If someone serves on the board of the South Carolina Medical Malpractice Association, does that count as a 'public office' that would prevent them from holding any other state office?

Plain-English summary

Governor's Chief Legal Counsel Grayson Lambert asked a vetting question. The Governor appoints all 11 members of the South Carolina Medical Malpractice Association's board of directors under § 38-79-300(C)(4). Does serving on that board count as holding a "public office" for South Carolina's dual office holding bar (Art. VI § 3 and Art. XVII § 1A)? If yes, anyone the Governor appoints to the malpractice board cannot simultaneously serve in any other state office.

The AG, through Assistant Attorney General David Leggett, called this an "admittedly close case" and concluded a court would likely say no, the malpractice board is not a public office. The reasoning weighs the indicators from Sanders v. Belue (1907), State v. Crenshaw (1980), and Segars-Andrews (2010):

Pointing toward "office":
- Created by statute (§ 38-79-300)
- Members appointed by the Governor
- Statutory four-year terms with reappointment limits
- Members have a fiduciary relationship to the Association
- Created to serve a public benefit (a market of last resort for medical malpractice insurance)

Pointing away from "office":
- Members receive no compensation (§ 38-79-40(A))
- No oath or bond required
- No regulatory authority
- Cannot promulgate regulations binding on outsiders
- The plan of operation governs only the Association itself, not third parties
- Most actions require Department of Insurance approval or oversight
- Does not directly receive state funds (premiums and member assessments fund the Association)
- Registered as a nonprofit entity with the SC Secretary of State

The AG treats "exercising the authority of the sovereign" as the critical question. Because most of the Association's powers run inward (governing its own conduct and its members) and outward authority is heavily filtered through the Department of Insurance, the AG sees the board as more like a private nonprofit board than a public office. Long-standing AG opinions about other nonprofit boards (the Museum Foundation, Children's Trust Fund, Council on Aging boards, YMCA, Francis Marion Foundation) reach the same conclusion.

What this means for you

If you are being considered for appointment to the Medical Malpractice Association board

Accepting the appointment is unlikely to vacate any other state office you hold (or block any future appointment), because the AG views the seat as not constituting a public office for dual office holding purposes. The opinion is advisory, not binding. But:

• The opinion explicitly calls this "a close case." A court could disagree.
• If you also hold a separate, clearly-public office (sheriff, judge, legislator, school board), be aware that someone could try to challenge your malpractice board service in court.
• Reduce the litigation risk by documenting that you receive no compensation from the Association, take no oath, and act primarily in the Association's internal interest rather than as a state regulator.

If you are the Governor's office vetting appointees

Use this opinion as cover. When you appoint someone with another state role, you can rely on the AG view that malpractice board membership does not trigger Article VI § 3 or Article XVII § 1A. Document the reliance in the appointment file.

If you are an insurer or healthcare provider participating in the Association

The opinion does not change Association operations. The board still has the powers § 38-79-300 gives it: issuing insurance, underwriting, ceding and assuming reinsurance, adopting a plan of operation. The opinion just clarifies the constitutional status of the seats themselves.

If you are a citizen challenging a board member's other public role

You have a colorable challenge but a steep hill. You would need to convince a court that the AG's plausible-but-not-binding opinion is wrong. The AG's reasoning is anchored in long-standing case law and a parallel line of nonprofit-board opinions, so a challenge would likely lose. Better strategies for accountability questions about the Association generally run through the Department of Insurance's oversight, which is the regulator with actual authority over the Association's conduct.

Common questions

Q: What is the South Carolina Medical Malpractice Association?
A: A statutory entity created in 2020 that merged the prior Patients' Compensation Fund (excess malpractice insurance for participating providers) and the Joint Underwriting Association (JUA: a market of last resort for medical malpractice insurance). The Association continues the JUA's role and winds down the Fund.

