Could a Florence city council member also sit on a nonprofit microloan advisory committee?

Plain-English summary

Florence’s city attorney asked whether a city council member could also serve on the Micro-Loan Program Advisory Committee. The Deputy AG said the combination did not violate South Carolina’s dual-office prohibition on the facts supplied.

City council membership was already treated as a public office. The decisive issue was the advisory committee. It had been created by a charitable organization, its duties were not prescribed by state law, and its main task of deciding loan eligibility did not appear to exercise the state’s sovereign power. The Deputy AG therefore did not treat the committee seat as a second public office.

Currency note

This opinion was issued in 1997. 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 Florence council seat considered a public office? A: Yes. The letter said earlier office opinions had treated city council membership as an office for this constitutional test.

Q: Was the microloan advisory seat also a public office? A: The Deputy AG said no on the information given, because the private organization created the committee and its loan decisions did not appear to involve state sovereign power.

Q: Did the opinion decide the status of every nonprofit advisory board? A: No. It addressed this committee’s creation and duties as described to the office.

Background and statutory framework

The author applied Article XVII, Section 1A of the South Carolina Constitution using the public-office test in Sanders v. Belue and State v. Crenshaw, including exercise of sovereign power and whether law establishes the position or prescribes its duties.

Citations and references

Constitution discussed: Article XVII, Section 1A. Cases discussed: Sanders v. Belue; State v. Crenshaw.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-8-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97may8peterson.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY C< ;'.UO'\
ATTORNEY GENERAL

May 8, 1997

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VIA U.S. MAIL AND FAX (803) 662-1779
James W. Peterson, Jr., Esquire
Office of the City Attorney
City-County Complex AA
180 N. Irby Street
Florence. South Carolina 29501-3456
Re: Informal Opinion
Dear Jim:
By your letter of May 6, 1997, you have inquired whether a member of Florence City Council could simultaneously serve as a member of the Micro-Loan Program Advisory Conunittee without violating the prohibition against dual office holding of the State Constitution. 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, member of a lawfully and regularly organized fire department. constable, or a notary public. For this provision to be contravened, a person concurrently must hold two public offices which have duties involving an exercise of some po11ion 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 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). This Office has advised previously that a member of a city council would be considered an officer for dual office holding purposes. See Ops. Atty. Gen. dated July 13, 1995; February 4. 1994; July 23, 1993; September 7, 1989; and many others. Thus, the only remaining issue is whether membership on the Micro-Loan Program Advisory

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TELEPHONE:

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FACSIMILE: 803-253-6283

Mr. Peterson
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May 8, 1997

Committee would constitute an office for the purposes of Article XVII, Section 1A of the South Carolina Constitution.

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Based on the information you provided, the five member Micro-Loan Program Advisory Committee was established by an eleemosynary organization formed in compliance with the requirements of§ 501(c)(3) of the Internal Revenue Code. Thus, the advisory committee's duties and responsibilities are not defined in the general statutory laws of this State. Moreover, the advisory committee's main duty -- to make loan eligibility determinations -- does not appear to involve an exercise of the state's sovereign power. Accordingly, the Office is of the opinion that membership on the Micro-Loan Advisory Committee does not constitute an office within the meaning of the South Carolina Constitution's prohibition against dual office holding, and the same individual can be both a member of this Committee and a member of Florence City Council. This letter is an informal opinion only. It has been written by a designated Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. Sincerely yours,

/.elZeb C. Williams, III
Deputy Attorney General
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