Could a South Carolina city council member also serve on the Small Business Regulatory Review Committee?

Plain-English summary

In 2013, the South Carolina Attorney General concluded that a city council member could also serve on the South Carolina Small Business Regulatory Review Committee without violating the state constitution's prohibition on holding two public offices at once. The office treated a council seat as a public office, but found that the Review Committee's advisory role did not exercise sovereign power in the way required to count as a second office.

The committee could request analyses, advise agencies about effects of proposed regulations on small businesses, petition concerning existing rules, and recommend amendment or repeal. The opinion emphasized that it could not itself finally decide whether a regulation would be amended or repealed. Its statutory creation and prescribed membership were features of a public office, but did not change the conclusion about its limited powers.

Currency note

This opinion was issued in 2013. 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 serving on both city council and this review committee violate the dual-office rule? A: The AG concluded it did not. Council membership counted as an office; committee membership did not, because the committee was advisory.

Q: Why did the committee's legislative creation not make its members public officers? A: The opinion said statutory creation and prescribed qualifications were relevant, but the committee lacked final regulatory decision-making authority and did not exercise sovereign power.

Q: Could the committee itself repeal a rule affecting small businesses? A: No. The opinion described powers to petition and recommend, while the promulgating agency considered amendment or repeal and the legislature could later act.

Q: Did the member's business ownership change the constitutional result? A: The request identified the council member as a business owner, but the opinion's dual-office analysis turned on whether committee service counted as a public office.

Background and statutory framework

The Columbia city attorney asked about a council member who owned a business and might join the committee. The AG applied the constitutional two-office rule and prior opinions distinguishing advisory bodies from positions exercising sovereign authority. Its conclusion addressed that committee's powers as described in the opinion.

Citations and references

The opinion quotes Article XVII, section 1A of the South Carolina Constitution and discusses the Review Committee provisions in S.C. Code § 1-23-280. The PDF contains its full analysis.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-7-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/gaines-k-os-9561-3-7-13-dual-office-holding.pdf

Original opinion text

ALAN WILSON
A ITORNEY GENERAL

March 7, 2013

Kenneth E. Gaines, Esquire
City Attorney
City of Columbia
P.O. Box 667
Columbia, South Carolina 29202
Dear Mr. Gaines,
You have requested an opinion of thi s Office concerning dual office holding. Specifically, you ask whether a member of City Council, who is also a bu siness owner, may also serve as a member of the South C arolina Small Business Regulatory Review Committee (the "Review Committee"). Law/Analysis

Article XVII , section 1A of the South Carolina Constitution provides that " [n]o person may 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 a violation of this provision to occur, an individual must concurrently hold two public offices which have duties " involving an exercise of some part of the sovereign power" of the State. Sanders v. Belue, 78 S.C. 171 , 174, 58 S.E.2d 762, 763 (1907). A public officer is " [o]ne who is charged l;>y law with duties involving an exercise of some part of the sovereign power, e ither great or small, in the performance of which the public is concerned, and which are continuing, and not occasional intermittent, is a publ ic officer." ld,, 58 S.E.2d at 762-63. Other relevant considerations include: "whether the position was created by the legis lature; whether the qualifications for appointment are established; whether the duties, tenure, salary, bond , and oath are prescribed or required ; whether the one occupying the pos ition is a representative of the sovereign; among others." State v. Crenshaw, 274 S.C. 475, 478, 266 S. E.2d 61 , 62 (1980) . This Office has advised on numerous occasions that a member of a town or city counc il holds an office for purposes of the constitutional prohibition against dual office holding. See, e .g., Ops. S.C. Att'y Gen ., 2012 WL 1036294 (March 20, 20 12); 20 11 WL 380163 (Jan. 14, 201 1). Thus, the issue central to your request is whether a member of the Review Committee likewise ho lds an office for such purposes. We have never had the occasion to specifically address membership on the Re view Comm ittee. We note that the Review Committee was created by the Legislature. See S.C. Code § l -23-280(A)(l) ("There is established a Small Business Regulatory Review Committee within the South Carolina Depat1ment of Commerce"). The Review Committee is composed of eleven appointed members. § 1-23280(8). Five members are appointed by the Governor, three by the President Pro Tempore, and three by the Speaker of the House. lQ,_ In addition, the chai1men of the House and Senate Labor, Commerce and Industry Comm ittees serve as nonvoting, ex officio members. § l-23-280(C). All appointed members

REMBERT

c. DENNIS BUILDING • POST OFFlCE Box 11549 • COLUMBIA • SC ?- 921 l- 1549 • TELEPHONE 803 - 734- 3970 • FACSIMILE 803-253-6283