Q: Why does this matter to the Governor's office?
A: The Governor appoints all 11 board members. If the seats counted as public offices, anyone the Governor wanted to appoint who already held another state office would have to choose. By concluding the board is not a public office, the Governor has a wider pool of appointees, and current state-office holders are not at risk of automatic vacatur.

Q: What's the difference between Art. VI § 3 and Art. XVII § 1A?
A: Both prohibit dual office holding using the same "office of honor or profit" language. Art. VI § 3 sits in the Officers article; Art. XVII § 1A sits in the Miscellaneous Matters article. They cover the same ground and are usually cited together.

Q: Does this mean the Association has no public character at all?
A: No. It was created by statute, has a public purpose (ensuring medical malpractice insurance availability), and its board is gubernatorially appointed. The opinion just says the seats do not rise to the level of a public office for dual office holding purposes. The Association is still subject to extensive Department of Insurance oversight.

Q: What about board members' fiduciary duties?
A: § 38-79-300(F) requires fiduciary duty to the Association. That is consistent with private-nonprofit-board service and was not enough to push the AG toward the "office" conclusion.

Q: Could someone challenge an appointment in court anyway?
A: Yes. AG opinions are advisory, not binding. A challenge would have to overcome the long line of opinions about nonprofit boards and the careful fact-pattern analysis here. The challenge is not impossible, but it is uphill.

Q: How is this different from a county hospital board, which is a public office?
A: Compare with the August 28, 2025 opinion on the Newberry County Hospital Board (also enriched). A county hospital board has rate-setting authority, can acquire property, and adopts rules with binding effect on the hospital's operation in a way that exercises state sovereign power. The Medical Malpractice Association board's authority is more inward-facing and runs through the Department of Insurance, which is what tilts this one out of "office" territory.

Background and statutory framework

The dual office holding bar in South Carolina has two lodging places in the constitution. Art. VI § 3 and Art. XVII § 1A both prohibit any person from holding "two offices of honor or profit at the same time," with narrow exceptions for notaries, militia officers, constables, constitutional delegates, and lawfully organized fire department members.

The test for what counts as a public office goes back to Sanders v. Belue (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." Segars-Andrews (2010), citing Willis v. Aiken County (1943), restates the test as a position where "'the 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.'" State v. Crenshaw (1980) lists the practical indicators: legislative creation, prescribed qualifications, prescribed duties, tenure, salary, bond, oath, and representative-of-sovereign status. No single indicator is dispositive.

The Medical Malpractice Association was formed January 1, 2020, by merger of the Fund and the JUA. § 38-79-300. It serves as the market of last resort for medical malpractice insurance under § 38-79-120(2). Membership is mandatory for all insurers writing medical malpractice insurance in South Carolina.

The Association's authority is significant in scope but heavily filtered. § 38-79-130 lets the Association issue and underwrite medical malpractice insurance and cede or assume reinsurance. § 38-79-140 lets it adopt a plan of operation governing its own conduct. But many key actions require Department of Insurance approval (§§ 38-79-130, -140, -180, -200, -210, -220, -280, -290).

The AG distinguishes between rule-making that binds outside parties (a strong indicator of sovereign authority: see the March 18, 2010 opinion) and internal governance documents like a plan of operation (not sovereign authority). The malpractice Association's plan of operation falls in the second category.

The Association is a registered nonprofit entity per the Secretary of State's records. Long-standing AG opinions about nonprofit boards (the Museum Foundation, Children's Trust Fund, Y, council-on-aging boards) consistently conclude those are not public offices, even when state-funded or state-affiliated.

The opinion is careful about its tentativeness. It uses "likely" rather than "definitely" and acknowledges that the question is close. The closeness reflects the genuine hybrid nature of the Association: a statutory creation serving a public function but operating like a private insurance association.

