Could one person serve on Lander University’s board and the Lexington County School District 2 board?

Plain-English summary

A Lander University trustee asked whether he could also serve on the Lexington County School District 2 board. The 2000 opinion said the two trustee seats were public offices that could not be held at the same time under South Carolina's constitutional dual-office rule. The AG relied on earlier opinions classifying university trustees and school district trustees as officers.

The letter distinguished candidacy from taking office: merely running for the second seat did not trigger the problem. Once a person assumed the second office and began its duties, the law automatically vacated the first. The writer said the person could nonetheless act as a de facto officer until a successor was selected, and discussed the effect of such acts on the public and third parties.

Currency note

This opinion was issued in 2000. 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 the same person serve on both trustee boards?
A: The AG said no. It regarded both roles as public offices for the constitutional restriction.

Q: Did running for the school board itself end the Lander seat?
A: No. The letter said the dual-office problem arose only when the individual was elected to and began exercising the second office.

Q: What happened to the first seat after the second office began?
A: According to the opinion, the first office was automatically vacated, although the former holder could continue as a de facto officer until a successor was selected.

Q: Were de facto acts automatically invalid?
A: The letter said actions involving the public or third parties remained effective unless and until a court declared otherwise or removed the person.

Background and statutory framework

The opinion applied the constitutional requirement of two public offices exercising sovereign power. Its classifications came from earlier AG opinions; its discussion of vacancy and de facto service described consequences once a second incompatible office was assumed.

Citations and references

• Sanders v. Belue
• Walker v. Harris

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-18-2000-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00oct18holloway.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
AlTORNEY GEN ERAL

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October 18, 2000

Mr. Maurice Holloway
4139 Platt Springs Road
West Columbia, SC 29170
Dear Mr. Holloway:

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By your letter of October 17, 2000 you have asked whether a dual office holding situation would exist if you were to serve simultaneously as a member of the Lander University Board of Trustees and as a member of the Lexington County School District 2 Board of Trustees. For the reasons set forth below, it is my opinion that concurrent service in these positions would violate the South Carolina Constitution's prohibition against dual office holding.
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Article XVII, Section lA 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, a member of a lawfully and regularly organized fire department, constable, or a notary public. As concluded by Attorney General Daniel McLeod in an opinion dated April 26, 1977, "[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula." The South Carolina Supreme Court, though, has held that 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). "One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing and not occasional or intermittent, is a public officer." Id., 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes, or other 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.2d61 (1980).

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POST OFFICE Bo.x 115-19

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FACS IMILE : 80>-253-6283

Mr. Maurice Holloway
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October 18, 2000

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This Office has previously concluded that members of the Lander University Board of Trustees are officers. See, Op. A!!y. Gen. dated January 18, 1990. Therefore, having determined that Lander University Trustees are office holders within the meaning of Art. XVII, Sec. IA, it is necessary, then, to address whether membership on the Lexington County School District 2 Board of Trustees would likewise constitute an office. Once again, reference to this Office's earlier opinions are instructive. We have advised on numerous occasions that school district trustees would be considered office holders for dual office holding purposes. See, e.g., Ops. A!!y. Gen. dated September 20, 1999; September 7, 1993; and November 1, 1991. Therefore, based on the reasoning and conclusions of these earlier rulings, it is my opinion that a member of the Lander University Board of Trustees could not simultaneously serve on Lexington County School District 2 Board of Trustees without violating the dual office holding prohibitions of the State Constitution. As I mentioned during our recent conversation, a dual office holding problem does not occur until the individual is actually elected to the second office and begins to exercise the powers and duties of that office. "Merely offering as a candidate for election ... would not cause a dual office holding problem." See, Op . .Afty. Gen. August 14, 1996. Moreover, 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, 1 rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the 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

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A de jure officer is "one who is in all respects legally appointed and qualified to exercise the office." 63 Am.Jur.2d Public Officers and Employees §495. A de facto officer is "one who is in possession of an office, in good faith, entered by right, claiming to be entitled thereto, and discharging its duties under color of authority." Heyward v. Long, 178 S.C. 351, 183 S.E. 145, 151 (1936); see also Smith v. City Council of Charleston, 198 S.C. 313, 17 S.E.2d 860 (1942) and Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952).

Mr. Maurice Holloway
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October 18, 2000
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 Strob. 92 (S.C. 1848).

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I trust this information is responsive to your inquiry and that you will not hesitate to contact me if I can be of additional assistance. Sincerely yours,

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Zeb C. Williams, III
Deputy Attorney General

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