Can one person serve on a South Carolina county hospital board and a county elections commission at the same time?

Plain-English summary

Senator Ronnie Cromer asked the AG whether someone already serving on the Newberry County Hospital Board could simultaneously be appointed to the Newberry County Elections Commission. Solicitor General Emeritus Robert Cook said no.

South Carolina's constitution (Art. XVII, § 1A) bars any person from holding two "offices of honor or profit" at the same time. Whether a position counts as a "public office" turns on whether it carries some portion of the sovereign power of the state on a continuing basis (the test from Sanders v. Belue), reinforced by other markers like statutory authorization, prescribed duties, and a required oath (State v. Crenshaw). Both bodies easily clear that bar: the Hospital Board can set rates, acquire property, and adopt rules under its 1971 enabling acts, and the Elections Commission runs voter registration and elections. Prior AG opinions have repeatedly classified members of county hospital boards and election commissions as office holders, and the AG saw no reason to treat Newberry County's any differently.

The opinion also explains the cleanup mechanism. If a person holding one office accepts a second incompatible office, the law automatically treats the first office as vacated when the second one begins. The person can keep performing the first office's duties as a de facto officer until a successor is selected, but acts taken in that capacity carry some risk of being challenged.

What this means for you

If you are a county official considering a second appointment

Before accepting, check whether both positions exercise any sovereign power: rule-making, taxing, spending public money, hiring/firing staff, issuing licenses, holding hearings, or running elections. If both do, taking the second job vacates the first one by operation of law. The constitutional bar is automatic and you do not get to choose which office to keep.

If you are a county council or appointing authority

Vet candidates for prior public-office service before appointing them. The AG opinion is a clear pre-existing record that hospital board and elections commission seats are both offices for dual-office-holding purposes. Appointing someone who currently holds either creates uncertainty about whether the prior office is vacant and whether anything that person does in the new seat is at risk.

If you are a citizen who learns your local official holds two offices

You have a colorable challenge. The relief usually sounds in quo warranto (a court order removing the person from one of the offices). Talk to a local government lawyer about whether the second office is truly an office of honor or profit and whether the militia, fire department, constable, or notary public exception in Art. XVII, § 1A applies.

If you are a de facto officer waiting to be replaced

Keep functioning, but be alert: not every act of a de facto officer survives a challenge. The AG opinions cited (March 16, 2012; July 28, 2003; July 31, 2000; July 13, 1995) consistently advise that the safest course is to step away from the first office promptly rather than rely on de facto protection.

Common questions

Q: Why is this called an "office of honor or profit"?
A: It is the constitutional language. "Honor" covers any public position that carries authority or trust, and "profit" covers any salary or stipend. Most county boards and commissions fit one or both.

Q: What about purely advisory boards or committees?
A: Those are usually not "offices" under Sanders v. Belue because they do not exercise sovereign power. The dual-office holding bar applies only when both positions carry some portion of state sovereignty.

Q: My constituent serves in the militia, fire department, as a notary public, or as a constable. Is that allowed?
A: Yes. Article XVII, § 1A explicitly carves out those four roles. They can be held simultaneously with another office.

Q: What happens to the first office once someone takes a second incompatible office?
A: The first office is treated as automatically vacated as a matter of law, even if no formal resignation has been filed. The person can keep performing those duties as a de facto officer until a successor is selected, but a challenge to those acts is possible.

Q: Are there exceptions for honorary positions or unpaid boards?
A: "Profit" is not required. An unpaid board still counts if it is an "office of honor": which it usually is when the body exercises any public power.

Background and statutory framework

Article XVII, § 1A of the South Carolina Constitution prohibits any person from holding two "offices of honor or profit" simultaneously. The carve-out is narrow: militia officers, regular fire department members, constables, and notaries public can stack offices.

The two-step test for what counts as a public office comes from Sanders v. Belue (1907), an office is one whose holder 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." State v. Crenshaw (1980) added secondary indicators: whether a statute or other authority establishes the position, prescribes its tenure, duties, or salary, or requires qualifications or an oath.

Newberry County Hospital's Board of Trustees was created by Act No. 808 of 1971 (amended by Act No. 809 of 1971). The Board has broad statutory authority, setting rates, acquiring property, adopting bylaws and rules, conducting hospital business, that easily satisfies the Sanders test. The AG has reached the same conclusion for many other county hospital boards (e.g., Op. S.C. Att'y Gen., 2017 WL 1955653 (May 4, 2017)).

County election commissions and voter registration boards have likewise been classified as offices in a long line of AG opinions (e.g., Op. S.C. Att'y Gen., 2004 WL 1683028 (July 9, 2004)). Running elections is a core sovereign function.

The de facto officer doctrine smooths over the immediate practical problem when someone inadvertently takes a second office. Under Walker v. Harris (1933) and State v. Coleman (1898), the prior office is deemed vacated, but the holder can continue in a de facto capacity until a successor takes over. State ex rel. McLeod v. Court of Probate of Colleton County (1976) limits how long de facto status protects the holder, especially where the public has notice of the vacancy.