Citations and references

Constitutional and statutory authority:
- S.C. Const. art. VI § 3 (Dual office holding)
- S.C. Const. art. XVII § 1A (Dual office holding)
- S.C. Code § 38-79-300 (Medical Malpractice Association)
- S.C. Code § 38-79-120 (JUA as market of last resort)

Cases:
- Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907) (definition of public officer)
- Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 691 S.E.2d 453 (2010)
- Willis v. Aiken County, 203 S.C. 96, 26 S.E.2d 313 (1943)
- State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) (multi-factor indicator test)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-whether-membership-on-the-south-carolina-medical-malpractice-association-board-of-directors-constitutes-an-office/
• Original PDF: https://www.scag.gov/media/mtsbm52u/lambert-4-28.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

April 28, 2026

Mr. Grayson Lambert, Chief Legal Counsel
Office of the Governor

1100 Gervais Street

Columbia, SC 29201

Dear Mr. Lambert:

Attorney General Alan Wilson referred your letter to the Opinions section for a response.
You seek an opinion regarding whether membership on the Board of Directors of the South
Carolina Medical Malpractice Association constitutes an “office” for purposes of the dual office
holding prohibition of the South Carolina Constitution. See S.C. Const. art. VI § 3 and XVII § 1A.
While this is an admittedly close case, we think a court would likely conclude that no, membership
on the Board of Directors of the South Carolina Medical Malpractice Association does not
constitute holding an office.

Law/Analysis

Article VI, Section 3 of the South Carolina Constitution prohibits any person from
simultaneously holding “two offices of honor or profit.” The limitation does not apply to notaries,
militia officers, constables, constitutional delegates, or members of lawfully and regularly
organized fire departments. S.C. Const. art. VI, § 3. “One who is charged by law with duties
involving an exercise of some part of the sovereign power, cither 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 8.C. 171, 174, 58 S.E. 762, 763 (1907). A position is
considered an office for purposes of dual office holding when “ ‘the 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.’ ” Segars-Andrews v. Jud. Merit Selection Comm’n, 387 S.C. 109, 124, 691 S.E. 2d
453, 461 (2010) (quoting Willis v. Aiken County, 203 S.C. 96, 103, 26 S.E.2d 313, 316 (1943)).
When determining whether a position is an office under our constitution, relevant considerations
include “whether the position was created by the legislature; whether the qualifications for
appointment are established; whether the duties, tenure, salary, bond and oath are prescribed or
required; [and] whether the one occupying the position is a representative of the sovereign; among
others.” State v. Crenshaw, 274 8.C. 475, 478, 266 S.E.2d 61, 62 (1980). No single characteristic
is conclusive, and it is not necessary that all criteria be met. Id.

The South Carolina Medical Malpractice Association (“Association”) was formed on
January 1, 2020, through a merger of the Patients’ Compensation Fund (“Fund”) and the Joint

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Mr. Grayson Lambert
Page 2
April 28, 2025

Underwriting Association (“JUA”). See S.C. Code Ann. § 38-79-300 (Supp. 2025). The
Association serves as a continuation of the JUA and assumes the obligations and responsibilities
of the Fund while the Fund was wound down. Jd. To understand the role and purpose of the
Association, a brief review of the history of the Fund and JUA is helpful. The Fund was created
by the General Assembly in 1976 to pay medical malpractice claims in excess of statutorily defined
amounts on behalf of participating licensed health care providers. See Act No. 674 § 2, 1976 S.C.
Acts 1773; see also S.C. Code Ann. § 38-79-420 (2015), repealed by Act. No. 67 § 2, 2019 S.C.
Acts 409. Participation in the Fund was optional. See S.C. Code Ann. § 38-79-440 (2015), repealed
by Act. No. 67 § 2, 2019 S.C. Acts 409. In short, the Fund provided optional excess medical
malpractice insurance for licensed health care providers who wished to supplement their own
medical malpractice coverage. In contrast, the JUA was created by the General Assembly in 1975
to ensure the availability of medical malpractice, and other types of professional liability,
insurance. See Act No. 306 § 3, 1975 S.C. Acts 823. As amended, the JUA, and now the
Association, serves as a market of last resort for medical malpractice insurance. S.C. Code Ann. §
38-79-120(2) (Supp. 2025). Membership in the JUA is mandatory for all insurers writing medical
malpractice insurance in the State. Jd. Thus, the purpose and object of the JUA is distinct from the
Fund. The JUA exists to govern insurers and guarantee the availability of medical malpractice
insurance for health care providers, while the Fund existed to provide optional excess insurance
coverage to health care providers.

