Could a Hartsville council member also serve on the board of Rubicon Counseling Center?

Plain-English summary

Hartsville's city clerk asked whether a council member could also sit on Rubicon Counseling Center's board. The Attorney General treated the council seat as a public office. The other seat depended on Rubicon's status: the materials described it as a private charitable corporation registered as a nonprofit, and the office had previously concluded that a private nonprofit charitable corporation's director was not a public officer for this purpose.

The answer was expressly conditional. If Rubicon was in fact a private nonprofit charitable organization, simultaneous service would not violate South Carolina's constitutional ban on holding two public offices. The opinion did not make an independent finding about Rubicon's organizational status.

Currency note

This opinion was issued in 2005. 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

Did the AG treat the Hartsville council seat as a public office?
Yes. Its analysis said city and town council members held offices for the dual-office rule.

Why did Rubicon's status matter?
The office's prior opinions treated service on the board of a private nonprofit charitable corporation as outside the constitutional definition of a public office.

Was the answer unconditional?
No. It depended on Rubicon actually being the private nonprofit organization described in the materials supplied with the request.

Background and statutory framework

The state constitutional provision barred simultaneous holding of two offices of honor or profit, subject to stated exceptions. The opinion explained that a public office involves an exercise of sovereign power and applied earlier office opinions to the council seat and the nonprofit board seat.

Citations and references

The opinion discussed Article XVII, Section 1A of the South Carolina Constitution and Sanders v. Belue in explaining what counted as a public office.

Official title

Regarding dual office holding. Specifically, whether an individual currently serving as a councilmember for the City of Hartsville could concurrently serve on the board of directors for Rubicon Counseling Center.

Requester

Sherron L. Skipper, City Clerk, City of Hartsville

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-14-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05sept-14-Skipper.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRv McMAsTER
ATI"'ORNEY GENERAL

September 14, 2005

Shen-on L. Skipper, City Clerk
City of Hartsville
P.O. Drawer 2497
Hartsville, South Carolina 29551
Dear Ms. Skipper:

L..

By letter, you requested an opinion of this Office regarding dual office holding. Specifically, you inquire as to whether an individual currently serving as a council.member for the City of Hartsville could concurrently serve on the board ofdirectors for Rubicon Counseling Center without violating t11e dual office holding provision of the South Carolina Constitution. With your request, you included a letter from the South Carolina State Budget and Control Board expressing its belief that Rubicon Counseling Center was a private eleemosynary corporation. Furthermore, you provided evidence that the corporation is registered with the Internal Revenue Service as a 501 (c)(3) nonprofit organization. Following review of this matter, we advise that if in fact Rubicon Counseling Center is an eleemosynary organization subject to 501 (c)(3) nonprofit status, then simultaneous service as a city council.member and as a member of the board of directors for Rubicon Counseling Center would not violate the dual office holding provision.

Law/Analysis
Article XVII, Section lA of the South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time ... 11 with exceptions specified for an officer in the militia, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concmTently 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). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its 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). Furthermore, "[O]ne who merely performs the duties required of him under an express contract or otherwise, though such persons themselves be public officers, and though the employment be in or about a public work or business, is a mere employee." Sanders, supra, 78 S.C. at 174. This Office has advised on numerous occasions that a member of a city or town council would be considered an office holder for purposes of the dual office holding provision. See, as

Ms. Skipper
Page2
September 14, 2005

representative, Ops. SC. Atty. Gen., July 19, 2001; April 12, 1998; June 12, 1995, February4, 1994; July 23, 1993. Therefore, the question now turns to whether membership on the board of directors of Rubicon Counseling Center constitutes an office for purposes of dual office holding.

I
I

Attached to your request for an opinion of this Office, you included a letter from the South Carolina State Budget and Control Board. By letter dated June 27, 2005, the State Budget and Control Board indicated that it was of the opinion that "Rubicon, Incorporated is a private eleemosynary organization providing contracts services to Darlington County." Furthermore, you provided information that the corporation is registered with the Internal Revenue Service as a 501 (c)(3) nonprofit organization. On numerous occasions we have concluded that membership on the board of directors of a private nonprofit eleemosynary corporation would not constitute an office for purposes of dual office holding. See, as examples, Ops. S. C. Atty. Gen., July 5, 2005 (South Carolina Museum Foundation); April 12, 1993 (Charleston Citywide Local Development Corporation and Community Young Men's Christian Association of Rock Hill, S.C. not office); January 11, 1991 (Francis Marion Foundation); October 18, 1988 (Children's Trust Fund of South Carolina); September 8, 1987 (Horry County Council on Aging); October 20, 1983 (York County Council on Aging, Inc.). Assuming that Rubicon Counseling Center is indeed a private nonprofit eleemosynary corporation, then we are aware of no reason why membership on the board of directors would constitute an office for purposes of the dual office holding provision.

Conclusion
It is our opinion that an individual who simultaneously serves as a member of the Hartsville city council and on the board of the Rubicon Counseling Center would not violate the dual office holding provision of the South Carolina Constitution.

Assistant Deputy Attorney General