Could one person serve on both a local tourism advisory committee and South Carolina's tourism spending review committee?

Plain-English summary

The chairman of South Carolina's Tourism Expenditure Review Committee asked whether a member of a local tourism advisory committee could also serve on the state committee. In an informal 2002 letter, the Attorney General repeated an earlier opinion's answer: that combination did not violate the constitutional rule against holding two public offices. The local committee only recommended how accommodations-tax money should be spent, while the state committee could review questionable spending and direct the State Treasurer to withhold funds.

The letter did not settle every concern about serving on both committees. It acknowledged a possible conflict because local recommendations could later be reviewed by the state committee. The AG said interpretation of the ethics law on that issue belonged primarily to the State Ethics Commission and deferred to it. The earlier opinion said to be enclosed was not reproduced in the official PDF, but the 2002 letter quotes its relevant reasoning and conclusion.

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

Local advisory committee members

Under S.C. Code Ann. Section 6-4-25 as described in the letter, a local accommodations-tax advisory committee made recommendations on spending. The AG said its members did not exercise sovereign power and therefore did not hold a public office for the dual-office rule.

State tourism review committee members

The state committee's authority to review expenditures and cause withholding of local funds made its seat a public office in the AG's analysis. Its four-year term was another factor. A person could hold that office while also serving on the local advisory committee, but the AG left any ethics conflict to the State Ethics Commission.

Common questions

Did holding both tourism committee seats violate the dual-office rule? A: The AG said no because only the state review committee seat counted as a public office in this comparison.

Why was the state review seat an office?
A: The letter pointed to its power over questionable tourism spending, including authority that could lead the State Treasurer to withhold funds from a local government.

Did the AG clear the arrangement under the ethics law?
A: No. He recognized a possible conflict and said the State Ethics Commission had primary responsibility for interpreting that law.

Background and statutory framework

The answer turned on the public-office test discussed in Sanders v. Belue and State v. Crenshaw. The local committee was advisory, while the state committee had oversight power. The letter also discussed the State Ethics Commission's assigned interpretive role and called itself an informal opinion by an Assistant Deputy Attorney General.

Citations and references

• S.C. Code Ann. Section 6-4-25: local accommodations-tax advisory committee described in the letter.
• Sanders v. Belue and State v. Crenshaw: public-office test cited in the opinion.

Official title

Dual-office holding on local and state tourism expenditure committees.

Requester

Frans N. Mustert, Chairman, Tourism Expenditure Review Committee

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-6-2002-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02may6mustert.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARL ES M. CONDON
ATIORNEY GENERAL

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May 6, 2002

Frans N. Mustert, Chairman
Tourism Expenditure Review Committee
P. 0. Box 125
Columbia, South Carolina 29214-0120

Re:

Informal Opinion

Dear Mr. Mustert:
You have asked whether a member of a local tourism advisory committee also may serve on the State Tourism Expenditure Review Committee without violating the dual office holding provision of the South Carolina Constitution. I am enclosing a copy of an opinion written by this Office on September 14, 200 I which addresses your question. In that opinion, we noted that pursuant to S.C. Code Ann. Section 6-4-25, a municipality or county receiving a certain amount of revenue from an accommodations tax must appoint an advisory committee to make recommendations on the expenditure ofrevenue generated from the accommodations tax. The advisory committee, as you note, consists of seven members with a majority of the committee members being selected from the hospital ity industry of the municipality or county receiving the revenue. Applying the standards set forth by our Supreme Court in Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (I 907) and State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980), we concluded that advisory board membership did not constitute an office. As we noted, among other things, (t]he members are authorized only to make recommendations as to expenditures of revenues; they are not charged with the exercise of a portion of the sovereign power of the State. In addition, we noted for future reference that "service on the Tourism Expenditure Review Committee would constitute office holding." We elaborated as follows:
[i]n contrast to the position of the advisory Accommodations Tax Committee, a member of the Tourism Expenditure Review Committee does exercise some sovereign power of the state. Act No. 74 of the 200 I Acts and Joint Resolutions states that the Committee "shall serve as the oversight authority on all questionable tourism-related expenditures

REMBERT C . DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

Mr. Mustert
Page 2
May 6, 2002

and to that end, all reports filed pursuant to Section 26 6-4-25(D)(3) must be forwarded to the committee for review to determine if they are in compliance with this chapter." Furthermore, if the committee deems a local expenditure ofaccommodations tax improper," it shall certify the noncompliance to the State Treasurer, who shall withhold the amount of the expenditure found in noncompliance from subsequent distributions in accommodations tax revenue otherwise due the municipality or county." In other words, the Committee has the authority to direct the State Treasurer to withhold funds from a local government. This authority, as well as other indicia in Act 74, such as the prescribed four-year term of office, compels me to conclude that a member of the Tourism Expenditure Review Committee would hold an office for dual office holding purposes. However, for the reasons I stated above, one who is a member of the Tourism Review Committee could serve on an advisory committee without contravening the dual office holding provisions of the Constitution. While the earlier opinion concluded that it would not constitute dual office holding to hold the positions of membership on the advisory committee and the Tourism Expenditure Review Committee, the opinion also cautioned about a potential conflict of interest in holding the two positions. It was noted therein that

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... because the County Accommodations Tax Committee makes recommendations to the county on expenditures that are ultimately reviewed by the Tourism Expenditure Review Committee, arguably a conflict of interest exists. Ascertaining whether such dual service creates a conflict of interest requires an interpretation of the Ethics, Government Accountability and Campaign Reform Act of 1991, specifically S.C. Code Ann. § 8-13700(B). Pursuant to S.C. Code Ann.§ 8-13-320(11 ), the South Carolina General Assembly has delegated primary responsibility for interpreting the Act's provisions to the South Carolina State Ethics Commission. Accordingly, this Office must defer to the State Ethics Commission in regard to this particular issue. You may contract the Commission by writing to Mr. Herbert Hayden, Executive Director, State Ethics Commission, 5000 Thurmond Mall, Suite 250, Columbia, S.C. 29201. 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 asked. It has not, however, been personally scrutinized by the Attorney General and not officially published in the manner of a formal opinion. Since1y,

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Rohert D. Cook
Assistant Deputy Attorney General
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Enclosure