Could one person sit on Charleston County's assessment appeals board and Mount Pleasant's workforce-housing committee?

Plain-English summary

Ben Bryson asked whether serving on Charleston County's Board of Assessment Appeals and Mount Pleasant's Provider of Workforce Housing Committee violated South Carolina's dual-office rule. The Attorney General concluded in 2009 that the two roles could be held together. Prior opinions treated an assessment appeals board seat as an office. The housing committee, although created by town resolution with membership qualifications and fixed terms, was advisory and did not exercise state sovereign power.

The committee recommended ways to encourage workforce housing and reported to the town council's planning committee. The opinion said its recommendations did not bind the town. That limited authority was central to the conclusion that it was not a second office.

Currency note

This opinion was issued in 2009. 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: Was the county assessment appeals board seat a public office? A: Yes. The Attorney General relied on earlier opinions treating assessment appeals boards as offices for the constitutional dual-office rule.

Q: Did the housing committee's town resolution and fixed terms make it an office? A: They were indications of an office, but the opinion found the committee's duties only advisory and its recommendations nonbinding.

Q: Why could one person hold both seats?
A: The dual-office prohibition required two public offices. The opinion classified only the assessment appeals seat as an office under the facts described.

Background and statutory framework

The opinion applied Article VI, section 3 and Article XVII, section 1A of South Carolina's Constitution. It examined whether the housing committee exercised sovereign power, as well as the resolution creating it and specifying its membership. The office concluded that an advisory committee was not an office for this purpose.

Citations and references

Constitution: Article VI, section 3 and Article XVII, section 1A of the South Carolina Constitution, as quoted in the opinion. Prior opinions: The letter cites earlier opinions concerning assessment appeals boards and purely advisory committees.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-14-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/bryson-b-os-8693-5-14-09-dual-office-holding.pdf

Original opinion text

HENRY M CMASTER
ATTORNEY G ENERAL

May 14, 2009

Mr. Ben Bryson
327-A Folly Road
Charleston, South Carolina 29412
Dear Mr. Bryson:
We understand from your letter that you desire an opinion of this Office concerning dual office holding. By your letter, you informed us that you currently hold a position on the Charleston County Board of Assessment Appeals (the "Board") and a position on the Provider of Workforce Housing Committee (the "Committee") for the Town of Mount Pleasant (the "Town"). Thus, you are requesting an opinion as to whether simultaneously holding these two positions violates the prohibition on dual office holding contained in the South Carolina Constitution. Law/Analysis

Article VI, section 3 of the South Carolina Constitution (2009) provides: "No person may hold two offices of honor or profit at the same time. This limitation does not apply to officers in the militia, notaries public, members oflawfully and regularly organized fire departments, constables, or delegates to a constitutional convention." In addition, article XVII, section 1A of the South Carolina Constitution (2009) prohibits a person from holding "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." To contravene these provisions, a person concurrently must hold two offices having duties that involve the exercise of some portion ofthe sovereign power ofthe State. Sanders v. Belue, 78 S. C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position' s duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61 , 62 (1980). Numerous prior opinions of this Office conclude that one who serves on an assessment appeals board holds an office for purposes of dual office holding. Ops. S.C. Atty. Gen., May 14, 1995; August 6, 1991 ; December 11 , 1990. Thus, we must consider whether serving as a member of the Committee also constitutes an office.

REMBERT c. D ENNIS B UILDING •

P OST O FF!CB Box 11549

•

COLUMBIA, SC 29211 -1549

• TELEPHONE 803-734-3970 •

FACSIMILE 803-253-6283

Mr. Bryson
Page2
May 14, 2009

According to the information you provided, the Town created the Committee via a resolution adopted by the Town's council in March of2006. In October of2006, the Town's council amended the original resolution to add an additional member. The resolution, as amended, provides that the Committee "shall consist of ten volunteer members assigned to specific seats, all of whom shall be residents of the Town, except that the occupant of Seat 4 may reside outside the Town limits and the occupant of Seat 10 may reside anywhere East of the Cooper." In addition, the amended resolution states the following membership requirements and seat assignments:
[O]ne (1) advocate oflaw and very low income persons - Seat 1, two (2) banking or mortgage banking industry representatives - Seat 2 and 3, one (1) provider of workforce housing- Seat 4, one (1) real estate professional - Seat 5, two (2) residential home building industry representatives - Seats 6 and 7, two (2) citizens-at-large who are residents of Mount Pleasant - Seats 8 and 9 and one (1) citizen at large who resides anywhere East of the Cooper - Seat 10. The amended resolution indicates that the Committee's members are to serve a four-year term. According to the original resolution, the Committee "acts in an advisory capacity to the Planning Committee of Town Council" and has the following duties: A.

Provide advice on matters assigned to them for their review
and recommendation.

B.

Provide recommendations on neighborhood redevelopment to
include workforce housing opportunities.

C.

Provide recommendations that remove barriers to workforce
housing production and promotes incentives for such
development

D.

Inventory and review possible sites for workforce housing,
including vacant parcels throughout the Town.

E.

Provide recommendations regarding criteria for workforce
housing designation.

F.

Provide recommendations for a long-range plan for the
provision of workforce housing for low and moderate income
households that include special opportunities for senior
citizens, employer-assisted housing, first time homebuyers,
and adequate rental housing.

Mr. Bryson
Page3
May 14, 2009

G.

Provide recommendations for grant/loan programs for the
purpose of rehabilitating existing deteriorating housing and increasing newly constructed workforce housing.

H.

With the assistance of staff, undertake special studies
assigned to the committee.

Because the Committee was created by resolution of the Town's council, which specifies qualifications for membership and establishes a term of office, membership on the Committee has some indications of an office. However, in our review of the duties and functions assigned to members of the Committee, these duties and functions appear to be advisory only and do not appear to binding on the Town. Thus, we do not believe the Committee has the authority to exercise a portion of the sovereign power of the State. As we explained in a 1983 opinion, "This office has consistently expressed the view that committees which function in a purely advisory capacity are not offices within the meaning of the dural office holding provisions of the South Carolina Constitution." Op. S.C. Atty. Gen., October 4, 1983. Accordingly, we are of the opinion that membership on the Committee does not constitute an office for purposes of dual office holding. As such, we believe serving both on the Board and the Committee would not violate the dual office holding prohibition contained in the South Carolina Constitution. Conclusion Although we find service on the Board to be an office for purposes of dual office holding, we do not believe service on the Committee constitutes an office. Therefore, it is our opinion that simultaneous service in both positions would not violate article VI, section 3 and article XVII, section IA of the South Carolina Constitution. Very truly yours, Henry McMaster Attorney General

B~~

Assistant Attorney General

Deputy Attorney General