Did membership on South Carolina's Minority Affairs Commission count as holding a public office under the dual-office rule?

Plain-English summary

In 2000, the South Carolina Attorney General concluded that service on the State Commission for Minority Affairs did not count as holding a public office under the state constitution's dual-office restriction. The deciding point was the nature of the commission's work: its duties under § 1-31-40 were chiefly advisory and did not involve exercising the state's sovereign power.

The opinion acknowledged features that can suggest a public office, including a statutory term and the apparent administration of an oath. It found them less important than the commission's actual powers. Its conclusion concerned membership on this commission, not every position called a commission seat.

Currency note

This opinion was issued in 2000. 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: Could a South Carolina officeholder also serve on the Minority Affairs Commission under this opinion? A: The opinion concluded that a commission member was not an officer for dual-office purposes, because the commission's assigned duties were chiefly advisory. It did not evaluate any particular person's other position.

Q: Did the commission's four-year term make its members public officers? A: No. The opinion noted the term as one relevant feature, but treated the lack of sovereign power in the commission's duties as decisive.

Q: What did the commission do at the time?
A: The opinion described statistical and technical assistance, publication of a statewide statistical abstract, and assistance and information concerning Voting Rights Act submissions and related minority-community concerns.

Background and legal framework

The opinion applied Article XVII, Section IA of the South Carolina Constitution. It explained that the dual-office prohibition required two concurrent offices whose duties exercised some portion of state sovereign power. It cited Sanders v. Belue for that principle and State v. Crenshaw for additional factors, such as a position's statutory creation, tenure, duties, salary, qualifications, and oath. The commission was created by statute, but the Attorney General read its specified duties as advisory and reached the same conclusion as two earlier informal opinions.

Citations and references

• South Carolina Constitution, Article XVII, Section IA: dual-office provision discussed in the opinion.
• S.C. Code Ann.,§ 1-31-10 et seq. and § 1-31-40: commission structure and duties as described in the opinion.
• Sanders v. Belue and State v. Crenshaw: public-office tests cited by the opinion.

Official title

Requesting as to whether service on the South Carolina Commission for Minority Affairs constitutes an office for purposes of Article XVII, Sec. 1A of the South Carolina Constitution.

Requester

The Honorable Maggie W. Glover, South Carolina State Senate

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-2-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00may2glover.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLES M . CO NDON
ATIORNE Y GENERAL

May 2, 2000

The Honorable Maggie W. Glover
South Carolina State Senate
Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Glover:
By your letter of April 25, 2000, you have requested this Office 's formal opinion as to whether service on the South Carolina Commission for Minority Affairs constitutes an office for the purposes of Article XVII, Sec. 1A of the South Carolina Constitution. As noted in your request letter, this Office has issued two previous informal opinions which concluded that a commission member would not be considered an office holder for dual office holding purposes. See, Ops. AtD:. Gen. dated November 21 , 1996 and October 8, 1998.

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Article XVII, Section IA 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 an officer in the militia, a member of a lawfully and regularly organized fire department, constable, or a notary public. As concluded by Attorney General Daniel McLeod in an opinion dated April 26, 1977, "[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula. " The South Carolina Supreme Court, though, has held that for this provision to be contravened, a person concurrently must hold tvvo 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." Id. , 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes, or other 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).

The Honorable Maggie W. Glover
Page 2
May 2, 2000

The State Commission for Minority Affairs was established by Act of the General Assembly, now codified at S.C. Code Ann.,§ 1-31-10 et seq. (1995 Cum. Supp.). Section 1-31-10 provides for a term of four years and until a member's successor has been appointed and qualifies. Though commissioners are apparently issued an oath of office, there is no specific statutory requirement to do so. Moreover, no provision is made for compensation of members. Most important of all, however, the duties to be exercised pursuant to§ 1-31-40 are chiefly advisory in nature: to "provide the minority community with a single point of contact for statistical and technical assistance ... [to] provide for publication of a statewide statistical abstract on minority affairs ... [to] provide the minority community with assistance and information on Voting Rights Act submissions in the State, as well as other related areas of concern to the minority community .... " Such duties lack an exercise of sovereign power. This Office has concluded on numerous occasions that members of advisory bodies are not considered office holders. See, e.g., Ops. Atty. Gen. dated May 9, 1989 (Indigent Care Advisory Board); May 15, 1989 (Work Support Advisory Council); and October 12, 1990 (Beaufort County Aviation Board). Therefore, consistent with our earlier opinions, it is the opinion of this Office that a member of the Minority Affairs Commission should not be considered an officer for dual office holding purposes. I trust this information is responsive to your inquiry and that you will not hesitate to contact me if I can be of further assistance. Very truly yours,

71;1/J

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Paul M. Koch
Assistant Attorney General
REVIE\VED AND APPROVED:

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ffeb C. Williams, III

Deputy Attorney General