The Association, in its current form, was created by the General Assembly. See S.C. Code
Ann. § 38-79-300 (Supp. 2025). The Association retains the obligations and responsibilities of the
JUA, § 38-79-300(B), including the authority to issue medical malpractice insurance, § 38-79-
130(1) (Supp. 2025); underwrite medical malpractice insurance, § 38-79-130(2); cede and assume
reinsurance, § 38-79-130(3); and adopt a plan of operation which governs its conduct and its
members, § 38-79-140 (Supp. 2025). The Association is governed by a Board of Directors. § 38-
79-300(C)(4). The Board consists of eleven members, all appointed by the Governor, as follows:

(a) four medical providers after consultation with the South Carolina Medical
Association, the South Carolina Hospital Association, the South Carolina Nurses
Association, and the South Carolina Dental Association;

(b) four representatives from the medical malpractice insurance industry
representing member companies of the association after consultation with the three
largest members;

(c) two consumer representatives;

(d) one independent insurance agent or broker not affiliated with one of the three
medical malpractice insurance companies already represented on the board; and

(e) the Director of the Department of Insurance, who serves ex-officio and does not
have any voting privileges.

Mr. Grayson Lambert
Page 3
April 28, 2025

S.C. Code Ann. § 38-79-300(C)(4). Members of the Board serve four-year terms and may be
reappointed for two additional four-year terms. § 38-79-300(E). Members of the Board have a
fiduciary relationship to the Association. § 38-79-300(F). The Board of Directors, on behalf of the
Association, has the authority to select and oversee an administrator which conducts the business
of the Association, formerly the JUA. § 38-79-300(D).

Having reviewed the Association and Board of Directors history and authority, we can now
consider whether membership on the Board constitutes holding an office. We think it does not.
While the Association, and its predecessors, were created by the General Assembly and members
of the Board are appointed by the Governor for terms of a length set by the General Assembly,
these facts are not dispositive. Members of the Board do not receive compensation for their
services, see § 38-79-40(A) (2015), and do not, as far as this Office is aware, take an oath or carry
a bond.

Beyond gubernatorial appointment of Board members, the Association lacks many of the
hallmarks frequently associated with an office. For example, the Association is not authorized to
sell debt; the Association does not have any regulatory authority; the Association does not make
or enforce laws. Further, many, if not all, of the Association’s actions are subject to approval or
oversight by the Director of the Department of Insurance. See e.g., S.C. Code Ann. §§ 38-79-
1301) (Supp. 2025), -140(4) (Supp. 2025), -180 (Supp. 2025), -200 (Supp. 2025), -210 (Supp.
2025), -220 (Supp. 2025), -280 (Supp. 2025), -290 (Supp. 2025). This office has consistently
opined that a member of a body that possesses purely advisory responsibilities is not an office
holder. See e.g, Ops. S.C. Att’y Gen., November 25, 2025 (Health Planning Committee); 2023
WL 6445003 (Sept. 21, 2023) (Palmetto College Board of Visitors); 2023 WL 2358257 (Feb. 23,
2023) (Richland County Conservation Commission); 2021 WL 303801 (Jan. 14, 2021)
(Respiratory Care Committee), 2006 WL 1877113 (June 1, 2006) (Regional Education Center
Advisory Board); 2004 WL 439320 (Feb. 24, 2004) (Beaufort County Solid Waste and Recycling
Board); 2003 WL 21040133 (Jan. 15, 2003) (Town of Hilton Head’s Accommodations Tax
Advisory Committee); 1977 WL 24461 (April 26, 1977) (Waccamaw Regional Planning and
Development Council).

