Could a Fairfax town council member also sit on the Allendale County Development Board?

Plain-English summary

In November 2003, South Carolina's Attorney General said simultaneous service on Fairfax Town Council and the Allendale County Development Board did not violate the constitutional rule against holding two offices. Council membership counted as a public office. Earlier AG opinions had said membership on comparable county development boards did not.

The opinion made an important assumption: the office had not examined this board's specific enabling authority or duties. It considered the board probably similar to others whose main work was promoting economic development.

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 and development board members

The AG's conclusion depended on there being only one position that counted as an office. It did not make a direct, document-specific determination about the Allendale board's legal powers.

Common questions

Was the Fairfax council seat a public office?
Yes. The opinion said town council seats counted for the dual-office rule.

Did the AG review the Allendale board's enabling law?
No. It relied on prior treatment of similar development bodies and assumed this board worked much the same way.

What conclusion did the AG reach on holding both positions?
It found no constitutional dual-office violation on its stated understanding of the board.

Background and statutory framework

Allendale County's attorney asked about one person holding both positions. The AG applied the constitutional rule requiring two public offices and compared the development board with earlier opinions about similar county boards.

Citations and references

The opinion discussed Article XVII, Section IA of the South Carolina Constitution and earlier AG opinions on county development boards.

Official title

Asking whether a person may concurrently be a member of the Fairfax Town Council and the Allendale County Development Board without violating the dual office holding provisions of the South Carolina Constitution.

Requester

Walter H. Sanders, Jr., Esquire, Allendale County Attorney

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-7-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/09/03nov-7-Sanders.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMASTER
ATTDRNEY GENERAL

November 7, 2003

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Walter H. Sanders, Jr., Esquire
Allendale County Attorney
Post Office Box 840
Fairfax, South Carolina 29827
Dear Mr. Sanders:
You have requested an advisory opinion from this Office concerning dual office holding. You ask whether person may concurrently be a member of the Fairfax Town Council and the Allendale County Development Board without violating the dual office holding provisions of the South Carolina Constitution. Law/Analysis

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Article XVII, Section I A 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 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 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 to whether a position on the Allendale County Development Board would likewise be considered an office. This Office has the opportunity in prior opinions to opine as to whether positions on the Hampton County Economic Development Board, the Bamberg County Economic Development Commission, the Marlboro County Development Board, the Dillon County Development Board and the Florence County Development Board would constitute an office. See, Op. S.C. Atty. Gen., March 19, 2003 (Hampton); January 31, 1994 (Bamberg); June 12, 1997 (Marlboro); August 9, 1991 (Dillon); April 5, 1990 (Florence). In each of these opinions, we found membership on these entities did not constitute holding an office. While these entities possessed slightly varying names, the

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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fACS!Mll.E: 803-253-6283

Mr. Sanders
Page 2
November 7, 2003

principal function of each was the same - to promote and encourage economic development. Thus, while we have not examined the specific enabling authority or the powers and duties of the Allendale County Development Board, it is probable that the authority of this board is basically the same as other similar entities, referenced above. As indicated, our conclusion has been consistent that membership on these boards and commissions does not constitute an office for dual office holding.

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Based on the forgoing authorities, it is the opinion of this Office that a person who concurrently holds membership on the Fairfax Town Council and the Allendale County Development Board would not violate the constitutional prohibition on dual office holding.

Assistant Deputy Attorney General

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