Mr. Gaines
Page 2
March 7, 2013
are required to be "either current or former owners or officers or a small business." § 1-23-280(0). Appointed members serve two-year terms and may not serve more than three consecutive terms. § l-23280(F). The duties of the Review Committee are set forth in§ I-23-280(A)(2): (2) The duties of the committee, in determining if a proposed permanent regulation has a significant adverse impact on small businesses, are to: (a) direct the promulgating agency to prepare the regulatory flexibility analysis described in Section l-23-270(C)(2) no later than the end of the public comment period that follows the notice of proposed regulation, as provided in Section 1-23-11 O(A)(3); and (b) request, at the committee's discretion, the Office of Research and Statistics of the Budget and Control Board to prepare a final assessment report, as provided in Section 1-23-l I S(B), of the proposed permanent regulation no later than the end of the public comment period that follows the notice of proposed regulation, as provided in Section 1-23-11 O(A)(3). The committee may request a final assessment report from the Office of Research and Statistics only in cases where the committee dete1mines that information in addition to the agency's economic impact as provided in Section 1-23270(C)( 1) is critical in the committee's determination that a proposed permanent regulation has a significant adverse impact on small business. The Office of Research and Statistics: (i) within the review and comment period, shall perform a final assessment repoti of the regulation on small businesses within sixty days of a request for assessment by the committee, and the promulgating agency has sixty days to complete a regulatory flexibility analysis; and (ii) may request additional information from the agency. The sixty-day final assessment report deadline must be tolled until the time that the Office of Research and Statistics receives the requested additional information. The one-year deadline for submission of regulations to the General Assembly as provided in Section l-23-120(A) also must be tolled until the time that both analyses are prepared and presented to the committee; and (c) submit to the promulgating agency, no later than thi1iy days after receipt of the regulatory flexibility analysis prepared by the promulgating agency and, if requested by the committee, after receipt of the final assessment repo1i prepared by the Office of Research and Statistics, a written statement advising the agency that a proposed permanent regulation has a significant adverse impact on small business.
§ l-23-280(A)(2) (emphasis added).
The Review Committee has the authority to direct an agency promulgating a regulation that has "a s ignificant adverse impact on small businesses" to prepare an "econom ic impact statement'' and a "regu latory flexibility analysis." § l-23-270(C). In addition, the Review Committee is empowered to file

Mr. Gaines
Page 3
March 7, 2013
a petition with an agency that has already promulgated regulations opposing any part of a regulation that has a significant adverse impact on small business. § 1-23-290(A). In response, the promu lgating agency determines whether the petition warrants the amendment or repeal of a regulation. § l-23-290(B). lf the agency determ ines that no amendment or repeal is warranted, the Review Comm ittee " promptly shall convene a meeting for the purpose of determining whether to recommend that the agency initiate proceedings to amend or repeal the regulation in accordance with the Administrative Procedures Act." § l-23-290(C) (emphasis added). If the Review Committee makes such a recommendation to the agency, it must then submit "an evaluation report and the agency's response as provided in Section l-23-290(B)" to the Speaker of the House and the President Pro Tempore. § l-23-290(D). In response, the General Assembly may later take any action it deem s appropriate. IQ., Considering the above, a position on the Review Committee certainly has some aspects of a public office as such positions and their qualifications, duties, and powers are established by statute. However, no oath or bond is statutorily required. Furthennore, the duties and powers of the Review Committee are lim ited to advising promulgating agencies as to its findings concerning the impact of proposed regu lations on small businesses and making recommendations to such agencies as to whether to amend or repeal a current or proposed regulation. The Review Committee is given no fina l authority to determine whether a regulation is to be amended or repealed. We have repeatedly advised that the members of such advisory bodies, although they possess some characteristics of an office, do not exercise a po1tion of the sovereign authority of the State and thus do not hold offices for purposes of dual office holding. See, e.g., Ops. S.C. Att'y Gen., 2012 WL 682076 (Feb. 23 , 2012) (Medical Disciplinary Commission); 20 11 WL 4592369 (Sept. 16, 2011) (Clemson University Humanities Advancement Board); 201 1 WL 3346427 (July l, 20 11 ) (Oconee County Parks, Recreation and Tourism Comm ission); 2007 WL 103 11 451 (March 28, 2007) (City of Cayce Accommodations Tax Advisoty Committee). Accordingly, we conclude that membership on the Review Committee is not an office for purposes of dual office holding.

Conclusion
It is the opinion of this Office that the constitutional prohibition against dual office holding is not violated by an individual 's simultaneous membership on City Counci l and the South Carolina Small Business Regulatory Review Comm ittee. Although we believe a member of City Counci l undoubtedly holds an office for purposes of the constitutional prohibition against dual office holding, prior opinions indicate that membership on an advisory body such as the Review Comm ittee does not constitute such an office. Accordingly, we believe an individual's dual service in this case is not constitutionally prohibited .

arrison D. Brant
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Deputy Attorney General