Could one person serve on both a South Carolina safety review board and a county election commission?

Plain-English summary

The Attorney General concluded that membership on the South Carolina Occupational Safety and Health Review Board and the Georgetown County Election Commission each counted as a public office. Serving on both at once therefore violated the state constitution’s dual-office rule. Taking the second position automatically vacated the first. The person could continue to act in the first role as a de facto officer until a successor was chosen, with acts affecting the public or third parties treated as valid unless a court ruled otherwise.

Currency note

This opinion was issued in 2003. 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

The AG said election commissioners exercised sovereign power. It viewed the safety board’s review of citations and fines, including final orders, as a discretionary quasi-judicial function. The opinion said that accepting the second position created a vacancy in the first, while the de facto officer doctrine protected certain acts until judicial action.

Common questions

Did both seats count as public offices?
Yes. The AG concluded that each involved an exercise of state sovereign power.

What happened to the first seat when the second was accepted?
The opinion said the first office was vacated by operation of law.

Were actions taken afterward automatically void?
No. The opinion said acts by a de facto officer affecting the public or third parties remained valid unless a court acted.

Background and statutory framework

A representative asked about simultaneous service on the state safety review board and a county election commission. The opinion applied the constitutional dual-office rule, analyzed the duties and powers of both positions, and described the de facto officer consequence when someone accepted a second office.

Citations and references

The opinion discussed Article XVII, Section 1A of the South Carolina Constitution and cited Sanders v. Belue on the sovereign-power test.

Official title

Regarding dual office holding. Specifically, whether a position on the South Carolina Occupational Safety and Health Review Board that is held simultaneously with a position on the Georgetown County Election Commission, appointed by County Council, violates the South Carolina Constitution.

Requester

The Honorable Vida O. Miller, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-27-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03may-27-Miller.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
AITORNEY GENERAL

May 27, 2003

The Honorable Vida 0. Miller
House District No. 108
P.O. Box 11867
434-A Blatt Building
Columbia, SC 29211

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Dear Representative Miller:

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You have requested an advisory opinion from .this Office regarding dual office holding. By way of background, you have inquired whether a position on the South Carolina Occupational Safety and Health Review Board that is held simultaneously with a position on the Georgetown County Election Commission, appointed by County Council, violates the South Carolina Constitution. Law/Analysis

Article XVII, Section IA of the State 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, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must hold two 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 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). This Office has previously advised on numerous occasions that one who would serve on an election commission or voter registration board is considered an office holder for dual office holding purposes. See, Ops. Atty. Gen. dated February 23, 1995 (City of Bishopville Election Commission); September 12, 1990 (Florence County Election Commission); and July 24, 1980 (City of Greenville Election Commission) as representative of those opinions concluding that county election commission members would be office holders; and see Op. Atty. Gen., May 6, 1992; June 19, 1987; and July 11, 1984 as representative of those opinions concluding that one who would serve on a voter registration board would be an office holder. See also, Op. Atty. Gen., March 23, 1995, concluding that members of the Union County Board of Election and

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c. DENNIS Bllll..DING • POST OFFICE Box 11549 • COLUMBIA, s.c. 29211-1549 • TELEPHONE : 803-734-3970 • f ACSIMn.E: 803-253-6283

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The Honorable Vida 0. Miller
Page 2
May 22, 2003
Registration Board holds an office for dual office holding purposes. Therefore, based upon the reasoning and conclusions of these earlier opinions, this Office advises that a member of the Georgetown County Election Commission would hold an office for dual office holding purposes. Turning now to the question of whether a member of the South Carolina Occupational Safety and Health Review Board would be considered an office holder for dual office holding purposes, to be an office holder, one must exercise some portion of the sovereign power of the state. For example, the court in Sanders v. Belue, supra, acknowledged that there is a generally accepted distinction between an official who exercises the sovereign power of the state, and someone who is simply an employee that does not hold an office. Furthermore, this Office on occasion has issued opinions concerning certain positions that are advisory in nature and do not constitute an office for dual office holding purposes. See, Op. Atty. Gen., March 19, 2003, concluding that members of the Hampton County Economic Development Board, and other similar county development entities do not hold an office for purposes of dual office holding. The threshold issue is a determination of whether a member of the South Carolina Occupational Safety and Health Review Board exercises some portion of the sovereign power of the state. Sanders v. Belue. The Review Board was created legislatively by S.C. Code Ann. §4115-310. Section 41-15-310 states:

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Notwithstanding the above provisions of this section, on October 1, 1983, or such later time as the South Carolina Occupational Health and Safety Review Board is duly constituted, the Director of the Department of Labor, Licensing, and Regulation or his designee shall cease to provide administrative review pursuant to this section. All matters pending before the Director of the Department of Labor, Licensing, and Regulation or his designee pursuant to this section and the regulations hereunder shall be transferred to the South Carolina Occupational Safety and Health Review Board on October 1, 1983, or such later time as it is duly constituted. The South Carolina Occupational Safety and Health Review Board has been entrusted with the enforcement of the health and safety regulations of the state of South Carolina. SC ADC R.71-400, et seq. The primary purpose of the Review Board is to review citations and fines that are issued by health and safety compliance officers. SCADC R.127-1.1 et seq. Further, the Review Board's decision becomes the final order on the validity of the citation for safety and health violations, as well as reasonableness of the fine to be paid. Id. Thus, the Review Board is imparted with significant quasi-judicial responsibilities. This Office has concluded on numerous occasions that members of bodies whose duties are quasi-judicial in nature and involve the exercise of discretion are office holders. See, e.g., Ops. Atty. Gen. dated August 3, 2000; August 6, 1991; and June 1, 1984. Therefore, based upon the reasoning and conclusions of these earlier opinions, such a position would clearly involve an exercise of the sovereign power of the state.

The Honorable Vida 0. Miller
Page 3
May 22, 2003
This office therefore advises that in regards to both the Georgetown County Election Commission and the South Carolina Occupational Safety and Health Review Board, a member thereof would hold an office for dual office holding purposes. Accordingly, in our opinion serving simultaneously on the Georgetown County Election Commission as well as on the South Carolina Occupational Safety and Health Review Board would constitute dual office holding.

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When a dual office holding situation occurs, the law operates automatically to "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the purview of Article XVII, Section 1A of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dove v. Kirkland, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. 156 (1877). Furthermore, actions taken by a de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848).

Cook
Assistant Deputy Attorney General