Could a Hartsville city council member also serve on the Darlington County Historical Commission?

Plain-English summary

In November 2003, South Carolina's Attorney General said a Hartsville City Council member could not also join the Darlington County Historical Commission without violating the constitutional dual-office prohibition. Council membership was a public office, and the AG concluded the commission probably was one too because its statute assigned governmental powers and did not expressly exempt commissioners from officeholding status.

The opinion explained that accepting the second covered office would automatically vacate the first. The former council member could nevertheless continue as a de facto officer until a successor was selected; the opinion described how such acts would be treated as to the public and third parties.

Currency note

This opinion was issued in 2003. 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

Council members and commissioners

The AG contrasted this commission with historical commissions whose enabling acts expressly said membership was not an office. Darlington's act had no such clause and assigned powers over property, staffing, and rules.

Common questions

Did the AG treat historical commission membership as a public office?
Yes, probably, for the Darlington commission and its statutory powers.

Could the council member keep the first office after accepting the commission seat?
The opinion said the law treated the first office as vacated automatically when the second covered office was accepted.

Would acts taken before a successor arrived necessarily be void?
No. The AG described continued de facto service and said acts affecting the public or third parties remained effective unless a court ruled otherwise.

Background and statutory framework

A Hartsville council member asked about joining Darlington's historical commission. The AG compared the enabling act and previous opinions about other historical commissions under the constitutional dual-office test.

Citations and references

The opinion discussed Article XVII, Section 1A of the South Carolina Constitution and the commission's enabling Act No. 570.

Official title

Asking whether simultaneously holding a position on the Darlington Historical Commission and being a member of the Hartsville City Counsel would violate the prohibition on dual office holding in the South Carolina Constitution.

Requester

The Honorable John L. Andrews, Member, Hartsville City Council

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-5-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/09/03nov-5-Andrews.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
ATTORNEY GENERAL

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November 5, 2003

The Honorable John L. Andrews
Member, Hartsville City Council
307 Kings Place
Hartsville, South Carolina 29550
Dear Mr. Andrews:
You have requested an opinion from this Office concerning dual office holding. Currently, you are a member of the Hartsville City Council. You have asked whether simultaneously holding a position on the Darlington County Historical Commission would violate the prohibition on dual office holding in the South Carolina Constitution. We conclude that it would.

Law I Analysis
Article XVII, Section 1A of the State 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 notary public. For this provision to be contravened, a person concurrently must hold two offices which have duties involving an exerciseofsomeportionofthe 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 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 on numerous occasions that a member of a city or town council would be considered an officer for dual office holding purposes. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen. dated July 19, 2001; April 12, 1998; June 12, 1995; February 4, 1994; July 23, 1993. Therefore, the question turns upon whether a member of the Darlington County Historical Commission would likewise be considered an office holder. This Office has had an opportunity in several prior opinions to advise on whether a member of a local historical commission holds an office for dual office holding. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen. dated April 16, 1985 (member of Georgetown County Historical Commission is not an office holder); January 17, 1985 (member of Marlboro County Historical Commission is not an office holder); November 7, 1975 (member of Camden Historical Commission is an office holder; and February 24, 1965 (member of York County

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The Honorable John L. Andrews
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November 5, 2003

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Historical Commission is an office holder). The conclusion in these opinions has turned on the question of whether the General Assembly expressly exempts a commission from being an office holder in the provisions of the enabling statute. Provisions in both the Georgetown County and Marlboro County Historical Commission enabling act state that "[m ]embership on the commission shall not be construed to be an office of honor or profit." We stated in the April 16, 1985 opinion that, "[w]hile there is some question as to the Legislature's authority to interpret as exempt, by statute, a position from the dual office holding prohibitions of the State Constitution, such an interpretation is nevertheless entitled to much weight." Acker v. Cooley, 177 S.C. 144, 181 S.E. 10 (1935). As to those Historical Commissions which did not have such an express exemption in their enabling act, we have advised that the duties of the commissioners included a requisite portion of an exercise of the state's sovereign power and, thus, such commissioners would be office holders. The Darlington County Historical Commission was created by Act No. 570, 1965 Acts and Joint Resolutions, a copy of which you have provided along with your request. Section I of the Act states that commissioners are to be "appointed by the Governor upon the recommendation of the county legislative delegation." Duties (or powers) are specified by Section 3 of the Act, and include various corporate powers and duties; acquisition ofland, buildings, and such structures; to employ a secretary and set the remuneration and duties of the secretary; prescribing rules and regulations; and other similar powers, all of which appear to involve an exercise of a portion of the sovereign power of the State. Members of the commission are to serve without compensation. No oath or qualifications for service are specified. Furthermore, there is no express provision in Act No. 570 which exempts the commissioners from being considered office holders. Based on the analysis of our prior opinions with respect to this matter, we, therefore, advise that a member of the Darlington County Historical Commission probably holds an office for dual office holding purposes. Based on the forgoing authorities, it is the opinion of this Office that a member of the Hartsville City Council and a member of the Darlington County Historical Commission would both hold an office for dual office holding purposes. Accordingly, we advise that your holding both positions simultaneously would contravene the constitutional prohibition on dual office holding if you were to accept the position on the Darlington County Historical Commission. 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 Article XVII, Section IA of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), 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. However, the individual 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 (or to assume his duties ifthe term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dove v. Kirkland, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. 156 (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

The Honorable John L. Andrews
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November 5, 2003

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 166 (1976); State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848)

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