Could one person serve on South Carolina's Board of Law Examiners and a city housing authority board?

Plain-English summary

In 2003, South Carolina's Attorney General concluded that one person could not simultaneously serve on the State Board of Law Examiners and the City of Florence Housing Authority Board. The office treated both board seats as public offices exercising governmental authority, so the constitutional dual-office restriction applied.

The AG also described the consequence of accepting a second office: the first office became vacant by operation of law. The person could continue acting in the former position as a de facto officer until a successor was selected, and the opinion said such public-facing acts generally remained valid unless a court declared otherwise.

Currency note

This opinion was issued in 2003. 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.

Historical summary

Law examiners and housing board members

The AG found the housing board seat to be an office based on earlier opinions. It found the law examiners seat to be an office because statute created the board and its members set admission rules and judge applicants' legal knowledge.

Appointing officials and the public

According to the opinion, assuming a second covered office automatically vacated the first. A former holder could still function as a de facto officer pending selection of a successor; the opinion described the status and general validity of those acts, subject to court action.

Common questions

Could a Florence housing board member also sit on the law examiners board?
The AG said no, because each board position was a public office for the state dual-office rule.

What happened when the person accepted the second office?
The opinion said the first office was automatically vacated by law.

Were actions taken afterward in the former office automatically invalid?
The AG said a de facto officer's acts toward the public or third parties generally remained effective unless or until a court declared them void or removed the person.

Background and statutory framework

The request asked whether a member of the Board of Law Examiners could also serve the Florence Housing Authority. The opinion cited Section 40-5-210 for the law examiners board's statutory creation and its admission-related powers as evidence of state sovereign authority. It treated the housing board as an office based on prior AG opinions, then applied the constitutional dual-office rule and the doctrine governing a de facto officer.

Citations and references

The opinion discussed Article XVII, Section IA of the state constitution, Section 40-5-210, and South Carolina Appellate Court Rule 402.

Official title

Concerning dual office holding (member of the State Board of Law Examiners and serve simultaneously as a member of the City of Florence Housing Authority Board).

Requester

Frederick A. Hoefer, II, Esquire, Harwell, Ballenger, Barth, and Hoefer, L.L.P.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-8-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03oct-8-Hoefer.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATTORNEY GENERAL

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October 8, 2003

Frederick A. Hoefer, II, Esquire
Harwell, Ballenger, Barth, and Hoefer, L.L.P.
205 North Irby Street
Post Office Box 107
Florence, South Carolina 29503
Dear Mr. Hoefer:
You have requested an advisory opinion from this Office concerning dual office holding. You have inquired whether a member the State Board of Law Examiners may serve simultaneously as a member of the City of Florence Housing Authority Board without violating the constitutional prohibition on dual office holding. You have referenced the relevant statute, Section 40-5-210 of the South Carolina Code of Laws, and appellate court rule, South Carolina Appellate Court Rule 402, regarding the State Board of Law Examiners. LawI Analysis

Article XVII, Section IA of the State 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 notary public. 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). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its 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 consistently opined that a board member of a local housing· authority holds an office for dual office holding. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen. dated August 12, 2003 (City of Florence Housing Authority)( copy enclosed); March 16, 1990 (Darlington Housing Authority); March 10, 1988 (Columbia Housing Authority); June 1, 1987 (commissioner of a regional housing authority); November 18, 1986 (North Charleston Housing Authority). Accordingly, we advise that a commissioner or member of the board of directors for the City of Florence Housing Authority would undoubtedly be considered as an office holder for dual office holding purposes.

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jQ:MB.flU,(if. {;>FJl>llS BUil.DING • POST OFFICE Box I I 549 • COLUMBIA, S.C. 292 I I -1549 •

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TELEPHONE: 803-734-3970

• FACSIMILE: 803-253-6283

Mr. Hoefer
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October 8, 2003

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The question therefore is whether a position on the State Board of Law Examiners would likewise be considered an office for dual office holding purposes. While this Office has not previously had occasion to address this question, we believe that a member of the State Board of Law Examiners would hold an office for the following reasons. First, as you have noted in your request, the South Carolina Board of Law Examiners has been specifically created by statute. S.C. Code Ann. Section 40-5-210. Even though the South Carolina Supreme Court appoints the members of the Board of Law Examiners and proscribes their duties, the Board ultimately exists pursuant to statutory authority. State v. Crenshaw. Second, the Board of Law Examiners is empowered to establish rules and regulations regarding the admission of prospective applicants to the practice of law in South Carolina. S.C.A.C.R. Rule 402(a)(2). The Board also has the power to "determine whether the applicants for admission to the practice oflaw in South Carolina possess the necessary legal knowledge for admission." We believe that these quasi-legislative and quasi-judicial powers of the Board clearly invoke an exercise of some portion of the sovereign power of the State. Sanders v. Belue. Lastly, this Office has on numerous occasions opined as to other state professional and occupational licensing boards in the context of dual office holding. We have consistently advised that the members of the various boards of examiners are office holders for dual office holding purposes. See, as representative of those numerous opinions, Ops. S.C. Atty. Gen. dated April 12, 1993 (Board of Examiners in Opticianry, Board of Examiners in Optometry, and Board of Physical Therapy Examiners); March 8, 1979 (Board of Pharmaceutical Examiners); and December 22, 1975 (Board of Dental Examiners). Furthermore, in Richardson v. McFadden, 563 F .2d 1130 (4th Cir. 1977), Judge Hall, in his concurring opinion, stated that "[b ]y administering the bar examination and judging the intellectual fitness of applicants to practice law, the Law Examiners perform a judicial function on behalf of the South Carolina Supreme Court." 563 F.2d at 1132. This analysis strongly supports our conclusion that the members of the Law Examiners are exercising sovereign powers. Accordingly, we must conclude that a member of the State Board of Law Examiners holds an office for dual office holding purposes. Based on the forgoing authorities, it is our opinion that a person who simultaneously holds the positions of board member for the City of Florence Housing Authority and member of the State Board of Law Examiners would violate the constitutional prohibition on dual office holding. The only question that remains is, what would be the practical effect under state law if the individual in question were to accept an appointment to one of these boards while currently serving on the other? 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 lA 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

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Mr. Hoefer
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October 8, 2003

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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 ifthe term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dovev. Kirkland, 92 S.C. 313 (1912); Statev. Coleman, 54 S.C. 282 (1898); Statev. 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. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stob. 92 (S.C. 1848).

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Robert D. Cook
Assistant Deputy Attorney General
RDC/an

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