Can a special-purpose district's executive director also serve as a soil and water conservation commissioner in South Carolina?

Official title

Opinion on dual office holding (serving as both Executive Director of the Chester Metropolitan District and as a commissioner with the Chester Soil and Water Conservation District).

Requester

Requested by Mr. Fred Castles, Executive Director of the Chester Metropolitan District.

Plain-English summary

The Executive Director of the Chester Metropolitan District (the public water provider in Chester County, a special purpose district) wanted to also serve as a commissioner of the Chester Soil and Water Conservation District. He asked the Attorney General whether wearing both hats would run afoul of South Carolina's rule against holding two public offices at once.

The office said no, it would not. South Carolina's constitution (Article XVII, § 1A) bars one person from holding "two offices of honor or profit at the same time" (with a few listed exceptions like notary or militia officer). The catch is that the rule only applies when both positions are actually "offices." A position is an office, under South Carolina case law, when it involves exercising part of the sovereign power of the state (taxing, eminent domain, police power), with courts also weighing whether a statute creates the position and sets its qualifications, duties, tenure, and oath.

Applying that test, the office found only one of the two positions is an office. A prior opinion had already concluded that members of the Chester Soil and Water Conservation District hold an office. But the Executive Director of the Chester Metropolitan District is a different matter. The office has long treated executive directors of commissions and governing boards as employees, not officers, especially when they serve at the pleasure of the board. The district's own enabling act describes the manager/executive director as employed personnel whom the commission can remove "at will." So the director is an employee, the conservation commissioner is an officer, and with only one office involved there is no dual-office-holding violation.

What this means for you

The requester and others in special-purpose-district leadership: The opinion concludes that holding the executive director position (an employee role serving at the board's pleasure) alongside a single public office like a conservation district commissioner does not violate the dual-office ban, because only one office is involved.

Special purpose district boards and HR staff: The opinion reinforces that an executive director or manager who serves at the will of the governing board is generally classified as an employee, not an officeholder, for dual-office-holding purposes.

Anyone weighing two government roles in South Carolina: The opinion is a clean illustration of the threshold question. Before worrying about the dual-office ban, determine whether each position is actually an "office," meaning it exercises part of the state's sovereign power. If one of the two is merely employment, the prohibition does not apply.

Common questions

Does South Carolina let one person hold two government positions?
It depends on whether both are "offices." Article XVII, § 1A bars holding two offices of honor or profit at once. If one position is employment rather than an office, there is no violation.

Is an executive director of a public board an "office holder"?
Generally no, according to this and prior opinions, particularly when the director serves at the pleasure of the governing board. The office treats such directors as employees.

Is a soil and water conservation district commissioner an office?
Yes. The opinion relies on a prior opinion concluding that members of the Chester Soil and Water Conservation District hold an office for dual-office-holding purposes.

What makes a position an "office" in the first place?
Whether it involves exercising part of the state's sovereign power (like taxing, eminent domain, or police power), along with factors like statutory creation, set qualifications, duties, tenure, and a required oath. No single factor is decisive.

Background and statutory framework

Article XVII, § 1A of the South Carolina Constitution prohibits one person from holding two offices of honor or profit at the same time, listing narrow exceptions (militia officer, fire department member, constable, notary public). The South Carolina Supreme Court held in Sanders v. Belue that the prohibition applies to positions that involve an exercise of some part of the sovereign power, and in State v. Crenshaw set out the factors courts weigh in deciding whether a position is a public office: statutory creation, qualifications for appointment, duties, tenure, a required oath, and authorization to exercise sovereign power, with no single criterion controlling.

The office layered its own prior opinions on top of that framework: one concluding that Chester Soil and Water Conservation District members hold an office, and a consistent line treating executive directors of commissions and governing boards as employees rather than officers, especially when they serve at the pleasure of the board. Because the Chester Metropolitan District's enabling legislation describes its manager/executive director as at-will personnel, the office concluded that role is employment, leaving only one office and no violation.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-dual-office-holding-serving-as-both-executive-director-of-the-chester-metropolitan-district-and-as-a-commissioner-with-the-chester-soil-and-water-conservation-district/
• Original PDF: https://www.scag.gov/media/lrtottzk/03638676.pdf

