Could one person sit on South Carolina’s Commission on Higher Education and a local hospital board?

Plain-English summary

The South Carolina Attorney General concluded that one person could not simultaneously serve on the South Carolina Commission on Higher Education and the governing board of a local hospital. The opinion treated each board seat as a public office for the state constitution's dual-office prohibition. It said a court would likely reach that conclusion.

The office relied on earlier opinions treating county hospital governing-board membership as an office. It also noted that law set the higher-education commission members' appointment, qualifications, terms, payment, and duties; those members appeared to exercise state sovereign power.

Currency note

This opinion was issued in 2013. 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 someone hold both of these board seats in 2013?
A: The AG's answer was no. It predicted that a court would classify both as public offices under the constitutional dual-office rule.

Q: Why did the higher-education commission seat count as an office?
A: The opinion pointed to the statutory framework for appointment and duties and to the commission's exercise of state authority.

Q: Why did a hospital board seat count?
A: The office cited its earlier opinions treating the governing boards of county hospitals as public offices for dual-office purposes.

Background and statutory framework

A senator asked whether a person could serve on the state commission and a local hospital board. The opinion applied the constitutional public-office test, which focused on continuing duties involving sovereign power. It did not adjudicate an individual's actual appointment or decide every kind of hospital organization.

Citations and references

The opinion discusses the South Carolina constitutional dual-office rule and earlier AG opinions concerning county hospital boards.

Official title

On dual office holding (serves on the board of the SC Commission on High Education and serve on the board of a local hospital).

Requester

The Honorable Tom D. Corbin, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-28-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Corbin-T.-10-28-2013-01203755xD2C78.pdf

Original opinion text

Office of the Attorney General
State of South Carolina

October 28,2013
The Honorable Tom D. Corbin
Senator

District No.5

1139 Bailey Mill Road
Travelers Rest, SC 29690
Dear Senator Corbin:

This Office received your request for an opinion as to whether an individual can serve on the board ofthe South Carolina

Commission on Higher Education while also serving on the board of a local hospital. LAW/ANALYSIS:

The South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time. This limitation does not apply to officers in the militia, notaries public, members oflawfully and regularly organized fire departments, constables, or delegates to a constitutional convention." S.C. Const, art. IV § 3. 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 ofsome part ofthe 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 state, the authority is derived from the law,and the duties are exercised for the benefit ofthe public." Willis v. Aiken County, 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 legislature or through legislative authority..." 63C Am Jur.2d Public Officers and Employees § 5(2009). Segars-Andrews v. Judicial Merit Selection Commi.ssion. 387 S.C. 109, 691 S.E.2d 453 (2010). "Other relevant

considerations [as to whether a position is a public office] include:'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 ofthe sovereign; among others."' See Op. S.C. Attv. Gen.. June 17, 2013(2013 WL 3243063)(quoting State v. Crcnshaw. 274 S.C. 475,478,266 S.E.2d 61,62 (1980)).

A member of a hospital board is a public officer. In a prior opinion. Op. S.C. Attv. Gen.. April 4, 2012 (2012 WL 1260181), we stated that:

We have issued numerous opinions concluding that a position on the governing board of a county hospital is an office for purposes of dual office holding. See, e.g.. Ops. S.C. Att'v Gen.. 2007 WL 1651330(May 2, 2007)(Lexington Medical Center Board); 2007 WL 655610 (February 26, 2007) (Barnwell County Hospital Board); 2004 WL 885191 (April 20, 2004)(Abbeville County Memorial Hospital Board of Trustees).

The issue is whether an individual who is a member of the South Carolina Commission on Higher Education is a

public officer. The State Commission on Higher Education is provided for in the South Carolina Code (S.C. Code Ann. § 59-103-5 et seq. (1976 Code, as amended)). The statutes provide for the appointment of the members; their qualifications; their terms of office; their payment of per diem and mileage; and their duties. With the duties given, the members appear to be exercising the sovereign power of the State. Therefore, a member of the South Carolina Commission on Higher

Education is an officer for dual office holding purposes.

CONCLUSION

In conclusion, this Office believes that a Court would determine that the positions of hospital board member and member of the South Carolina Commission on Higher Education are offices and that it would constitute dual office holding under the South Carolina Constitution for an individual to serve as both.

Sincerely,
Elinor V. Lister

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D.Cook

Solicitor General