Could one person serve on Jasper County’s election board and the Palmetto Breeze transit board?

Plain-English summary

In 2019, South Carolina's Attorney General concluded that one person could not simultaneously serve on the Jasper County Board of Elections and Voter Registration and the Lowcountry Regional Transportation Authority board, also called Palmetto Breeze. The office treated both roles as public offices within the state's dual-office prohibition.

For the election board, the AG relied on an earlier opinion. For the transit authority, it pointed to the governing board's statutory appointment, term, and continuing powers, including public transportation services, contracts, and eminent domain. Those features supported treating its members as public officers rather than merely volunteers. The conclusion depended on the authority being a regional transportation authority under the law described in the request.

Currency note

This opinion was issued in 2019. 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: Could a Jasper County election commissioner also join Palmetto Breeze’s board? A: The AG said no; it concluded both seats were public offices covered by the dual-office ban.

Q: Why was a regional transit board seat considered a public office? A: The opinion pointed to statutory appointment and term provisions and the board’s public powers, including transportation service and eminent domain.

Q: Did the AG assume Palmetto Breeze was a statutory regional authority? A: Yes. It stated that its answer used that understanding from the request and a prior opinion.

Q: Did the opinion decide whether every transportation advisory group held public office? A: No. Its conclusion concerned this regional authority’s governing board and the named election board.

Background and statutory framework

A requester serving on the county election board asked about also serving on the Lowcountry Regional Transportation Authority board. The AG quoted the constitutional dual-office rule and the test for a continuing office exercising public authority. It applied prior opinions about election commissioners and regional transportation authorities to the two positions.

Citations and references

• S.C. Const, art. XVII § 1 A: dual-office provision quoted in the opinion.
• Section 58-25-50 of the South Carolina Code: regional-authority powers discussed by the AG.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-18-2019/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/09/KempJ-OS-10399-FINAL-Opinion-9-18-2019-LISTER-02094423xD2C78-02097376xD2C78.pdf

Original opinion text

Alan Wilson
ATTORNEY GENERAL

September 18,2019

Mr. John Kemp
319 Shearwater Drive

Bluffton, SC 29909

Dear Mr. Kemp:

You have requested an opinion from this Office regarding whether it would constitute dual office holding for an individual to serve on the board of both the Jasper County Election Board and the Lowcountry Regional Transportation Authority a/k/a Palmetto Breeze. You inform us that Lowcountry Regional Transportation Authority ("LRTA") was formerly known as the Beaufort-Jasper Regional Transportation Authority and that it has been legally designated by the State as a Regional Transportation Authority under section 58-25-10 of the South Carolina Code of Laws. In your letter, you included a job description of the position, which you stated came from the "By-Laws." The Job description included "Board Obligations," such as supporting the vision, mission, and values of LRTA; establishing policy; hiring, supervising, and evaluating the Executive Director; leading the strategic planning initiative; monitoring finances and ensuring adequate funding; and updating long range plans. LAW/ANALYSIS;

Dual office holding is provided for in the South Carolina Constitution, which states:

[n]o person may hold 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 ... The limitation above set forth does not prohibit any officeholder from being a delegate to a constitutional convention.

S.C. Const, art. XVII § 1 A.

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is:

"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." Sanders v. Belue. 78 S.C. 171, 174, 58 S.E. 762, 763 (1907), "In considering whether a particular position is an office in the constitutional sense, it must be demonstrated that "[t]he power of appointment comes from the state, the authority is ItENrBERTC.DENNlSBUILDING . POST OFFICE 3ox II549 - COLUMBIA,SC 29211-1549 . TELEPHONE 80.^734-3970 . FACSIMILE 803-253-6283

Mr. John Kemp
Page 2
September 18, 2019

derived from the law, and the duties are exercised for the benefit of the public." Willis v. Aiken County. 203 S.C. 96, 103 26 S.E.2d 313, 316

(1943). "The powers conferred and the duties to be discharged with regard to a public office must be defined, directly or impliedly, by the legislature or through legislative authority ..." 63 C Am Jur.2d Public Officers and Employees § 5 (2009).

Seears-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109, 691 S.E.2d 453 (2010). Other relevant considerations for an office are: 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; whether the one

occupying the position is a representative of the sovereign; among others.

Op. S.C. Attv. Gen.. 2013 WL 3243063 (June 17, 20131 (quoting State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61, 62 (1980)).

Our Office has previously opined that a member of the Jasper County Board of Elections and Voter

Registration1 was an officer for dual office holding purposes. 3522437 (Nov. 8, 2006).

See Op. S.C. Attv. Gen.. 2006 WL

We will now consider whether an individual serving on the Lowcountry

Regional Transportation Authority would hold an office. In a December 3, 1980 opinion, we stated that the Beaufort-Jasper Regional Transportation Authority, LRTA's predecessor, was created pursuant to the

Regional Transportation Authority Law, S.C. Code Ann. § 58-25-10 et seq. (1976 Code, as amended).2 Based upon that opinion as well as your letter, this opinion is issued with the understanding that LRTA is

a regional transportation authority pursuant to the Regional Transportation Authority Law. We have determined that generally, an individual serving on the governing board of a regional transportation authority created pursuant to the Regional Transportation Authority Law holds an office for dual office holding purposes. Op. S.C. Attv. Gen.. 1987 WL 245509, Op. No. 87-01 (Dec. 14, 1987). Our reasoning was as follows:

Members of the board would be appointed by the governing bodies of the

member cities and counties.3

A term of three years is specified.

Members may be reimbursed for expenses incurred in their service on the authority, but no salary or other compensation is to be paid. In case extensive services have been rendered, however, a per diem may be paid

1 The Jasper County Elections Board is referred to as the Board of Elections and Voter Registration in 2014 Act No. 132 (H.4521), § 1, eff July 1, 2014 and as the Board of Voter Registration and Elections in S.C. Code Ann. § 7-7330 (1976 Code, as amended).

2 Op. S.C. Attv. Gen.. 1980 WL 120987 (Dec. 3, 1980).

3 See S.C. Code Ann. § 58-25-40 (1976 Code, as amended).

Mr. John Kemp
Page 3
September 18, 2019

by a two-thirds vote of the authority. No qualifications are specified by statute, nor is an oath required by statute.

Powers and duties are specified by Section 58-25-50 in both the 1976 Code and the

1986 Cumulative Supplement. In either instance, the

authority through its governing body is authorized to provide transportation services, exercise eminent domain, enter into contracts, sue and be sued, establish rates, borrow money, issue negotiable bonds

and notes, promulgate rules and regulations, and exercise many other powers and duties. Based on the foregoing, it is the opinion of this Office that one who

would serve on the governing body of a regional transportation authority would most probably be an officer for dual office holding purposes . . .

Id- Accordingly, we believe that an individual serving on the governing board of LRTA is an officer. As a result of the aforesaid, it is our opinion that simultaneous service on the governing boards of the Jasper County Board of Elections and Voter Registration and the LRTA would violate the Constitutional prohibition against dual office holding. CONCLUSION;

For the reasons set forth above, this Office believes that it would be a violation of the dual office holding prohibition of the South Carolina Constitution for an individual to serve simultaneously as a board member of the Jasper County Board of Elections and Voter Registration and the Lowcountry Regional Transportation Authority. Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY:

reobert D. Cook
Solicitor General