Original opinion text

Alan Wilson
Attorney general

July 16, 2024
Mr. Fred W. Castles, III PE

Executive Director
P.O. Box 550

Chester, South Carolina 29706

Dear Mr. Castles:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
states the following:
I wish to request an opinion from your office regarding dual-office holding. I
am employed as the Executive Director of the Chester Metropolitan District

(CMD), the public water provider in Chester County. CMD is a special purpose

district created by Act 379 of the Act and Joint Resolution of the General
Assembly of South Carolina of 1959. I wish to serve as a commissioner with
the Chester Soil and Water Conservation District here in Chester County. I want
to be sure that I am eligible to serve and hold a position with the Chester Soil

and Water Conservation District. I am employed “at-will” by the CMD Board
of Commissioner's.
Law/An ah sis

It is this Office’s opinion that a person would not violate the dual office prohibition in the
South Carolina State Constitution by serving as both Executive Director of the Chester
Metropolitan District and as a commissioner with the Chester Soil and Water Conservation

District. Article XVII, § 1 A of the South Carolina Constitution prohibits a person from holding
“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.”

A person violates this provision if he holds two or

more public offices which “involvfe] an exercise of some part of the sovereign power ...” Sanders

v. Belue, 78 S.C. 171, 58 S.E. 762 (1907); see also Op, S.C. Att’v Gen., 1996 WL 599391

ItEMDERT C. OENNIS BUILDING

Post Office Box 1 1549

. Columbia, SC2921 1-1549

» telephone 803-734-3970

<• Facsimile 803-253-6283

Mr. Fred W. Castles III, PE
Page 2
July 16, 2024

(September 6, 1996) (sovereignty traditionally includes the power to tax, power of eminent
domain, and police power). In State v. Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61,62 (1980),

the South Carolina Supreme Court stated that relevant considerations for determining whether a
position would be considered a public office include whether statutes, or other such authority,
establish the position, qualifications for appointment, duties, tenure, require an oath for the
position, or otherwise authorize the position to exercise a sovereign power of the state. No single
criterion is dispositive, and it is not necessary that a position exhibits all the criteria to find that a

position is an office. Id.

To address whether an individual violates the prohibition against dual office holding, we

must examine both positions to determine whether they are offices of honor or profit.

A prior

opinion found that members of the Chester Soil and Water Conservation District hold an office for
dual office holding purposes. See On. S.C. Att’y Gen., 1986 WL 289838 (September 18, 1986).
In contrast, this Office has issued several opinions finding, generally, executive directors of
commissions are not considered office holders.

[T]his Office has long held that the position of executive director for a commission
or governing board generally does not constitute an office. Ops. S.C. Att\ . Gen.

dated January 27, 2004; July 24, 2001; November 24, 1997; May 15, 1989; June
11, 1985; March 19, 1975. We stressed in the July 24, 2001 opinion “the fact that
the executive director served at the pleasure of the governing board or authority.”
In short, in virtually every previous instance in which the question has arisen, we
have concluded that an executive director of a governing board or commission
would be characterized as an employee rather than an officer.

On. S.C. Att’ v Gen., 2004 WL 1297822 (June 7, 2004).

This Office is unaware of any unique

characteristics of the Executive Director of the Chester Metropolitan District that suggests it would
be considered an office. In a March 10, 1986, opinion issued to Representative Paul E. Short, Jr.,
we were asked if the Chester Metropolitan District had the authority to hire and fire an executive
director and other necessary personnel. See 1986 S.C. Op. Att’y Gen. 105 (March 10, 1986).

Therein, we concluded that the district “has specifically been authorized to employ personnel1 such
1

The commission shall employ a manager who shall be superintendent-in-charge of the
entire operation of the district. The manager shall be employed at such salary as may be
determined by the commission. The commission shall have the right at will to remove or
discharge a person holding the position of manager.
The manager shall be the
administrative officer of the district and shall administer the affairs of the commission. He
shall carry out the policies defined by the commission. . . . The manager shall employ all
employees of the district subject to the approval of the commission
1968 Act No. 1488, §3.

Mr. Fred W. Castles III, PE

Page 3
July 16, 2024

as an executive director (‘manager’).” Id. (emphasis added).

Because the opinion classified the

Executive Director of the Chester Metropolitan District as “personnel,” we continue to be of the
opinion that the position is better characterized as an employee and not as an office holder. As a
result, a court is likely to find only one of the two positions described is an office and there would
be no violation of Article XVII, § 1 A of the South Carolina Constitution.

Sincerely,

.

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General