Could one person serve on the Irmo-Chapin Recreation Commission and lead Lexington-Richland School District Five?

Plain-English summary

In April 2022, the South Carolina Attorney General concluded that a person could serve both on the Irmo-Chapin Recreation Commission and as superintendent of Lexington-Richland School District Five without violating the state's ban on dual-office holding. The opinion treated the recreation commission seat as a public office. It found the particular superintendent position was instead employment under a contract with the school board, so the person did not hold two offices.

The conclusion rested on the characteristics of District Five's superintendent position that the office reviewed: no statutory creation of that position, no identified oath or commission requirement, and service on terms set by the board's contract.

What this means for you

District Five leadership and recreation commissioners

The AG's conclusion allowed the two named roles to be held together on the facts presented. It did not erase the office status of the recreation commission seat; the decisive distinction was that the superintendent position was employment rather than a second office.

Other public employers and appointees

The opinion used features of the position, including legal creation, duties, qualifications, oath, and sovereign power, to distinguish a public office from employment. Its conclusion concerned the specific school district and commission in the request.

Common questions

Q: Was an Irmo-Chapin Recreation Commission seat a public office? A: The AG said it likely was, consistent with several earlier opinions about that commission.

Q: Did the District Five superintendent also hold a public office? A: The office said no. It characterized the role as employment governed by the school board's contract on the facts it reviewed.

Q: Could one person serve in both positions?
A: Yes. Because only one of the two positions was an office for this purpose, the AG found no violation of the dual-office prohibition.

Background and statutory framework

The superintendent asked whether holding the two roles would contravene the South Carolina Constitution's ban on simultaneously holding two offices of honor or profit. The AG applied the state courts' public-office criteria and its own earlier recreation-commission opinions, then reviewed the district's enabling law and the superintendent's contract-based status.

Citations and references

• State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980): public-office factors cited by the AG.
• South Carolina Constitution, article XVII, section 1A: dual-office prohibition quoted in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addresses-whether-someone-may-simultaneously-serve-as-both-a-member-of-the-irmo-chapin-recreation-commission-and-as-superintendent-for-the-lexingtonrichland-school-district-5-without-violating-the-constitutional-prohibition-on-dual-/
• Original PDF: https://www.scag.gov/media/lpklbxhy/02962807.pdf

Original opinion text

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Alan Wilson
ATTORNEY GENERAL

April 22, 2022
Dr. Akil E. Ross, Sr.

Superintendent

Lexington-Richland School District Five
1020 Dutch Fork Road
Irmo, South Carolina 29063
Dear Dr. Ross:

We received your letter requesting an opinion of this Office regarding dual office holding. Specifically, you inquire as to whether you may simultaneously serve as a commissioner for the Irmo-Chapin Recreation Commission and as superintendent of Lexington-Richland School District Five without violating the prohibition against dual office holding in section 1 A of article XVII of the South Carolina Constitution. Law/Analysis

Section 1 A of article XVII of the South Carolina Constitution (2009) states: “No 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.” To contravene section 1 A of article XVII, a person concurrently must hold two offices having duties that involve the exercise of some portion of the sovereign power of the State.

Sanders v. Belue, 78 S.C. 171, 174, S.E. 762, 763 (1907).

Furthermore, our courts recognize other relevant considerations in determining whether an

individual holds an office, such as, whether a statute, or other such authority, establishes the position, proscribes the position’s duties or salary, or requires qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 477, 266 S.E.2d 61, 62 (1980). In several prior opinions, this Office concluded members of the Irmo-Chapin Recreation

Commission are officers for purposes of dual office holding. We first made this determination in 1969, finding members of the Irmo-Chapin Recreation Commission exercise some part of the state’s sovereign power. Op. Att’y Gen., 1969 WL 10714 (S.C.A.G. Aug. 13, 1969). A 2014 opinion reiterated this finding, which is in keeping with numerous other opinions of this Office similarly concluding that members of other recreation commissions are officers for purposes of dual office holding. Op. Att’y Gen., 2014 WL 7210768 (S.C.A.G. Dec. 1, 2014) (“There is little doubt that members of the Irmo-Chapin Recreation Commission are officers for dual office ‘ holding purposes.”); Ops, Att’y Gen., 1997 WL 87948 (S.C.A.G. Jan. 29, 1997) (finding members of the Charleston County Park and Recreation Commission are officers and stating “this Office

has frequently concluded that members of other counties’ recreation commissions would be Rembert C. Dennis Building

Post Office Box 11549

«. Columbia, SC 292 11-1 549

. Telephone 803-734-3970

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Facsimile 803-253-6283

Dr. Akil E. Ross, Sr.
Page 2

April 22, 2022

considered officers.”); 1984 WL 249932 (S.C.A.G. July 17, 1984) (“This Office has concluded on numerous occasions that members of county recreation commissions hold an office for dual office holding purposes.”).

Therefore, we must consider whether your position as superintendent of

Lexington-Richland School District Five is also an office.
We reviewed Lexington-Richland School District Five’s enabling legislation and found no reference to the superintendent’s position. position was created by statute.

Therefore, we do not believe the superintendent’s

We also did not find a requirement that the superintendent take

an oath of office, be commissioned, or meet certain qualifications.

Wc arc of the understanding

that the superintendent serves at the pleasure of the Lexington-Richland School District Five Board of Trustees, the terms of which, including his or her salary, are determined via a contract between the superintendent and the board.

According to the South Carolina Supreme Court, “one who

merely performs the duties required of him by persons employing him under an express contract or otherwise, though such persons be themselves public officers, and though the employment be

in or about a public work or business, is a mere employe.” Sanders, 78 S.C. at 174, 58 S.E. at 763. Accordingly, we believe the superintendent’s position is ministerial as an employee of LexingtonRichland School District Five and not an office for purposes of dual office holding. Thus, we arc of the opinion that your service as both a member of the Irmo-Chapin Recreation Commission and as superintendent of Lexington-Richland School District Five docs not violate section 1 A of article XVII of the South Carolina Constitution. Conclusion

Although we find your position as a member of the Irmo-Chapin Recreation Commission is likely an office for purposes of dual office holding, we do not believe your service as the superintendent for Lexington-Richland School District Five constitutes an office. As such, we arc of the opinion

that you may serve in both positions without violating the prohibition on dual office holding contained in section 1 A of article XVII of the South Carolina Constitution. Sincerely,

Cydney Milling
Assistant Attorney General

REVIE

D AND APPROVED BY:

Robert D. Cook
Solicitor General

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