Could one person serve on Orangeburg City Council and the Felton Laboratory Charter School board at the same time?

Plain-English summary

In 2019, South Carolina's Attorney General concluded that one person could not simultaneously serve on Orangeburg City Council and the Felton Laboratory Charter School Board. The opinion treated both positions as public offices for the state constitution's dual-office rule. It relied on prior AG opinions concerning school-board and municipal positions.

The AG also described the consequence recognized in earlier opinions: when someone already holding one covered office assumes a second, the first office is deemed vacated by law. The person could still perform the first office's duties as a de facto officer until a successor was selected. The opinion discussed the status of acts done in that interim, while making its direct conclusion about the two named posts.

Currency note

This opinion was issued in 2019. 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 hold the two named Orangeburg positions? A: The AG said no; it concluded that simultaneous service would violate the state constitution’s dual-office prohibition.

Q: Which position would the person lose upon taking the second? A: The opinion said the first office was deemed vacated by law when the second covered office was assumed.

Q: Could the person continue acting in the first position while a successor was chosen? A: The AG said earlier opinions treated the person as a de facto officer during that interval.

Q: Did the opinion say every school-related volunteer role was a public office? A: No. Its conclusion concerned membership on the Felton Laboratory Charter School Board together with Orangeburg City Council.

Background and statutory framework

A requester asked whether service on a city council and a charter-school board would constitute dual office holding. The AG quoted the constitutional prohibition and the legal test for an office involving continuing public duties and sovereign power. It applied prior opinions to the two posts and then explained the operation of a vacancy when a second covered office is assumed.

Citations and references

• S.C. Const, art. XVII § 1 A: dual-office provision quoted in the opinion.
• Earlier South Carolina AG opinions on the effect of assuming a second covered public office.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-21-2019-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/10/KaluK-OS-10414-FINAL-Opinion-10-21-2019-LISTER-02122069xD2C78-02126032xD2C78.pdf

Original opinion text

Alan Wilson
attorney General

October 21, 2019

Kalu A. Kalu
2869 Lakeside Drive NE

Orangeburg, SC 29118-1817
Kalu A. Kalu
2867 Lakeside Street

Orangeburg, SC 29118
Dear Dr. Kalu:

You have requested an opinion from this Office regarding whether it would be dual office holding for you to serve simultaneously on the Felton Laboratory Charter School Board and on Orangeburg City Council. LAW/ANALYSIS:

Dual office holding is provided for in the South Carolina Constitution, which states:
[n]o person may hold 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 ... The limitation above set

forth does not prohibit any officeholder from being a delegate to a constitutional convention.

S.C. Const, art. XVII § 1 A.

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is: "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." Sanders v. Belue. 78 S.C.

171, 174, 58 S.E. 762, 763 (1907), "In considering whether a particular position is an office in the constitutional sense, it must be demonstrated

that "[t]he power of appointment comes from the stale, the authority is derived from the law, and the duties are exercised for the benefit of the

public." Willis v. Aiken Countv. 203 S.C. 96, 103 26 S.E.2d 313, 316 (1943). "The powers conferred and the duties to be discharged with regard to a public office must be defined, directly or impliedly, by the

It£MBERTC.DE.NNlS BUILDING . POST OFFICE Box 11549 . COLUMBIA,SC 292 11-1549 . TELEPHONE 803-734-3970

pACsn^lLE 803-253-6283

Kalu A. Kalu
Page 2

October 21, 2019

legislature or through legislative authority
..."63C Am Jur.2d Public
Officers and Employees § 5 (2009).
Seears-Andrews v. Judicial Merit Selection Comm ission. 387 S.C. 109, 691 S.E.2d 453 (2010). Other relevant considerations for an office are: whether the

position was created by the legislature;
whether the
qualifications for appointment are established; whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others. Op, S.C. Attv. Gen.. 2013 WL 3243063 (June 17, 2013) (quoting State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980)).

Our Office has previously opined that a city

council member holds an office for dual office holding See Op. S.C. Attv. Gen.. 2018 WL 11600 89 (Feb. 21, 2018) (quoting On. S.C. Attv. Gen.. 2013 WL 5291571 (September 9, 2013)
) ("[t]his Office has advised on numerous occasi ons that a member of a town or city council holds an office for purposes of the constitutional prohibition against dual office holding.") purposes.

We have also determined that a member of a charte

r school board holds a public office:

In an opinion dated February 26, 2003, we addressed the issue of whether a position on a charter school's gover ning board is an officer for dual office holding purposes.

The position of board member is established by

statute, a
is set forth therefor, and the board memb ers exercise a portion of the sovereign power of the State. While taxing or bond authority is expressly denied, in terms of other authority, it is the board which serves as the "governing body" of the school. Board members decide all matters related to the operation of the charter school, including budgeting, curriculum and operating procedures. Obviously, the board expends public funds. Thus, the board possesses policy-making duties and functions consistent with the operation of the school including the decision to '"elect to comply with' those laws or regulations which are applicable to a public school, a school board, or a district, . . ." which are not otherwise specified as applicable. In essenc e, board members make policy decisions in keeping with the Legislature's desire that charter schools "take responsible risks and create new, innovative, and more flexibl e ways of educating children within the public schoo l system." term

Kalu A. Kalu
Page 3
October 21, 2019

Clearly, board members exercise
sovereign power of the State.

a

portion

of the

Op. S.C. Attv. Gen.. February 26, 2003 (citatio ns omitted). We recognized the fact section 59-40-40 states charter schools are nonprofit corporations and the fact that members of a nonprofit corporation's board traditionally are not public officers for dual office holding purposes. Id. However, in determining a charter school likely is the alter ego of the State, we concluded a position on a charter school's governing board is an office for dual office holding purposes. Id. Op. S.C. Attv. Gen.. 2006 WL 703694, at *3 (Mar. 9,

2006).

Based upon our prior opinions, we believe that it would

violate the dual office holding provision of the State Constitution for you to serve on both the Felton Laboratory Charter School Board and the Orangeburg City Council. In order to be as responsive as possible to your questio opinion how South Carolina law operates to resolve a

n, we note also that our Office addressed in a prior dual office holding situation:

When
a dual office holding
situation
occurs,
automatically to "cure" the problem. If an individual

the law operates
holds one office on

the date he assumes a second office, assuming both offices

fall within the
purview of Article XVII, Section 1A 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, 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 (1933k Dove v. Kirkland. 92 S.C. 3 1 3 (1 9 1 2k State v. Colema n. 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 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 McLeo d v. West. 249 S.C. 243, 153 S.E.2d 892 ( 1 9671: Kittman v. Aver. 3 Stob. 92 (S.C. 1848).

Op. S.C. Attv. Gen.. 2003 WL 22172235, at *2 (Sept.

12, 2003). Our Office also has opined that:

[n]o steps are necessary [to resolve a dual office holding situation] because the individual found to hold two offices automa tically vacates the first office held by that individual. However, we reiterate that the

Kalu A. Kalu
Page 4

October 21, 2019

individual will continue to serve in the first office in a dc facto capacity until a successor is appointed. Op. S.C. Attv. Gen.. 2007 WL 1 65 1 345, at *4 (May 9, 2007).

CONCLUSION;

Based upon our prior opinions, this Office believes that it would be a violation of the dual office holding prohibition of the South Carolina Constitution for an individual to serve simultaneously on the Felton Laboratory Charter School Board and on Orangeburg City Council.

When a violation of the prohibition

against dual office holding occurs, the individual is deemed by law to have vacated the first office held. However, they continue to serve in the first office in a de facto capacity until a successor is selected.

Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

^bert D. Cook
Solicitor General