Could someone serve on both Georgetown County’s parks commission and the Waccamaw Equal Opportunity Council?

Plain-English summary

The South Carolina Attorney General concluded that one person could serve on Georgetown County’s Parks and Recreation Commission and the Waccamaw Equal Opportunity Council at the same time. The county ordinance described the parks commission as “an advisory body only,” and its listed duties did not give members sovereign power. Because that position was not an office for the constitutional dual-office rule, the opinion reached the same result regardless of whether the Waccamaw position counted as an office.

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: Does a county advisory board count as a public office for dual-office holding? A: The AG said this Georgetown County parks commission did not. Its ordinance made it advisory only, and its assigned duties did not exercise sovereign power.

Q: Could a parks commissioner also serve on the Waccamaw Equal Opportunity Council? A: Yes, under the opinion. Because the parks commission seat was not an office, concurrent service did not create two offices under the constitutional prohibition.

Q: Did the AG decide whether the Waccamaw council position was a public office? A: No. The opinion said that classification was unnecessary to resolve the simultaneous-service question.

Background and statutory framework

The constitutional rule addressed a person holding two offices of honor or profit simultaneously. The opinion explained that an office involves exercising some of the state’s sovereign power; statutory creation, fixed duties, compensation, qualifications and an oath were other indicators. Georgetown County had created the parks commission by ordinance and set terms and duties, but the AG found no oath or compensation requirement and no sovereign power in its advisory functions. The opinion expressly declined to classify membership on the Waccamaw Equal Opportunity Council.

Citations and references

• article XVII, section l A ofthe South Carolina Constitution
• section 13.9-56
• section 13.9-55

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-16-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06oct16-Mills.pdf

Original opinion text

HENRY MCMASTER
AITORNl!Y GENERAL

October 16, 2006

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David J. Mills, Esquire
County Attorney, Georgetown County
Post Office Box 421270
Georgetown, South Carolina 299440
Dear Mr. Mills:
We received your letter requesting an opinion of this Office on behalf Georgetown County. Your request concerns whether or not an individual may simultaneously serve on the Georgetown County Parks and Recreation Commission ("PRC") and the Waccamaw Equal Opportunity Council ("WEOC") without violating the dual office holding prohibition contained in article XVII, section IA ofthe South Carolina Constitution. As explained below, we believe a position on the PRC is not an office for purposes of dual office holding. Thus, an individual's service in both positions would not violate the constitutional prohibition on dual office holding.

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Law/Analysis
Article XVTI, section l A ofthe South Carolina Constitution (Supp. 2005) prohibits a person from holding "two offices of honor or profit at the same time, but any person holding an.other 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). Furthennore, our courts recognize other relevant considerations in determining whether an i ndi vidual 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). Attached to your request letter, you provided us with a copy of the Georgetown County Ordinance creating the PRC. This ordinance provides the PRC shall consist of seven members appointed by the Georgetown County Council to serve four-year terms. Georgetown County, S.C., Ordinances§ 13.9.54. Section 13.9-56 of the Georgetown County Ordinances explains the duties and responsibilities assigned to the PRC.

Mr. Mills
Page 2
October 16, 2006

The parks and recreation commission shall be an advisory body only and shall have the following duties and responsibilities: ( 1) Elect board officers as determined by the board. (2) Regularly review all department procedures and policies recommending appropriate changes to the director.

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(3) Regularly evaluate programs and events for the purposes
of improvement.
(4) Serve as a liaison between citizens and the department
director and county council.
(5) Assist in reviewing the budget, developing long range
plans, and providing input on facilities, capital, programs and operations. (6) Assist in developing a broad base of financial support by seeking grants, gifts, and sponsorships. (7) Maintain public relations with the community, promote the parks and recreation department and develop participation among citizens and visitors. (8) Meet monthly, publish and agenda and notify the public and news media of meetings.

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(9) County council may from time to time expand, modify, or
release the responsibilities of the board.
Id.§ 13.9-56. Furthermore, section 13.9-55 provides: "The parks and recreation commission, on behalf of the county, may accept funds for recreational and park purposes through donations, grants, or though other sources as it deems fit and proper. All are to be accepted in the name of Georgetown County Council." Id. § 13.9-55. We acknowledge some of the indicators of an office are present. The Georgetown County Council created the PRC through legislative action. Via an ordinance, the Georgetown County Council proscribed a term and duties for the position. However, we note there does not appear to be an oath requirement or any provision for the compensation of its members. In addition, in our review of the duties proscribed to the PRC, we do not find such duties indicate the PRC's ability to exercise sovereign power of the State. Moreover, the provision explaining such duties states the

Mr. Mills
Page 3
October 16, 2006

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PRC "shall be an advisory body only." Prior opinions of this Office concluded members of advisory bodies are not officers for dual office holding purposes because they are not deemed to exercise a portion of the sovereign power of the State. Ops. S.C. Atty. Gen., June 1, 2006 (Education and Economic Development Act Regional Education Center Advisory Board); February 24, 2004 (Beaufort County Solid Waste and Recycling Board); January 15, 2003 (Town of Hilton Head Accommodations Tax Advisory Committee); February 27, 2001 (legal advisory board for the Department ofNatural Resources); December 1, 2000 (drought response committee); December 14, 1987 (Children's Foster Care Review Board). Accordingly, we do not find membership on the PRC constitutes an office for purposes of dual office holding. Because we find a position on the PRC not to be an office, regardless of whether a position on the WEOC is an office, an individual's service in both positions would not violate the dual office prohibition contained in article XVII, section 1A of the South Carolina Constitution. Thus, we need not address whether a position on the WEOC is an office. Very truly yours,

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Cydnet M. MiQing
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General