Did a South Carolina PEBA board seat count as a public office for dual-office rules in 2012?

Plain-English summary

In 2012, the South Carolina Attorney General predicted that a court would classify membership on the new Public Employee Benefit Authority board as a public office for the state’s dual-office prohibition. The legislature created the board, set qualifications and fixed terms, paid members a salary, and gave it broad authority over state retirement and insurance programs. Those features indicated continuing duties involving state sovereign power. The opinion also explained the then-prevailing consequence of accepting a second incompatible office: the first was deemed vacated, while the person might continue as a de facto officer until the vacancy was filled. It did not determine the eligibility of every possible appointee.

Currency note

This opinion was issued in 2012. 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: Did PEBA board membership count as a public office?
A: The AG predicted a court would say yes under the state’s dual-office test.

Q: Why did the board qualify as an office?
A: Its statutory authority and continuing policy duties over public benefit programs, together with fixed terms and pay, supported that classification.

Q: Could a current officeholder seek a PEBA seat?
A: The opinion said holding one office did not bar a person from seeking another; the person could give up the first office.

Q: What if a person accepted an incompatible second office?
A: The opinion described the first office as vacated by law, with possible de facto service until the vacancy was filled.

Background and statutory framework

A senator asked whether the recently created benefits authority board was an office. The AG applied South Carolina decisions distinguishing continuing sovereign duties from ordinary employment.

Citations and references

The opinion discussed the state constitutional dual-office provision and Sanders v. Belue and State v. Crenshaw.

Official title

As to whether membership on the Board of Directors of the South Carolina Public Employee Benefit Authority (“PEBA”) constitutes an “office” for purposes of the dual office holding prohibition.

Requester

The Honorable John L. Scott, Jr., Senator, District No. 19

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-13-2012/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/09/scott-j-l-jr-os-9491-9-13-12-PEBA-board-of-directors-DOH.pdf

Original opinion text

ALAN WILSON
ATIORNEY GENERAL

September 13, 2012

The Honorable John L. Scott, Jr.
.Senator, District No. 19
6 12 Gressette Senate Building
Columbia, SC 29202
Dear Senator Scott:
We understand from your letter that you desire an opinion as to whether membership on the Board of Directors of the South Carolina Public Employee Benefit Authority ("PEBA") constitutes an "office" for purposes of the dual office holding prohibition. As you know, Article XVII,§ IA of the South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time ... ," with exceptions specified for an officer in the militia, a member of a lawfully and regularly organized fire department, constable, or a notary public. As we advised in an opinion of this Office dated April 26, 1977, "[t]o determine whether a position is an office or not depends upon a number of circumstances and is not subject to any precise formula. " The South Carolina Supreme Court, though, has held that for this provision to be contravened, a person concurrently must hold two 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. Conversely, 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 employee. Id., 58 S.E. at 763; accord Edge v. Town of Cayce, 187 S.C. 172, 197 S.E. 216 (1938). Other relevant considerations, as identified by the Court, are whether statutes, or other 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, 62-63 (1980); see Ops. S.C. Atty. Gen., February 4, 2008; July 19, 200 I; March 16, 1999. "No single criteria is conclusive; neither is it necessary that all the characteristics of an officer or officers be present." Crenshaw, 266 S.E.2d at 62-63 [citing 67 C.J.S. Officers §8(a) (1978)). The Legislature enacted 2012 S.C. Acts. No. 278 (the "Act"), which became effective on July 1, 2012, to reform the State's retirement systems. PEBA was established in §30A of the Act, and its authority is codified in S.C. Code Ann. §§9-4-10 et seq. Pursuant to the Act, the Employee Insurance

R EMBERT C . D ENNIS B UILDING

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P OST OFFICE Box 11549

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COL UMBIA, SC 2921 1-1549

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T ELEPHONE 803-734-3970

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F ACSIMILE 803-253-6283

The Honorable John L. Scott, Jr.
Page 2
September 13, 2012

Program and the Retirement Division of the South Carolina Budget and Control Board are transferred to, and incorporated into, PEBA. The governing body of PEBA consists of a Board of Directors (the "Board") consisting of 11 members serving for fixed terms, and whose qualifications are established for appointment. Board members receive an annual salary. Significantly, the Board is authorized to administer and operate the various retirement systems and retirement programs pursuant to Title 9 of the South Carolina Code and, beginning January 1, 2014, the Board will administer the deferred compensation program. The Act clearly vests the Board with broad powers to make policy decisions effecting public employees, the retirement systems and retirement programs, the deferred compensation program, to adopt rules and regulations, and so forth. ld. 1

