Could one person serve on the Cherokee County Development Board and Gaffney’s planning commission in 1995?

Official title

Concerning whether a dual office holding situation exists if a member of the Cherokee County Development Board simultaneously serves on the City of Gaffney Planning and Zoning Commission.

Requester

H. Fulton Ross, Jr., Gaffney City Attorney

Plain-English summary

A 1995 South Carolina Attorney General letter considered whether one person could serve on the Cherokee County Development Board and Gaffney's Planning and Zoning Commission. The state constitution prohibited holding two public offices at once, subject to listed exceptions. The letter explained that an office involves some exercise of state sovereign power and that its legal creation, duties, tenure, pay, qualifications, and oath can matter.

The office had previously classified service on the Cherokee County board as holding an office, but warned that a later county ordinance could require reexamining that conclusion. It did not know how Gaffney's commission had been established and asked for its ordinance or other governing document. Similar planning commissions elsewhere had been treated as offices. The author therefore said dual office holding was quite possible, leaving the specific answer open pending those documents.

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: Did the letter decide that serving on both bodies was prohibited? A: No. It called dual office holding quite possible, but needed the Gaffney commission's governing document and confirmation of the county board's legal basis before giving a definitive answer.

Q: Why did the county board's governing law matter? A: A prior AG opinion treated its members as officeholders based on a 1957 act. The letter said a later Cherokee County ordinance might require that earlier conclusion to be reconsidered.

Q: Did other cities' planning commissions settle Gaffney's status? A: No. The letter cited opinions involving Anderson and Florence as comparisons and said Gaffney service would probably be an office if its commission was set up similarly. It still sought Gaffney's own establishing document.

Background and statutory framework

The inquiry concerned South Carolina's constitutional ban on simultaneous public offices. The letter applied the officeholder test from cited cases and prior AG opinions, while expressly reserving the application to Gaffney's particular commission until its legal structure was supplied.

Citations and references

• South Carolina Constitution, Article XVII, Section IA
• Sanders v. Belue; State v Crenshaw

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-16-1995-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995oct16ross1.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CoNDON
AITORNEY GENERAL

October 16, 1995

H. Fulton Ross, Jr., Esquire
Gaffney City Attorney
Post Office Box 308
Gaffney, South Carolina 29342
RE: Informal Opinion
Dear Mr. Ross:
By your letter of October 2, 1995, on behalf of the Gaffney City Council, to Attorney General Condon, you have sought an opinion as to whether a person could simultaneously be a member of the Cherokee County Development Board and the City of Gaffney Planning and Zoning Commission without violating the prohibition against dual office holding of the State Constitution. 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 public. 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). This Office has advised previously that an individual who would serve on the Cherokee County Development Board would be considered an office holder for dual office holding purposes. Enclosed is a copy of Op. Att'y Gen. dated September 30, 1983, so concluding. Because the opinion is based on a 1957 act of the General RI !HERT

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H. Fulton Ross, Jr., Esquire
Page 2
October 16, 1995
Assembly, I would point out footnote 1 of the opinion; if Cherokee County Council has adopted an ordinance since the 1957 act of the General Assembly was adopted, it may be necessary to re-examine the conclusion of the 1983 opinion. You may wish to inquire of Cherokee County Council as to what legislative act the Development Board is presently following. I am not aware of how the City of Gaffney Planning and Zoning Commission has been established. If you will please advise me and forward a copy of the appropriate ordinance (assuming one has been adopted), I will be happy to look into the dual office holding question. To be of as much assistance in the interim, I am enclosing copies of Ops. Att'y Gen. dated April 24, 1979 (City of Anderson Planning and Zoning Commission is an office for dual office holding purposes); and April 5, 1990 and August 24, 1992 (both as to service on the City of Florence Planning Commission constituting an office, each one pointing out different aspects of consideration). If the City of Gaffney's Planning and Zoning Commission should be set up like either of these bodies, I am of the opinion that such service would most probably constitute an office for dual office holding purposes. In conclusion, it is quite possible that the situation described above would constitute dual office holding. If the enclosed opinions do not resolve the matter, please advise and send me copies of the relevant documents and I will be happy to consider the matter further.

I

This letter is an informal opinion only. It has been written by a designated 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. With kindest regards, I am Sincerely,

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Patricia D. Petway
Senior Assistant Attorney General
Enclosures