Could a county airport or stadium commission director also sit on the county alcohol and drug abuse commission board?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that a person serving as director of the Union County Airport Commission or Union County Stadium Commission could also serve on the Union County Commission on Alcohol and Drug Abuse board without violating the state constitution's dual office holding prohibition. The alcohol and drug abuse board seat counted as a public office. The director positions, however, were administrative jobs rather than public offices, so the combination did not amount to holding two public offices.

The opinion distinguished being a commission director from being a commission board member. Earlier AG opinions treated airport commission board membership and city stadium authority membership as public offices. The director ordinarily served at the pleasure of the governing board as an employee. The conclusion applied to the director roles described in the request.

Currency note

This opinion was issued in 2011. 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

Could a county airport commission director also serve on the alcohol and drug abuse commission board? A: The AG concluded that this combination did not violate the constitutional ban on holding two public offices because the director position was administrative employment.

Did the alcohol and drug abuse board seat count as a public office? A: Yes. The AG followed its earlier opinions treating members of county alcohol and drug abuse commission boards, including Union County's, as public officers.

Was a commission director the same as a board member for this rule? A: No. The opinion distinguished the administrative director position from commission board membership, which earlier opinions had treated as a public office.

What about the stadium commission director?
A: The AG reached the same conclusion for that director position: it was not a public office for purposes of the dual office holding question presented.

Background and statutory framework

The executive director of Union County's alcohol and drug abuse commission asked whether a person directing both the county airport and stadium commissions could join her commission's board. The AG applied Article XVII, Section lA of the state constitution, which prohibited simultaneous holding of two offices of honor or profit. It examined whether each role involved the exercise of sovereign power and followed earlier opinions distinguishing governing board members from employees who direct an agency's daily work.

Citations and references

The opinion quotes Article XVII, Section lA and discusses Sanders v. Belue and State v. Crenshaw in describing a public office. Its conclusion also relies on earlier South Carolina AG opinions about county commission board members and administrative directors.

Official title

Asking whether an individual, who is currently the Director of both the Union County Airport Commission and the Union County Stadium Commission, may be appointed by the Union County Council to serve on the Board of Directors for the Union County Commission on Alcohol and Drug Abuse without violating the State’s prohibition on dual office holding.

Requester

Chrissy Mobley, Executive Director, Union County Commission on Alcohol and Drug Abuse

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-15-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/11/mobley-c-os-9351-11-15-11-dual-office-holding.pdf

Original opinion text

ALAN WILSON

ATIORNEY GENERAL

November 15, 2011

Chrissy Mobley, Executive Director
Union County Commission on Alcohol and Drug Abuse
Post Office Box 844
Union, South Carolina 29379
Dear Ms. Mobley,
We received your letter requesting an opinion of this Office concerning dual office holding. You ask whether an individual, who is currently the Director of both the Union County Airport Commission and the Union County Stadium Commission, may be appointed by the Union County Council to serve on the Board of Directors for the Union County Commission on Alcohol and Drug Abuse without violating the State's prohibition on dual office holding. Law/Analysis

Article XVII, Section lA of the South Carolina Constitution provides that "[n]o person may hold two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public." For a violation of this provision to occur, an individual must concurrently hold two public offices which have duties "involving an exercise of some part of the sovereign power" of the State. Sanders v. Belue, 78 S.C. 171, 174, 58 S.E.2d 762, 763 (1907). A public officer is "[o]ne who is charged by law with duties involving an exercise of some part of the sovereign power, either great or small, in the perfonnance of which the public is concerned, and which are continuing, and not occasional intennittent, is a public officer." Id., 58 S.E.2d at 762-63. Other relevant considerations include: "whether the position was created by the legislature; whether the qualifications for appointment are established; whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others." State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61 , 62 (1980). This Office has consistently opined that board members of county commissions on alcohol and drug abuse, including that of Union County, are public officers for purposes of dual office holding. See Ops. S.C. Atty. Gen., April 22, 2005 (Union); May 6, 1992; December IO, 1991; January 17, 1985; February 13, 1984; and March 6, 1989. Therefore, the question is whether the position of director for either a county airport commission or a county stadium commission would likewise be considered a public office. On numerous occasions, this Office has concluded that board members of county airport commissions are public officers for purposes of dual office holding. See Ops. Atty. Gen., October 14,

REMBERT

c. DENNIS BUILDING • POST OFFICE Box 11549 • CoUJMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Ms. Mobley
Page 2
November 15, 2011
2010; August 29, 2005; July 11, 2005; January 17, 2001; April 29, 1985; January 19, 1983; November 9, 1982; and August 22, 1975. Likewise, we have previously opined that membership on a city stadium authority would constitute a public office. Op. S.C. Atty. Gen., February 24, 1975. However, we have also repeatedly expressed the opinion that the position of "executive director or director is an administrative position which is not an office." Op. S.C. Atty. Gen., March 31, 2011; see also Ops. S.C. Atty. Gen., August 29, 2005; May 3, 2005; August 19, 2002; June 24, 1994; and May 15, 1989. This is because "[t]he director generally serves at the pleasure of the governing board and would be considered a mere employee." Id.. Consistent with these prior opinions, we believe the Director of either the Union County Airport Commission or the Union County Stadium Commission is not a public officer for purposes of dual office holding. Conclusion Although one's service on the board of directors of a county commission on drug and alcohol abuse would be considered a public office for purposes of dual office holding, we do not believe the position of director for either a county airport commission or a county stadium commission also constitutes such an office. Consistent with prior opinions, we believe no violation of our State Constitution's prohibition against dual office holding results from one's service on the Board of Directors for the Union County Commission on Drug and Alcohol Abuse while simultaneously serving as Director for either the Union County Airport Commission or the Union County Stadium Commission.

rrison D. Brant
Assistant Attorney General
REVIEWED AND APPROVED BY:

Deputy Attorney General