1

The title of the Act shows the authority conferred upon PEBA by the Legislature. It reads, in pe11inent part, as follows:
. ..TO AMEND CHAPTER 4, TITLE 9, RELATING TO RETIREMENT
LAW, SO AS TO EST AB LISH THE SOUTH CAROLINA PUBLIC
EMPLOYEE BENEFIT AUTHORITY (PEBA), PROVIDE FOR ITS
MEMBERSHIP AND THEIR COMPENSATION, DEVOLVE FROM THE
STATE BUDGET AND CONTROL BOARD TO PEBA THE
ADMINISTRATION OF THE EMPLOYEE INSURANCE PROGRAM (EIP),
ADMINISTRATION
OF
THE
RETIREMENT
DIVISION,
COTRUSTEESHIP OF THE STA TE RETIREMENT SYSTEM, AND THE
DUTIES OF THE SOUTH CAROLINA DEFERRED COMPENSATION
COMMISSION (SCDCC), TO PROVIDE THOSE ACTIONS OF PEBA
REQUIRING APPROVAL BY THE STATE BUDGET AND CONTROL
BOARD OR ITS SUCCESSOR, TO REQUIRE PEBA TO MAINTAIN A
PUBLIC TRANSACTION REGISTER, AND TO REQUIRE AN ANNUAL
FIDUCIARY AUDIT OF PEBA; TO AMEND SECTIONS 1-11-703, AS
AMENDED, 1-11-710, AS AMENDED, 1-11-720, AS AMENDED, 1-11-725,
1-11-730, AS AMENDED, 1-1 1-740, 1-11-750, 1-11-770, 8-23-20, AS AMENDED, 8-23-30, AS AMENDED, 8-23-70, 8-23-110, 9-1-20, 9-1-210, 91-310, AS AMENDED, 9-1-1515, AS AMENDED, 9-1-1830, 9-2-10, CHAPTER 2 OF TITLE 9, SECTIONS 9-8-10, AS AMENDED, 9-8-30, 9-860, AS AMENDED, 9-9-10, AS AMENDED, 9-9-30, 9-10-10, 9-10-60, AS AMENDED, 9-11-30, AS AMENDED, 9-12-10, 9-16-10 AND 9-16-55, BOTH AS AMENDED, 9-18-10, 9-20-30, AS AMENDED, 9-21-20, AS AMENDED, 59-1-470, RELATING TO VARIOUS ELEMENTS OF THE EMPLOYEE INSURANCE PROGRAM, STATE RETIREMENT SYSTEM, AND THE SOUTH CAROLINA DEFERRED COMPENSATION COMMISSION, SO AS TO CONFORM THESE PROVISIONS TO PEBA GOVERNANCE; TO AMEND SECTION 9-1-1310, AS AMENDED, RELATING TO THE TRUSTEE OF THE RETIREMENT SYSTEM AND INVESTMENTS ALLOWED FOR THE ASSETS OF THE RETIREMENT SYSTEM, SO AS TO PROVIDE THAT PEBA AND THE STA TE BUDGET AND CONTROL BOARD, OR ITS SUCCESSOR, ARE COTRUSTEES OF THE RETIREMENT SYSTEM ...

The Honorable John L. Scott, Jr.
Page 3
September 13, 2012

In our opinion, a court would likely find that the statutory creation of the Board, its qualifications for appointment and salary, coupled with the explicit duties and power of the Board which appear to include the exercise of a pmiion of the State's sovereign power, meet the definition of an office for dual office holding purposes based upon the foregoing criteria enunciated by the Court in Sanders and Crenshaw. See, e.g., Ops. S.C. Atty. Gen., May 4, 2007 [advising that "interim Director" of South Carolina Department of Transportation (DOT), designated by law to administer the DOT which is responsible for the State's roads, highways and bridges, exercises the sovereign powers of the State and is an officer for dual office holding purposes]; January 19, 1983 [advising that members of county airport commission were officers for dual office holding purposes, where their powers and duties included the authority to administer aeronautical laws and handle all matters affecting the county airports, and the members were given general authority over the lands and funds provided for the county's airports and aeronautical activities]. Of course, the fact that a person occupies an office does not prevent that person from offering for another office. The person may simply choose to give up the first office in favor of the second . Op. S.C. Atty. Gen., February 26, 2003 . We further advise that if a person assumes the second office while still holding the first, the law dictates the result. Basically, w hen an officer accepts a second office, that person is deemed by law to have vacated the first office. However, the person continues to serve as a de facto officer until the vacancy is filled. Ops. S.C. Atty. Gen., July 28, 2003 ; July 13, 1995; see Walker v. Harris, 170 S.C. 242 (1933); Dove v. Kirkland, 92 S.C. 3 13 ( 1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. 156 ( 1877). As an officer de facto, any action taken as to the public or third parties would be as valid and effectual as those actions taken by an officer de Jure unless or until a court should declare those acts invalid or remove that person from office. Ops. S.C. Atty. Gen., July 19, 20 12; March 12, 2010; see State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 ( 1976). If you have any further questions, please advise. Very truly yours,

N~

Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General