Citations and references

Constitutional and statutory authority:
- S.C. Const. art. XVII, § 1A (Dual office holding prohibition)

Cases:
- Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907) (definition of "public officer")
- State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) (secondary indicators of public office)
- Walker v. Harris, 170 S.C. 242, 170 S.E. 270 (1933) (de facto officer doctrine)
- State v. Coleman, 54 S.C. 282, 32 S.E. 406 (1898) (de facto officer doctrine)
- State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976) (limits on de facto doctrine)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-dual-office-holding-member-of-newberry-county-hospital-board-and-serve-on-newberry-county-elections-commission/
• Original PDF: https://www.scag.gov/media/oz4ab05w/cromerr-os-11061-final-opinion-8-28-2025.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

August 28, 2025

The Honorable Ronnie Cromer, Member
South Carolina Senate

410 Gressette Bldg.

Columbia, SC 29201

Dear Senator Cromer:

You have asked a dual office holding question. You have a constituent presently serving
on the Newberry County Hospital Board. You would like to recommend this individual to serve
on the Newberry County Elections Commission. You wish to know “whether one person may
lawfully serve on both boards simultaneously.” It is our opinion that the simultaneous service in
both positions would constitute dual office holding as prohibited by Article XVII, § 1A of the
South Carolina Constitution.

Article XVII, Section 1A of the South Carolina Constitution provides that "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." For
this provision to be contravened, a person concurrently must hold two public 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). "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." Id., 58 S.E. 762,
763. Other relevant considerations are whether statutes, or other such authority,
establish the position, prescribe its tenure, 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).

While we are not aware of a prior opinion specifically addressing whether a member of
the Newberry County Hospital Board is an “office” for dual office holding purposes, we have
consistently concluded that members of other county hospital boards are officers. See Op. S.C.
Att'y Gen., 2017 1955653 (May 4, 2017 and opinions referenced therein). The Newberry
County Hospital Board of Trustees was established by Act No. 808 of 1971, as amended by Act
No, 809 of 1971. Among the Board’s many powers, is the authority to set rates and charges, to
acquire real and personal property and to adopt bylaws, rules and regulations for the conduct of

REMBER iS BUILDING POST OFFICE BOX 11549 « COLUMBIA, SC 29911-1549 PELEPHONE SUR-7434-2976 FACSIMILE 8043-253.6383

The Honorable Ronnie Cromer
Page 2
August 28, 2025

its business. Clearly, consistent with our other opinions, the Hospital Board exercises sovereign
powers.

Likewise, members of the Newberry County Board of Voter Registration and elections
hold an office for dual office holding purposes. Without question, these boards exercise
sovereign powers. As we have previously stated, “... we have consistently concluded that other
members of various election commissions and voter registration boards throughout the state are
office holders.” Op. S.C. Att’y Gen., 2004 WL 1683028 (July 9, 2004 and opinions cited
therein). Thus, simultaneously serving on both boards would constitute dual office holding.

Finally, we have advised the following with respect to dual office holding:

. -we advise that this office has consistently been of the opinion that when a dual
office holding situation occurs, the law operates to automatically "cure" the problem.
Thus, if an individual olds one office on the date he assumes a second office,
assuming both offices fall within the purview of Article XVII, § 1A (or one of the
other applicable constitutional prohibitions against dual office holding), that person is
deemed by law to have vacated the first office. See Ops. S.C. Atty. Gen., March 16,
2012; July 28, 2003; July 31, 2000; July 13, 1995. However, the individual may
continue to perform the duties of the previously held office as a de facto officer until
a successor is duly selected to assume the duties or complete the term of office. See
Walker v. Harris, 170 S.C. 242, 170 S.E. 270 (1933); State v. Coleman, 54 S.C. 282,
32 S.E. 406 (1898); While the actions taken by a de facto officer are generally held to
be valid with regard to third parties, there is no question that such officer is acting
under color of law rather'than with full de jure status which he would possess if there
had been no dual office holding. Furthermore, there exists general authority that the
protections afforded a de facto officer will not be deemed to continue indefinitely,
particularly when the public is chargeable with notice that the officer's status has
been reduced to one of de facto rather than de jure. See State ex rel. McLeod v. Court
of Probate of Colleton County, 266 S.C. 279,223 S.E.2d 166 (1976); Ops. S.C. Atty.
Gen., March 16, 2012; May 7, 1998. This de facto capacity does carry with it some
risk, however. While a de facto officer's actions are generally held to be valid with
regard to third parties, it is possible that a court might find that the actions of a de
facto officer are invalid. In this instance, for example, an arson investigator charged
with police powers in this State may be performing those duties in a de facto, rather
than de jure capacity. Accordingly, we advise that the wisest course of action in this
case would be for such individual to avoid a situation where his/her actions could be
called into question. See Op. S.C. Atty. Gen., July 28, 2003.

Op. S.C. Att’y Gen., 2012 WL 3142775 (July 19, 2012).

The Honorable Ronnie Cromer
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August 28, 2025

Wh D. Cook

Solicitor General Emeritus