Page3
March 31, 2011
In 1913, the South Carolina Supreme Court held in McMahan v. Jones that "[n]o man in public service should be permitted to occupy the dual position of master and servant." It is unlikely that the positions of County Voter Registration/Elections Director and member of GSP Commission would be viewed by a court as master and servant positions. A court would likely find that serving as the Spartanburg County Voter Registration and Elections Director and member of GSP Commission would not create a conflict.

One should also note, there is no dual office holding problem. Article XVII, Sec. 1A of the South Carolina Constitution provides that" .. . no person shall hold two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public." For this provision to be contravened, a person concurrently must hold two public 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." Mb, 58 S.E. 762, 763. Other relevant considerations are whether statutes, or other such 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). This Office has repeatedly expressed the opinion that an individual serving on a county airport commission, such as the GSP Commission, would hold an office for purposes of dual office holding. See, Ops. S.C. Atty. Gen., October 14, 2010; August 25, 2005; July 11, 2005; April 29, 1985; January 19, 1983; November 9, 1982; August 22, 1975. However, on numerous occasions, this Office has opined that the position of "executive -director or director is an administrative position which is not an office." Ops. S.C. Atty. Gen., August 19, 2002; June 24, 1994; May 15, 1989. The director generally serves at the pleasure of the governing board and would be considered a mere employee. "Unless the director is deputized by the Board of Elections and Voter Registration as a board member to take applications and issue voter registration certifications, it is our opinion that no dual office holding problem is created."Op. S.C. Atty. Gen., January 27, 2004. Since serving as director would not be considered an office for dual office holding purposes, there would be no dual office holding violation under the South Carolina Constitution if one served as both County Voter Registration/Elections Director and as a member of the GSP Commission.

Mr. Laye
Page4
March 31, 2011

Conclusion
No conflict of interest is apparent on the face of the two positions. However, the South Carolina Ethics Commission has primary jurisdiction over the state's ethics laws and should be consulted for further advice or information. Sincerely,

C<~M~
Leigha Blackwell
Assistant Attorney General

REVIEWED AND APPROVED BY:

!~g), <frJ2
Robert D. Cook
Deputy Attorney General