Could a Jasper County resident serve on both an election board and another county board?

Plain-English summary

In 2006, Jasper County asked about three combinations of local service. The Attorney General concluded that a county transportation committee member could not also sit on the Jasper County Board of Elections and Registration because both positions counted as offices under South Carolina’s dual-office restriction. He reached the same conclusion for simultaneous election-board and zoning-appeals-board service.

The AG gave a different answer for a local contractor serving on a planning commission: working as a contractor was not an office, so the dual-office ban did not apply. He warned that particular matters could raise ethics conflicts under section 8-13-700 and pointed to the State Ethics Commission as the body authorized to interpret that law.

Currency note

This opinion was issued in 2006. 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: Could one person serve on the county transportation and election boards? A: The AG said no. He treated both memberships as public offices, making simultaneous service a dual-office violation.

Q: Could an election-board member sit on a zoning appeals board? A: The AG said no for the same reason: each position counted as an office.

Q: Was a contractor disqualified from planning commission service? A: The AG said the dual-office rule did not disqualify a contractor because the occupation was not an office. He left particular ethics conflicts to the State Ethics Commission.

Background and statutory framework

South Carolina’s constitutional dual-office rule applied when one person held two positions exercising public office authority. The AG classified the requested board memberships using prior opinions. He distinguished employment as a contractor from public office and discussed possible financial-interest conflicts without deciding a specific ethics case.

Citations and references

Ethics statute: section 8-13-700.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-8-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06nov8-Frank.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY GENERAL

November 8, 2006

Judith M Frank, Clerk
Jasper County Council
Post Office Box 1149
Ridgeland, South Carolina 29936

I
I

Dear Ms. Frank:
We received your letter requesting an opinion of this Office on behalf of the Vice Chairman of the Jasper County Council regarding dual office holding. In your request, you asked us the following three questions: can a person serve on the transportation committee and the election committee; can a person serve on the election committee and zoning appeals board; can a local contractor serve on the planning commission? Law/Analysis

L.

Article XVII, section lA of the South Carolina Constitution (Supp. 2005) prohibits a person from holding "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." In order to contravene this provision, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 174, S.E. 762, 763 (1907). Furthermore, our courts recognize other relevant considerations in determining whether an individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position's duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475. 477, 266 S.E.2d 61, 62 ( 1980). First, with regard to an individual serving both on the transportation committee and the election committee, we note several opinions of this Office addressing whether a position on a county transportation committee is an office for purposes of dual office holding. In these opinions, we concluded such positions are offices. Ops. S.C. Atty. Gen., April 20, 2006 (Chesterfield County Transportation Committee); February 14, 2005 (Dorchester County Transpo1tation Committee); December 18, 1996 (York County Transportation Committee). Furthe1more, in speaking with you,

~D~~

-

OfHCE Box j 1549

• COWMBIA, SC 29211-1549 •

T EUPHONE 803-734-3970

•

FACS<MJLE 803-253-6283

Ms. Frank
Page 2
November 8, 2006

I
I

f1Jl

!I

we learned the election committee to which you refer is the Jasper County Board of Elections and Registration. In past opinions, we addressed whether positions on county election commissions and boards of voter registration are considered offices. In those opinions, we found such positions are offices. Ops. S.C. Atty. Gen., May 18, 2006 (Beaufort County Board of Elections); April 21, 2006 (Bamberg County Registration and Election Commission); July9, 2004(Charleston County Election Commission); December 17, 2002 (Union Board of Election and Registration). Because these two positions are considered offices for purposes of dual office holding, an individual serving in both positions would be in violation of the dual office holding prohibition contained in the South Carolina Constitution. Next, we address whether one individual may simultaneously serve on the Jasper County Board of Elections and Registration and on a zoning appeals board. Because we already determined a position on the Jasper County Board of Elections and Registration is an office, we must only determine whether a position on a zoning appeals board is also an office to determine whether service in both positions constitutes dual office holding. In prior opinions, this Office addressed the issue oflocal zoning appeals boards and dual office holding. In an opinion issued in August of this year, we determined a member of the City of Conway's Zoning Board of Appeals holds an office. Op. S.C. Atty. Gen. August 2, 2006. We came to the same conclusion in numerous other opinions as well. Ops. S.C. Atty. Gen., June 8, 2000 (Berkeley County Zoning Appeals Board); March 16, 1999 (City of North Myrtle Beach Board of Zoning Appeals); February 20, 1985 (City of Greenville Board of Zoning Appeals). Thus, we find serving both as a member of the Jasper County Board of Elections and Registration and on a local zoning appeals board would violate article XVII, section IA of the South Carolina Constitution. Lastly you inquire as to whether a local contractor may serve on a local planning commission. Because an individual's occupation as a contractor is not an office, his or her service on a local planning commission would not violate the prohibition on dual office holding. However, issues may, on occasion, arise under the State Ethics Refonn Act due to this the nature of the individual's occupation and his or her service on a planning commission. For instance, section 8-13-700 of the South Carolina Code (Supp. 2005) prohibits a public official from using his or her position for financial gain. Nonetheless, this provision provides for a method by which a public official may recuse himself or herself from matters in which the public official may have an economic interest. Therefore, section 8-13-700 does not necessarily prohibit the contractor's service on the planning commission. However, we note that the State Ethics Reform Act specifically affords authority to the South Carolina State Ethics Commission to interpret and issue opinions pertaining to this act. Thus, we suggest you contract the State Ethics Commission to address potential conflicts of interest that may arise under section 8-13-700 or any other provision of the State Ethics Reform Act. S.C. Code Ann. § 8-13-320( 11) (Supp. 2005).

Ms. Frank
Page 3
November 8, 2006

Conclusion
Based on our analysis above, we believe service as both a member of a county transportation committee and on the Jasper County Board of Elections and Registration constitutes dual office holding. Furthermore, we also believe service on the Jasper County Board of Elections and Registration while serving on a local zoning appeals board also constitutes dual office holding. Thus, simultaneous service in these positions violates article XVII, section 1A. However, we do not find the dual office holding prohibition prevents a local contractor from serving on a local planning commission. Nonetheless, we caution that such service may give rise to potential conflicts of interest under the State Ethics Reform Act, which are best addressed by the State Ethics Commission. Very truly yours,

~ff},~·
Cydney M. Milling
Assistant Attorney General
REVIEWED AND APPROVED BY:

I

b.:

~£).~

Robert D. Cook'
Assistant Deputy Attorney General