Could a South Carolina Minority Affairs commissioner also serve on the State University board?

Plain-English summary

In a 1996 informal opinion, a deputy attorney general considered whether one person could serve on the State Commission on Minority Affairs and the South Carolina State University Board of Trustees. He said the university trusteeship was a public office for the state constitution's dual-office rule. Commission membership, however, was most probably not an office because its duties were chiefly informational and consultative, without an exercise of sovereign power. On that basis, he concluded simultaneous service was permissible.

The author applied a broader office test that considered sovereign power and features such as legally specified tenure, duties, salary, qualifications, and oath. The commission had a statutory term but no stated oath or compensation, and its listed responsibilities centered on assistance and information. The letter separately noted that ethics or conflict questions could be directed to the State Ethics Commission; it did not decide any specific conflict.

Currency note

This opinion was issued in 1996. 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: Did the opinion treat the university trustee seat as a public office?
A: Yes. It relied on an earlier AG opinion reaching that conclusion for the dual-office rule.

Q: Why did the commission seat not trigger the same rule?
A: The author considered its duties consultative rather than an exercise of state sovereign power and said it was most probably not an office.

Q: Did the dual-office conclusion also clear every ethics issue?
A: No. The letter left possible ethics or conflict questions to the State Ethics Commission.

Background and legal framework

The commissioner asked whether state constitutional limits on holding two offices prevented the proposed service. The author reviewed the constitutional office test, an earlier AG treatment of university trustees, and the statute creating the minority-affairs commission. He applied the commission's stated duties to the sovereign-power element and found that the dual-office prohibition was not triggered on his analysis.

This was an informal opinion signed by a deputy attorney general, not a formal opinion personally reviewed by the Attorney General.

Citations and references

• The letter discussed the state constitutional dual-office prohibition and the statute creating the Minority Affairs Commission.

Official title

Concerning whether a dual office holding situation exists if a member of the State Commission on Minority Affairs simultaneously serves as a member of the South Carolina State University Board of Trustees

Requester

The Honorable James Furtick, Jr., Commissioner, SC Commission for Minority Affairs

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-21-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96nov21furtick.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

November 21, 1996

The Honorable James Furtick, Jr.
Commissioner, SC Commission for Minority Affairs
1349 Edisto Drive, SW
Orangeburg, South Carolina 29115-7123
Re: Informal Opinion
Dear Commissioner Furtick:
By your letter of November 7, 1996, you have inquired whether the South Carolina Constitution's prohibition against dual office holding precludes you from serving simultaneously on the State Commission on Minority Affairs and as a member of the South Carolina State University Board of Trustees. Article XVII, Sec. IA of the South Carolina Constitution provides that " ... no person shall hold two offices of honor or profit at the same time." For this provision to be contravened, a person concurrently must hold two public 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 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). Moreover, where a person holding one office of trust or profit is elected or appointed to another such office, and qualifies in the latter capacity, he thereby vacates the first office, and qualifies in the latter capacity, he thereby vacates the first office to which he was elected or appointed~ and lawfully holds the second office. Walker v. Harris, 170 S.C. 242, 170 S.E. 270 (1 933). This Office has previously stated that one who would serve on the Board of Trustees of South Carolina State University would be regardeq as occupying an office for the purposes of Article XVII, Sec. IA of the State Constitution. See enclosed copy of Op .
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PoSTOrnce 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

The Honorable James Furtick, Jr.
Page 2
November 21, 1996
Atty. Gen. 86-43 (March 25, 1986). Accordingly, we must also examine whether a member of the State Commission on Minority Affairs would be considered an office holder for dual office holding purposes. The State Commission for Minority Affairs was established by Act of the General Assembly, now codified at S.C. Code Ann.,§ 1-31-10 et seq. (1995 Cwn. Supp.). Section 1-31-10 prnvides for a term of_four years and until a member's successor has been appointed and qualifies. No specific provisions are made for board members to take an oath, and there is no provision for compensation of members. The duties to be exercised pursuant to § 1-31-40 are chiefly informative: to "provide the minority community with a single point of contact for statistical and technical assistance . . . [to] provide for publication of a statewide statistical abstract on minority affairs ... [to] provide the minority community with assistance and information on Voting Rights Act submissions in the State, as well as other related areas of concern to the minority community .... " These duties are consultive in nature and lack an exercise of sovereign power. Thus, because many of the indicia of an office are lacking with respect to this position, it is my opinion that membership on the Minority Affairs Commission is most probably not an office. Based on the foregoing, one who serves on the State Minority Affairs Commission could also serve on the South Carolina State University Board of Trustees. Should any questions arise concerning ethics or conflicts of interest, you may wish to consult with the State Ethics Commission since that agency has primary responsibility for interpreting and enforcing the requirements of the State Ethics Act. 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. Very truly yours,

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Zeb C. \Villiams, III
Deputy Attorney General
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Enclosure