Could one person serve on a South Carolina architectural review board, technical college board and county library board?

Plain-English summary

An attorney asked whether one person could sit on Bennettsville's architectural review board, the Northeastern Technical College board of trustees and a Marlboro County library committee. In a 2002 informal opinion, the Attorney General said the architectural review board and technical college board were both public offices for South Carolina's prohibition on holding two offices at once. Holding those two seats together therefore raised the constitutional bar without needing to resolve the third seat.

The AG assumed the library committee meant the county library board of trustees. Earlier opinions treated similar county library trusteeships as public offices, and the AG said Marlboro's board would most probably be one if established under the library statutes he discussed. He could not determine that with certainty without the county ordinance. The opinion also noted a separate statutory restriction on architectural review board members holding another public office or position in the same municipality or county.

Currency note

This opinion was issued in 2002. 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.

Historical summary

Architectural review board and college trustees

The AG treated an architectural review board member as an officer because the law set appointment and removal rules and gave the chair power to administer oaths and compel witnesses. He also treated technical college trusteeship as an office, citing prior opinions on comparable technical education boards. Under Article XVII, Section 1A, those two offices could not be held at the same time.

County library trustees

The AG had found comparable county library boards to be public offices. For Marlboro County, he said the board's status depended on its establishing or revising ordinance and invited the requester to provide it for closer examination.

Common questions

Could the same person sit on both the architectural review and technical college boards? A: The AG's 2002 answer was no. He classified each seat as a public office under the constitutional dual-office rule.

Was the Marlboro library seat definitely a public office? A: The AG said it most probably was if the board was established under the cited county-library provisions, but an examination of Marlboro County's ordinance was needed for certainty.

What made the architectural review seat an office in this opinion? A: The letter pointed to statutory appointment rules and powers to administer oaths, compel witnesses and review decisions.

Background and statutory framework

The opinion applied Article XVII, Section 1A's ban on two simultaneous offices of honor or profit. It relied on Sanders v. Belue and State v. Crenshaw for the public-office test, then considered the boards separately. Its finding on the library board was conditional because the local ordinance was not before the AG. The letter says it is an informal opinion by an Assistant Deputy Attorney General.

Citations and references

• Article XVII, Section 1A: constitutional dual-office provision quoted in the letter.
• § 6-29-870: architectural review board powers and membership restrictions discussed by the AG.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907), and State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980): public-office criteria cited in the opinion.

Official title

Dual-office holding while serving on three public boards.

Requester

Greg Ohanesian, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-13-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02may13ohanesian.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON

May 13, 2002

ATTORNEY GENERAL

Greg Ohanesian, Esquire
Post Office Box 13 73
Bennettsville, South Carolina 29512-1373

rm

,! ".~

Dear Mr. Ohanesian:

i

You have asked whether one serving on three separate boards would be dual office holding under the South Carolina Constitution. The three boards you specify are as follows: 1.

City of Bennettsville Board of Architectural Review;

2.

Northeastern Technical College Board of Trustees;

3.

Marlboro County Public Library Committee.

Article XVII, Section 1A 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 certain positions. For this provision to be contravened, a person must concurrently 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). 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). Local boards of architectural review are authorized pursuant to S.C. Code Ann. Sec. 6-29870. Subsection (A) states that a local government "may provide for appointment of a board of architectural review or similar body." Subsection (B) establishes the membership of boards and provides for appointment and removal of members. Subsection (C) states that "none of the members
[of such boards] may hold any other public office or position in the municipality or county. Subsection (D) of§ 6-29-870 authorizes the chairman of an architectural review board to administer oaths "and compel the attendance of witnesses by subpoena." Decisions are appealed to the board "where there is an alleged error in any order, requirement, determination or decision." §

/}

R EMBERT

c. DENNIS BUILDING

X--1t?./1.h ~AY /--.......l/,_,tJ .

•

POST OFFICE Box 11549

•

C OLUMBIA,

s.c. 29211-1549

•

TELEPHONE: 803-734-3970

•

FACSIMILE: 803-253-6283

Mr. Ohanesian
Page 2
May 13, 2002

6-29-880. In other words, it appears that the architectural review board is a quasi-judicial. In my opinion, a member of such board would be an officer for dual office holding purposes.

I

With respect to a member of the Northeastern Technical College Board of Trustees, it is my opinion that such position would also constitute an office. This Office has advised on several occasions that members of the various technical education commissions would be considered office holders for dual office holding purposes. See, Op. Atty. Gen., dated April 5, 1994 (Spartanburg County Commission for Technical Education); January 22, 1993 (Richland-Lexington Counties Commission for Technical Education); January 31, 1985 (Chesterfield-Marlboro Area Technical Education Commission); February 1, 1985 (Horry-Georgetown Commission for Technical Education); June 24, 1993 (Sumter Area Technical Education Commission); December 13, 1995 (Piedmont Technical Education Commission). As to the Marlboro County Public Library Committee, I assume by that you mean the Board of Trustees of the Marlboro County Library. We have previously determined that membership on various county library boards would constitute an office for dual office holding purposes. See, Op. Atty. Gen., October 23, 1995 (Charleston County Library Board of Trustees); September 25, 1989 (Barnwell County Library Board of Trustees); February 11, 1981 (Allendale County Library Board); July 24, 1980 (Greenville County Library Board of Trustees); and March 11, 1976 (Florence County Public Library Trustee).

•
14

County councils were required by S.C. Code Ann. § 4-9-35 et seq. (1976, revised 1986), to establish a county public library system within the county by ordinance. The county council was given the authority to provide by ordinance for the composition, function, duties, responsibilities, and operation of the county library system. Provisions are found in § 4-9-3 5 for appointment of a board of trustees for the management and control of the public library system. Thus, it is quite likely that an ordinance adopted by Marlboro County Council pursuant to these Code sections exists with respect to the Marlboro County Library and its board. This Office has advised previously that membership on a county library board of trustees established pursuant to § 4-9-35 et seq. would constitute an office. Op. Atty. Gen. dated February 11, 1981, supra. If the Marlboro County Library Board was established or revised according to these Code sections, membership on that Board would most probably constitute an office; to determine that issue with certainty, it would be necessary to examine the ordinance(s) of Marlboro County Council with respect to the Board. It may well be that the referenced opinions are close enough factually to the Marlboro County Library Board to say that membership on that Board would constitute an office for dual office holding purposes; if that is not the case, you may wish to forward a copy of the relevant ordinance(s) to me for further examination. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific question

Mr. Ohanesian
Page 3
May 13, 2002

asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion.

Assistant Deputy Attorney General

I

RDC/an