Could one person serve on both a county planning commission and South Carolina’s technical education board?

Plain-English summary

A Horry County attorney asked whether one person could sit on the county planning commission and the State Board for Technical and Comprehensive Education. The May 2001 AG letter said both positions counted as public offices for South Carolina’s ban on holding two offices of honor or profit at once. Concurrent service therefore violated the constitutional rule.

The letter said assumption of the second office automatically vacated the first. The person could still act in the first role as a de facto officer until a successor was selected, and acts involving the public or third parties generally remained effective unless a court ruled otherwise.

Currency note

This opinion was issued in 2001. 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

County planning commissioners

The AG relied on earlier office opinions treating county planning-commission members, including Horry County members, as public officers for dual-office purposes.

State technical education board members

The letter pointed to the board’s statutory power over state technical institutions, contracts, regulations, and programs as reasons its members exercised public authority.

Common questions

Could one person hold both board seats?
A: The AG said no, because both were public offices under the constitutional prohibition.

Which office was lost on taking the second?
A: The letter said the previously held office was vacated by operation of law.

Were actions in the first office automatically invalid afterward? A: No. The AG said a de facto officer’s public-facing acts remained effective unless a court declared them void or removed the person.

Background and statutory framework

The opinion applied Article XVII, Section IA of the South Carolina Constitution. It cited Sanders v. Belue and State v. Crenshaw on what makes a position a public office and §59-53-10 on the technical education board’s appointment and powers.

Citations and references

• §59-53-10: state-board composition and powers discussed by the AG.
• Sanders v. Belue and State v. Crenshaw: public-office tests cited in the letter.

Official title

Concerning whether a dual office holding situation exists if a member of the Horry County Planning Commission and the South Carolina State Board for Technical and Comprehensive Education.

Requester

Mr. John L. Weaver, III, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-8-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01may-8-weaver.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M . CONDON
ATIORNEY GENERAL

May 8, 2001

Mr. John L. Weaver, III, Esq.
Horry County Attorney
1001 2nd A venue
Post Office Box 1236
Conway, South Carolina 29528
Dear Mr. Weaver:
By your letter of April 27, 2001 you have asked whether a dual office holding situation would exist if an individual were to serve simultaneously on the Horry County Planning Commission and the South Carolina State Board for Technical and Comprehensive Education. For the reasons set forth below, it is my opinion that concurrent service on these governmental bodies would violate the dual office holding prohibitions of the South Carolina Constitution. The individual in question, however, 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. 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 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). "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."

REMBERT

c. DENNIS BUILDING • Posr OFFICE Box 11549 • COLUMBIA, s.c. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

A)J' /) , , ~. ,,/ rV_'y/,, ~

Mr. Weaver
Page2
May 8, 2001
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).

I
I

Numerous prior opinions of this Office have held that amember of a county planning commission would hold an office for dual office holding purposes. See, e.g., Ops. Atty. Gen. dated August 6, 1991; January 10, 1990 and January 23, 1989. In fact, in opinions dated June 24, 1982 and January 15, 1985, this Office concluded that members of the Horry County Planning Commission are considered officers for dual office holding purposes. Of course, this Office does not withdraw or overrule a prior opinion unless it is clearly erroneous or unless intervening circumstances warrant such. Our review of the relevant statutes as well as these prior opinions does not compel the determination that the interpretations reached therein are clearly erroneous. Accordingly, we must adhere to the conclusions of these prior opinions. Therefore, it must now be determined whether membership on the State Board for Technical and Comprehensive Education would likewise constitute an office. The State Board for Technical and Comprehensive Education was created by S.C. Code Ann. §§59-53-10 et seq. Pursuant to §59-53-10, board members are appointed by the Governor for terms of six years and until their successors are appointed and qualify. Section 59-53-10 also authorizes the Board to enter into contracts and promulgate regulations. Section 59-53-20 imparts the Board with jurisdiction over "all state-supported technical institutions and their programs that are presently operating and any created in the future." Additional powers and duties are enumerated in §59-53-50, which include: developing, implementing coordinating and operating adequate post-high school vocational, technical and occupational diploma and associate degree courses; establishing criteria for approving and awarding diplomas and degrees; accepting and administering donations of funds, grants and real property from individuals, corporations, foundations and governmental bodies; and employing an executive director and such other personnel as may be necessary to fulfill its duties and responsibilities. Such powers and duties are closely analogous to those exercised by trustees of the State's various colleges and universities. Prior Attorney General's opinions have consistently held that college and university trustees undoubtedly exercise a portion of the State's sovereign power. See, e.g., Ops. Atty. Gen. dated October 18, 2000 (Lander University Board of Trustees); March 30, 2000 (Medical University Board of Trustees); November 21, 1996 (South Carolina State University Board of Trustees); and many others. Finally, in an opinion dated March 22, 1995, Attorney General Charles M. Condon concluded that membership on the State Board for Technical and Comprehensive Education" ... would constitute an office for dual office holding purposes[.]" Thus, based upon the reasoning and conclusions of these earlier opinions, a member of the State Board

Mr. Weaver
Page 3
May 8, 200I

for Technical and Comprehensive Education most likely holds an office within the meaning of Art. XVII, Sec. IA of the South Carolina Constitution. Accordingly, it is my opinion that a member of the Horry County Planning Commission may not simultaneously serve on the South Carolina State Board for Technical and Comprehensive Education without violating the dual office holding prohibitions of the State Constitution. 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 S.C. Const. Art. XVII, Sec. IA of the Constitution, 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. Nevertheless, the individual may continue to perform the duties of the previously held office as a de facto officer, 1 rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties ifthe term of service is indefinite). See, Walker v. Harris, I70 S.C. 242 (1933); Dovev. Kirkland, 92 S.C. 313 (19I2); Statev. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. I 56 (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 I66 (1976); State ex rel. McLeod v. West, 249 S.C. 243, I53 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stroh. 92 (S.C. I 848). I trust this information is responsive to your inquiry and that you will not hesitate to contact me if I can be of additional assistance. Sincerely,

IJ.. ~ AJdl~-w:..
Zeb C. Williams, III
Deputy Attorney General

1

A de jure officer is "one who is in all respects legally appointed and qualified to exercise the office." 63 Am.Jur.2d Public Officers and Employees §495. A de facto officer is "one who is in possession of an office, in good faith, entered by right, claiming to be entitled thereto, and discharging its duties under color of authority." Heyward v. Long, 178 S.C. 35I, 183 S.E. I45, 151 (1936); see also Smith v. City Council of Charleston, 198S.C.313, I 7 S.E.2d 860 (1942) and Bradford v. Byrnes, 22I S.C. 255, 70 S.E.2d 228 (1952).