Could one person serve on South Carolina's Human Affairs Commission and a county elections board?

Plain-English summary

In 2006, a legislator asked whether one person could serve on both the State Human Affairs Commission and the Beaufort County Board of Elections. The South Carolina Attorney General concluded that simultaneous service would violate the state constitution's prohibition on holding two offices of honor or profit at once.

The opinion treated each board membership as a public office. Earlier AG opinions classified county election-board members that way. An earlier opinion also found Human Affairs Commission membership to be an office because the Commission exercised a substantial part of the state's sovereign power. The 2006 opinion applied those classifications to the proposed combination of seats.

Currency note

This opinion was issued in 2006. 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 a Beaufort County elections-board seat count as a public office?

A: Yes. The AG relied on prior opinions classifying county election-board membership as office holding for the dual-office rule.

Q: Did a State Human Affairs Commission seat also count?

A: Yes. The opinion repeated an earlier conclusion that the Commission's statutory powers involved continuing and substantial sovereign authority.

Q: Could the same person hold both seats under the 2006 opinion?

A: No. Because the AG treated both positions as offices, it concluded that concurrent service contravened the constitutional dual-office provision.

Background and statutory framework

The opinion applied Article XVII, section 1A of the South Carolina Constitution. It described the office-holding test as involving an exercise of state sovereign power and noted other possible indicators, such as statutory creation, duties, compensation, qualifications, and an oath.

Citations and references

• S.C. Constitution, Article XVII, section 1A: the dual-office provision discussed by the AG.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907): the sovereign-power test cited in the opinion.

Official title

Questioning whether serving on both the Board of the State Human Affairs Commission and Board of the Beaufort County Board of Elections constitutes as dual office holding.

Requester

The Honorable William G. Herbkersman, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-18-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06may18-Herbkersman.pdf

Original opinion text

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HENRY MCMASTER
ATIORNEY GENERAL

May 18, 2006

The Honorable William G. Herbkersman
Member, House of Representatives
151 Gascoigne Bluff
Bluffton, South Carolina 299 10
Dear Representative Herbkersman:
You forwarded a letter to this office on behalf of an individual who is currently a member of the State Human Affairs Commission and who has been asked to serve on the Beaufort County Board of Elections. The question has been raised as to whether serving on both boards presents a conflict. In responding to your question, it must be determined whether the simultaneous serving in both capacities would constitute dual office holding in violation of this State's Constitution. I

Article XVII, §IA of the South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time ... 11 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. For this provision to be contravened, a person concurrently must bold two offices which have duties involving an exercise ofsome portion ofthe sovereign power ofthe 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 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).

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This office has advised previously that members of county voter registration boards and members of county election commissions would both be considered office holders for purposes of dual office holding. See, Op. S. C. Atty. Gen. July 8, 2005. It has also been detennined that members of county boards ofelections and registration would hold offices for purposes of dual office holding. Op. S.C. Atty. Gen., July 9, 1998 (Allendale County Board ofElections and Registration); July 23, 1996 (Beaufort County Board ofElections and Registration); March 23, 1995 (Union County Board of Election and Registration). Accordingly, it is my opinion that a member of the Beaufort County Board of Elections is an office holder for purposes of dual office holding.

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The Honorable William G. Herbkersman
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May 18, 2006

The State Human Affairs Commission was created pursuant to S.C. Code Ann.§§ 1-13-10 et seq. A prior opinion of this office dated June 6, 1979 stated in part that such statutes " ... grant the Commission numerous powers which involve a continuing and substantial exercise of the sovereign power of the State... Therefore, membership on the Commission is an office within the meaning of Article XVII, § lA."

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Consistent with these prior opinions, it is my opinion that an individual simultaneously serving on the Beaufort County Board of Elections and as a member of the State Human Affairs Commission would contravene the dual office holding provisions of the State Constitution.

If there are any questions, please advise.
Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General