This Office has previously stated that the ability to promulgate regulations signals excising
the authority of the sovercign. Op. S.C. Att’y Gen., 2010 WL 1370087 (March 18, 2010) (citing
Ops. S.C. Att’y Gen., 2004 WL 885191 (April 20, 2004); 2005 WL 1024608 (April 14, 2005);
2008 WL 5476553 (Dec. 18, 2008)). The Association is not authorized to promulgate regulations.
It does have the authority to adopt and amend a plan of operation, but much like the regulations
promulgated by the Cherokee Foster Care Review Board and considered in our prior opinion of
December 18, 2008, the scope of the plan of operation relates purely to the Association’s conduct,
not the conduct of other entities. See Op. S.C. Att’y Gen., 2008 WL 5476553 (Dec. 18, 2008)
(“However, section 20-7-2379(E) limits the scope of the Board’s regulations to procedures relating
to the Board’s authority given under section 20-7-2379, which consist solely of the authority to
review and make recommendations to the Governor or the Legislature regarding foster care

Mr. Grayson Lambert
Page 4
April 28, 2025

policies and procedures. Accordingly, we do not believe the Board’s ability to promulgate
regulations constitutes an exercise of the sovereign power of the State.”), As a result, the adoption
and amendment of the plan of operation does not constitute the promulgation of regulations or
exercising the power of the sovereign.

Additionally, the Association does not appear to directly receive state funds. Instead, it
appears to be funded through policy holder premiums and assessments against its membership
(insurance providers), Section 38-79-220(7) provides for public funds to be expended to help pay
down the accumulated debt of the Fund, but the money for this is routed to the Department of
Insurance not directly to the Association. S.C. Code Ann. § 38-79-220(7) (Supp. 2025). This again
weighs against membership on the Board constituting an Office.

Finally, according to the South Carolina Secretary of State’s Business Entities Search, the
South Carolina Medical Malpractice Association, and the South Carolina Medical Malpractice
Liability Joint Underwriting Association before it, are registered as nonprofit entities. On
numerous occasions we have concluded that membership on the board of directors of a private
nonprofit corporation would not constitute an office for purposes of dual office holding. Op. S.C,
Att'y Gen., 2005 WL 2415980 (Sept. 14, 2005) (citing Ops. S.C. Atty. Gen., 2005 WL 1983350
(July 5, 2005) (South Carolina Museum Foundation); 1993 WL 720100 (April 12, 1993)
(Community Young Men’s Christian Association of Rock Hill, $.C.); 1991 WL 634921 (January
11, 1991) (Francis Marion Foundation); 1988 WL 383564 (Oct. 18, 1988) (Children’s Trust Fund
of South Carolina); 1987 WL 342467 (Sept. 8, 1987) (Horry County Council on Aging); 1983 WL
142750 (Oct. 20, 1983) (York County Council on Aging, Inc.)).

The Association was created to provide a public benefit, namely a market of last resort for
medical malpractice insurance, but it is difficult to ascertain any authority of the sovereign
exercised by the Association. Exercising the authority of the sovereign is the crucial question when
considering dual office holding questions, so a balancing of the facts leads us to conclude that
members of the Board do not hold an office as contemplated in the South Carolina Constitution’s
prohibition on dual office holding.

Conclusion

You asked whether membership on the Board of Directors of the South Carolina Medical
Malpractice Association constitutes an office for purposes of the dual office holding prohibition
of the South Carolina Constitution. See S.C. Const. art. VI § 3 and XVII § LA. We think a court
would likely conclude that no, membership on the Board of Directors of the South Carolina
Medical Malpractice Association does not constitute an office.

Mr. Grayson Lambert
Page 5
April 28, 2025

Sincerely,

Assistant Attorney General

REVIEWED AND APPROVED BY:

obert D. Cook

Solicitor General Emeritus