Could someone serve on both the Charleston County Library Board and South Carolina State Board of Education?

Plain-English summary

A requester who served on the Charleston County Library Board asked for a more definite answer about holding that seat at the same time as a seat on the State Board of Education. She supplied the county ordinance creating the library system after an earlier attorney general letter addressed the issue.

The senior assistant attorney general concluded that the library trustees held public offices for purposes of South Carolina’s dual office holding rule. The ordinance gave the board substantial policy, hiring, property, contract, and spending authority. Those duties exercised part of the state’s sovereign power. The opinion said the absence of an express oath requirement or compensation did not change the result. It therefore concluded that simultaneous service on the two boards would violate the constitutional restriction.

Currency note

This opinion was issued in 1995. 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 a Charleston County Library Board trustee a public officer under this opinion? A: Yes. The opinion found that the ordinance gave trustees enough public authority to make the position an office for the constitutional dual office holding rule.

Q: Could a trustee also serve on South Carolina’s State Board of Education? A: The opinion concluded that simultaneous service on those two boards would contravene the state constitution as it was applied in 1995.

Q: Did the lack of pay or an express oath provision keep the library position from being an office? A: No. The opinion specifically considered those missing features and said they were not critical to the office determination.

Background and statutory framework

The opinion applied the South Carolina Constitution’s restriction on holding two offices of honor or profit at the same time. It reviewed the county ordinance’s trustee terms and powers, especially the board’s control of library policy, its power to employ a chief librarian, and its authority over contracts and funds. The opinion treated the exercise of public power as the decisive feature and confirmed an earlier informal opinion addressing the same combination of board seats.

Citations and references

The opinion cites Sanders v. Belue and State v Crenshaw for the public office analysis and identifies the county library statute as §4-9-35 et seq. Its conclusion is specific to the Charleston County ordinance and the two positions described.

Official title

Concerning whether a member of the Charleston County Library Board would be considered an office of honor or profit for purposes of dual office holding.

Requester

Ms. Carol N. Ward

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-28-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/95nov28ward.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

November 28, 1995

i
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Ms. Carol N. Ward
25 Wraggborough Lane
Charleston, South Carolina 29403
RE: Infonnal Opinion
Dear Ms. Ward:
Thank you for your letter of November 20, 1995, following up on my infonnal opinion of October 23, 1995. You had enclosed with your letter a copy of the Charleston County Council's ordinance creating a county public library system for Charleston County, to have determined with more certainty whether your service on the Charleston County Library Board would be considered an office of honor or profit for purposes of dual office holding. As stated in my previous letter, dual office holding is a constitutional issue. 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 µublic. For this provision to be contravened, a person concurre~tly 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). Analysis of the ordinance indicates that the Charleston County Library Board of Trustees was indeed created pursuant to S.C. Code Ann. §4-9-35 et seq. (1976, as revised). See section 1 of the ordinance. Section 2 of the ordinance created the Board of Trustees, to be comprised of eleven members to be appointed by the Charleston County RE\IUtRT

c. DES'11S 13, I! f)[\,(i

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Posr OFFICE Bm 11549

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COLDIBIA. S.C. 29211-1549

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TELEPHO.E:

803-7.14-3970

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FACSIMILE: 803-253-6283

Ms. Carol N. Ward
Page 2
November 28, 1995
Council for terms of four years and until their successors have been appointed and qualified. To the extent feasible, members are to be appointed from all geographic areas of the county. A qualification for membership or appointment, or more appropriately a limitation, is that one may not be appointed for more than two consecutive four-year terms. Section 3 of the ordinance authorized the Board of Trustees to exercise exclusive and complete powers as to the policies of the Charleston County Library System; to employ a chief librarian; acquire and dispose of real property for the use of the Library System (through Charleston County Council as provided in the specified statutes); to acquire books and other library materials; to accept donations; to enter into contracts and agreements; and to receive and expend funds of various types, among other things. In section 4 of the ordinance, powers and duties are continued: to provide books and library materials to the residents of Charleston County by various means including a headquarters library, branch libraries, and bookmobiles; to adopt regulations; and to submit a budget to Charleston County Council to fund the operations of the Library System, among other things. An analysis of these powers and duties leads to the conclusion that a member of the Charleston County Library Board of Trustees would exercise a portion of the sovereign power of the State. The only criteria which are often found in an office but are lacking in the ordinance of Charleston County Council are the requirement that an oath be taken (but see Article VI, Section 5 of the South Carolina Constitution) and the issue of compensation being paid. Absence of these criteria is not critical to the determination that a particular position would be an office, however. Based on the foregoing, I am of the opinion that membership on the Charleston County Library Board of Trustees would constitute an office for dual office holding purposes. I can discern no reason to reach a conclusion different from the conclusions reached as to the library boards as listed in the informal opinion of October 23, 1995. To reiterate the conclusion of the earlier opinion, I am still of the opinion that service on the State Board of Education and on the Charleston County Library Board of Trustees simultaneously would constitute dual office holding, in contravention of the South Carolina Constitution. This letter is an informal opinion only. It has been written by a desigilated Senior Assistant 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. I trust that

Ms. Carol N. Ward
Page 3
November 28, 1995
the foregoing has satisfactorily responded to your inquiry and that you will advise if clarification or additional assistance should be necessary. With kindest regards, I am Sincerely,

VJ~.{)f~
Patricia D. Petway
Senior Assistant Attorney General