Did Walterboro and Colleton County officials violate South Carolina’s dual office rule by serving on the airport commission in 2006?

Plain-English summary

The South Carolina Attorney General concluded in 2006 that five Walterboro and Colleton County officials could serve on the Walterboro-Colleton Airport Commission without violating the state's constitutional dual office holding prohibition. The officials served on the commission by virtue of the city or county offices they already held. The opinion treated the commission duties as ex officio duties attached to those offices.

The opinion relied on earlier Attorney General opinions about this same commission and on the South Carolina Supreme Court's decision in Ashmore v. Greater Greenville Sewer Dist. It said no contrary law or intervening legal change warranted abandoning the earlier conclusion.

Currency note

This opinion was issued in 2006. 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: Which airport commission seats did the opinion address?
A: It addressed seats held by the Colleton County Council chair, county auditor, county treasurer, Walterboro mayor, and chair of the city's finance committee.

Q: Why did the dual office prohibition not apply to those members?
A: The opinion said their airport commission duties came with their existing offices rather than constituting a prohibited second office under the ex officio rule.

Q: Did the office reconsider its earlier opinions about this commission?
A: Yes. It reviewed prior opinions and found no contrary law or change in the law since they were issued, so it agreed with their result.

Background and statutory framework

The request described commission membership established through city and county offices and provided the commission's enabling legislation and amendments. The Attorney General cited Ashmore for the rule that the constitutional prohibition does not apply when law places additional duties on an existing officer. It then applied its earlier opinions concerning the same commission to the listed members.

Citations and references

The linked opinion quotes Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947), and refers to prior Attorney General opinions on this commission.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-11-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06sept11murdaugh.pdf

Original opinion text

HENRY McMASTER
ArroRNEY GENERAL

September 11, 2006

Steven D. Murdaugh, Chairman
Walterboro-Colleton County Airport Commission
Post Office Box 8
Walterboro, South Carolina 29488
Dear Mr. Murdaugh:
We received your letter requesting on opinion of this Office on behalf of the WalterboroColleton Airport Commission "as to whether the members of the Walterboro-Colleton Airport Commission are in violation of the prohibition against dual office holding by serving on the Commission." You state as follows: Members of the Airport Commission are the Chairman of Colleton County Council, the Colleton County Auditor, the Colleton County Treasurer, the Mayor of the City of Walterboro and the Chairman of the City of Walterboro Finance Committee. Each member serves by virtue of holding his or her office in the City or County government. Included in your request, you provided us with copies of the enabling legislation and establishing the Walterboro-Colleton Airport Commission (the "Commission") and the subsequent amendments to this legislation.

Law/Analysis
In our research, we discovered prior opinions directly on point with your question. In an opinion dated April 24, 1978, we considered whether the members of the Commission violate the prohibition against dual office holding. Op. S.C. Atty. Gen., April 24, 1974. In that opinion, we cited the South Carolina Supreme Court Case of Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947), holding the constitutional prohibition against dual office holding does not apply to officers serving in an ex officio capacity. Id. In citing to Ashmore, we conclude because these members serve by virtue of their offices, "these office holders are not in violation of that constitutional provision." Id. We again addressed the issue ofwhether the members ofthe Commission listed above violate the dual office holding prohibition in two opinions dated September 9 and September 28 of 1998. Ops. S.C. Atty. Gen., September 28, 1998; September 9, 1998. These opinions appear to be the

I

~t.~~ . -

Omce Box 11549 •

eou ...... <n•11 '·'""" • .,..,

0

-

0

-

OM , , ,

·~-

•

" - - - · - - """"'" " " '

Mr.Murdaugh
Page2
September 11, 2006
same, and we gather the last is a reissuance of the first. These opinions again determined the members hold their positions on the Commission as ex officio members. Id. Therefore, we concluded:

I
I

Based on the foregoing, the dual office holding prohibitions of the State Constitution would not be violated if the mayor of Walterboro, the chairman of the county council of Colleton County, the treasurer of Colleton County, the auditor of Colleton County, and a member of the Walterboro City Council to be elected by the council simultaneously serve on the Airport Commission. The reason for such a conclusion is that these individuals serve on the Airport Commission by virtue of their other offices or ex officio. As stated in Ashmore, supra: "[t]he rule here enforced with respect to double or dual office holding in violation of the constitution is not applicable to those officers upon whom other duties relating to their respective offices are placed by law." Id. (quoting Ashmore, 211 S.C. 77, 92, 44 S.E.2d 88, 95). For your convenience, we included copies of the 1998 opinions, as well as the 1978 opinion, for your review.

l

L

"Generally, this Office recognizes the principle that we will not overrule our prior opinions unless clearly erroneous or unless applicable law has changed." Op. S.C. Atty. Gen., July 27, 2006. We find no law contrary to the Court's conclusions in Ashmore and no change in the law since the issuance of our prior opinions. Thus, we agree with our prior determinations that Chairman of Colleton County Council, the Colleton County Auditor, the Colleton County Treasurer, the Mayor of the City of Walterboro, and the Chairman of the City of Walterboro Finance Committee serve as ex officio members of the Commission and therefore, are not in violation of the dual office holding prohibition contained in Article XVII, section IA of the South Carolina Constitution (Supp. 2005). Very truly yours,

~cltJ~

Cyd~ey JI

Milling
Assistant Attorney General
REVIEWED AND APPROVED BY:

~SL~
oertD:COOk
Assistant Deputy Attorney General