Could a South Carolina legislator also work as president or administrator of a college?

Plain-English summary

In 2019, South Carolina's Attorney General said a legislator's work as a college or university president or other administrator generally would not violate the state dual-office prohibition. The AG treated a typical college presidency as employment rather than an office exercising sovereign power. It relied on prior opinions about technical-college and university positions.

The requester did not identify a particular institution or job, so the AG declined a specific ruling. It said a private-college role was especially unlikely to be a public office. The opinion also cautioned that an employer's political-activity policy, ethics restrictions, or federal law could still affect a legislator's employment even if the dual-office rule did not.

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: Was a college presidency automatically a second public office? A: The AG said prior opinions generally treated college presidents as employees rather than public officers, but it lacked facts about a particular position.

Q: Did the opinion approve any specific legislator taking a named college job? A: No. It did not have an identified institution or position and declined specific guidance.

Q: Was a private-college role treated differently?
A: The AG said such a role was especially unlikely to have been created by state law or exercise state sovereign power.

Q: Did the dual-office answer settle every employment restriction? A: No. The opinion identified employer policy, ethics law, and possible federal law as separate considerations.

Background and statutory framework

A representative asked whether a legislator could serve in an administrative role at a public or private institution of higher learning. The AG quoted constitutional restrictions on legislators holding another state office and the court's definition of a public office. It compared prior opinions finding college presidents and employees lacked the statutory duties and independent sovereign authority typical of public officers.

Citations and references

• S.C. Const. art. III, § 24: restriction on legislators holding another state office, quoted in the opinion.
• S.C. Const. art. XVII, § 1A: general dual-office restriction quoted in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-8-2019-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/10/GovanJ-OS-10412-FINAL-Opinion-10-8-2019-02112365xD2C78-02114919xD2C78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

October 8, 2019

The Honorable Jerry N. Govan, Jr.
Member

South Carolina House of Representatives
Post Office Box 77

Orangeburg, South Carolina 29116

Dear Representative Govan:

We received your letter addressed to Attorney General Alan Wilson requesting an opinion of this Office concerning dual office holding. Specifically, you ask whether a member of the General Assembly would be prohibited from “serving in an administrative capacity with a state agency such as president to a public or private two or four year institution of higher learning?”

Law/Analysis

As our Supreme Court explained in South Carolina Public Interest Foundation v. South Carolina Transportation Infrastructure Bank, 403 S.C. 640, 646, 744 S.E.2d 521, 524 (2013):

The South Carolina Constitution prohibits members of the General Assembly from holding another office during their service in the legislature, both expressly and by virtue of the repeated general prohibitions against dual office holding. See S.C. Const. art. III, § 24 (“No person is eligible to a seat in the General Assembly while he holds any office or position of profit or trust under this State....”); S.C. Const. art. VI, § 3 (“No person may hold two offices of honor or profit at the same time.”); S.C. Const. art. XVII, § 1A (“No person may hold two offices of honor or profit at the same time... .”).

Thus, we must determine whether serving as the president of a public or private college or university is an office for purposes of dual office holding.

In Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 124, 691 S.E.2d 453,

461 (2010) our Supreme Court provided us with the following guidance in determining what

• positions constitute offices for purposes of the constitutional prohibition on dual office holding,

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The Honorable Jerry N. Govan, Jr.
Page 2
October 8, 2019

“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 state, the authority is derived from the law, and the duties are exercised for the benefit of the 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. The duties must be performed independently and without control of a superior officer, other than the law, unless they are those of an inferior or subordinate officer, created or authorized by the legislature and by it placed under the general control of a superior officer of body.” 63C Am Jur.2d Public Officers and Employees § 5 (2009).

In an opinion issued in 1992, this Office considered whether serving as the President of Horry- Georgetown Technical College is an office for purposes of dual office holding. Op. Att’y Gen., 1992 WL 682817 (S.C.A.G Jun. 12, 1992). We considered the fact that the President’s position was created by the college’s board of trustees in accordance with its enabling legislation rather than by statute. Id. We also consider the fact that the position had no statutory qualifications, no oath requirement, no statutory duties, and no term of service. Id. As such, we concluded: “It is apparent that the individual employed as President of the College does not meet the criteria usually possessed by an office holder. Thus, it is our opinion that such would be a position of public employment rather than a public office.” Id.

We have similarly determined that other college presidents, vice presidents, and employees of colleges and universities were not office holders for purpose of dual office holding. See Op. Att’y Gen., 1975 WL 22500 (S.C.A.G. Nov. 26, 1975) (finding the President of South Carolina State College was not an officer holder); Op. Att’y Gen., 2006 WL 2382453 (S.C.A.G. July 19, 2006) (concluding a vice president for a technical college is not an officer); Op. Att’y Gen., 1980 WL 121115 (S.C.A.G. Mar. 21, 1980) (opining a director of a physical plant at a technical college is an employee not an officer).

In your letter, you did not specify a college or university or the position, so we are unable to provide you with specific guidance. However, based on our prior opinions, we believe serving as a president or employee of a college or university would not be considered an office for purposes of the prohibition on dual office holding as these positions general serve at the pleasure of a board and do not have any statutorily created duties or authority. This would be especially true for a position at a private college or university as it would be unlikely that such a position would be created by statute and involve the exercise of some part of the sovereign power of the state.

The Honorable Jerry N. Govan, Jr.
Page 3
October 8, 2019

Although we do not believe a member of the General Assembly serving in an administrative capacity at a public or private college generally is prohibited as dual office holding, we offer the same guidance as we did in our 2006 opinion.

First, although no statute prohibits a state employee for serving in the House of Representatives, we advised the requester consult with his employer to determine if it had a policy prohibiting employees from engaging in political activity. Second, we noted if the requester’s position is partly funded by the federal government, he should be aware of the implications of the federal Hatch Act. Third, we noted certain ethics laws prohibit the use an individual’s public employment for personal gain.

Op. Att'y Gen., 2006 WL 2382453 (S.C.A.G. July 19, 2006).

Conclusion
While we do not have enough information to provide you with specific guidance as to whether a member of the General Assembly may serve in an administrative capacity at a public or private college or university, based on our prior opinions, we do not believe such service in both

capacities would be prohibited under dual office holding. However, we caution that such service may have other implications due to employment policies, ethics considerations, and federal law.

Sincerely,

Cydney’Millin:
Assistant Attorney General

REVIEWED AND APPROVED BY:

Wha LEV

Keri D. Cook
Solicitor General